R v Roberts - [2019] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBERTS
[2019] SASCFC 94
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
1 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - HEARSAY - ADMISSIBILITY
The appellant was convicted by a jury of causing harm with intent to cause harm to Ms Cheryl McKenzie (the complainant) on 5 March 2017. The appellant and complainant were then living together in a sexual relationship in a house at Murray Bridge. The complainant gave evidence that the appellant, while in an intoxicated state, grabbed her at the front door, dragged her for some distance, pushed her onto the footpath and kicked her to various parts of her body, causing various injuries. The appellant’s two brothers Stephen and Joe were both there on this day.
The complainant gave evidence that before living with the appellant, she had been in a relationship with a man, Ray, who had been violent to her. The defence case, put to the complainant in cross-examination, was that the appellant did not perform the charged assault and that it was Ray who had done it.
Neither the appellant nor Stephen Roberts gave evidence. Ray was by then dead.
The only facts in issue were: (1) that the complainant was violently assaulted; (2) that such assault caused harm to her; (3) that it was the appellant who so assaulted her; and (4) that he acted deliberately and with the intention of causing her harm.
Ground 2 of Appeal complained that a police officer attending at the scene gave evidence of two tranches of Stephen’s statements/conduct. First, that he loudly told police to leave the property and he shut the front door; and secondly that, on being told that the appellant was being arrested for assaulting the complainant, said, “If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way”. The single Judge granted permission to appeal on Ground 2.
Ground 1 of Appeal did not complain of the fact that the Judge admitted the complainant’s general evidence that the appellant was “rough to me nearly every day we were together”, namely, by “slapping [her] around, arguing…” but did complain of the admission of the complainant’s specific allegation that on 14 February 2017 the appellant had got angry with her and twisted and broken her arm, after which she had surgery. The complainant had told doctors that her injuries had been caused by her accidentally falling off a deck. The single Judge referred the question of permission to appeal on Ground 1 to this Court.
As to Ground 2, held, per Peek J (Kourakis CJ and Hughes J concurring):
The dangers involved in receiving evidence of statements or actions of persons not called as witnesses must be guarded against. The evidence as to Stephen Roberts’ statements/conduct were nebulous and highly speculative as distinct from having direct and immediate relevance to an issue arising at trial. That evidence should not have been led. Teper v The Queen [1952] AC 480; R v Kearley [1992] 2 AC 228; Pollitt v The Queen (1992) 174 CLR 558; R v Blastland [1986] AC 41; R v Szach (1980) 23 SASR 504; R v Frawley (1993) 69 A Crim R 208; R v Collie (2005) 91 SASR 339.
As to Ground 1, held, per Peek J, granting permission to appeal (Hughes J concurring):
The admissibility of discreditable conduct evidence must be assessed by reference to s 34P and associated provisions of the Evidence Act 1929. The process mandated by s 34P(2)(a) requires one to first make separate assessments of each of the two aspects “any probative value” and “any prejudicial effect” so as to decide if the prosecution has demonstrated that the former substantially outweighs the latter. As to s 34P(3), a judge is required to determine whether the permissible use can be kept sufficiently separate and distinct from the impermissible use. The Judge did not undertake a sufficient analysis of the application of s 34P and did not refer to s 34P(3) at all. Evidence Act 1929 (SA) s 34P(2)(a), s 34P(2)(b), s 34P(3) referred to. Johnson v The Queen (2018) 92 ALTR 1018; Wilson v The Queen (1970) 123 CLR 334; R v Nieterink (1999) 76 SASR 56; Roach v The Queen (2011) 242 CLR 610 considered.
Held, per Kourakis CJ, dismissing Ground 1:
The admissibility of evidence of a violent relationship between a perpetrator and a victim involved in a domestic relationship has long been held to be admissible on a charge of a violent criminal offence. The violent relationship evidence in this case was relevant to both the identity of the offender and whether his intention was to cause harm. The probative value of this evidence plainly outweighed any prejudicial effect. Evidence Act 1929 (SA) s 34P(2)(a), s 34P(3) referred to. R v Olasiuk (1973) 6 SASR 225; R v Hissey (1973) 6 SASR 280; considered.
Criminal Law Consolidation Act 1935 (SA) s 24(1); Evidence Act 1929 (SA) s 34P(2)(a), 34P(2)(b), 34P(3), referred to.
Johnson v The Queen (2018) 92 ALJR 1018; Pollitt v The Queen (1992) 174 CLR 558; R v Blastland [1986] AC 41; R v Collie (2005) 91 SASR 339; R v Frawley (1993) 63 A Crim R 208; R v Hendrie (1985) 37 SASR 581; R v Kearley [1992] 2 AC 228; R v Szach (1980) 23 SASR 504; Subramaniam v Public Prosecutor [1956] 1 WLR 965; Teper v The Queen [1952] AC 480; Walton v The Queen (1989) 166 CLR 283, discussed.
BBH v The Queen (2012) 245 CLR 499; Browne v Dunn (1893) 6 R 67; R v Nieterink (1999) 76 SASR 56; Roach v The Queen (2011) 242 CLR 610; Wilson v The Queen (1970) 123 CLR 334, considered.

R v ROBERTS
[2019] SASCFC 94
Court of Criminal Appeal: Kourakis CJ, Peek and Hughes JJ

KOURAKIS CJ: I agree that the appeal should be allowed and that a new trial should be ordered on ground 2 for the reasons given by Peek J. I would dismiss the first ground.
The admissibility of evidence of a violent relationship (violent relationship evidence) between a perpetrator and a victim involved in a domestic relationship has long been held to be admissible on a charge of a violent criminal offence. In R v Olasiuk, Bray CJ, Hogarth and Mitchell JJ held:[1]
… Evidence of threats by a person accused of murder against the deceased is admissible, if sufficiently proximate in time, to prove motive and to show the relationship between the parties, and, indeed, to prove the act of killing.
[1] (1973) 6 SASR 255 at 263-264.
In that case, as in all cases of murder, obviously enough, the evidence of threats and violence is given by persons other than the victim. In R v Hissey (Hissey),[2] Bray CJ, Hogarth and Mitchell JJ again considered the admissibility of evidence of violence between persons involved in a romantic relationship on a prosecution for murder. In Hissey, evidence was given by the deceased’s daughter that after her mother commenced living with the accused, she noticed that her mother was more frequently bruised around the face and eyes. The deceased’s son made similar observations. The Court explained that the evidence was not led as tendency evidence:[3]
Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v. The Queen). We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R. v. Ball, per Lord Atkinson at p. 68; Wilson v. The Queen, per Barwick C.J. at p. 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter.
(Citations omitted)
[2] (1973) 6 SASR 280.
[3] (1973) 6 SASR 280 at 288-289.
The violent relationship evidence in this case was therefore relevant to both the identity of the offender and whether his intention was to cause harm. It was the former element which was the primary in issue at trial; the injuries themselves supported an inference that the offender intended to cause harm. On the issue of the identity of the offender on 5 March 2017, the forensic choice was between the appellant or the complainant’s former partner, Ray. In the absence of the violent relationship evidence concerning the appellant the jury may have reasoned, particularly after the cross-examination of the complainant about Ray’s violent conduct, that Ray was more probably or, at least, possibly, the offender and not the appellant. However, on the admission of the violent relationship evidence the jury could not reason, in the appellant’s favour, that he was unlikely to be the complainant’s assailant because he was in a romantic relationship with her.
No objection was made at trial, or on appeal, to the admission of the evidence given by the complainant that the appellant would ‘slap [her] around quite a bit’ and that the appellant ‘bashed [her]’. The complainant was not cross-examined about that evidence, but nor was it admitted by the appellant. More importantly, its probative weight was diminished by its vague and general nature and the paucity of detail, particularly as to the level of violence and its temporal proximity to the offence charged. The only complaint made in ground 1 is that the complainant’s evidence of the specific assault which occurred on 14 February 2017, just weeks before the subject offending, at the Princes Highway Caravan Park in Murray Bridge, was inadmissible.
The complainant testified that on that occasion the appellant broke her arm in the course of a drunken argument over having run out of alcohol and cigarettes. The appellant did not allow the complainant to seek medical treatment lest he be reported to the police. Only two days later, and at the urging of his mother, did the appellant allow her to go to the Bridge Clinic. From there she was sent to the Murray Bridge Hospital and finally the Royal Adelaide Hospital where a metal plate was inserted in her arm.
The Judge directed the jury that the evidence of both the specific assault and the ‘bashings’ ‘might show that the events of 5 March are not coming out of the blue’ and that the events ‘do not occur in the context of a completely harmonious relationship’. The direction was not as closely aligned to the reasoning in Hissey as it might have been, but no complaint is made about that. The Judge warned the jury that it ‘would be wrong for you to conclude from the uncharged acts that the accused has a propensity to violence or that he is a bad person and convict him of the charge on those bases’.
Both the general evidence of being ‘bashed’ and the evidence of the specific assault on 14 February 2017 were given by the complainant only. For reasons which are not clear, the doctors who treated the complainant were not called. Medical evidence of the treatment received by the complainant would have corroborated her account that her arm was broken. Even though medical evidence was not called, it was accepted in the cross-examination of the complainant that she was treated for a broken arm, however, it was put to her that the history which she gave to the medical practitioners who saw her was that she fell off the deck of a cabin at the caravan park. The complainant answered that she had lied to the doctors and ‘everybody else’ to protect the appellant. When it was put to her that she had given the same account to the appellant, she answered ‘No, I didn’t tell that lie to Chris, Chris knew exactly he had broken my arm’. It was, of course, for the jury to evaluate the complainant’s credibility in that respect, but the appellant’s forensic acceptance that she was treated for a broken arm, in the context of what she testified was a violent relationship, was corroborative evidence of the specific assault and the nature of her relationship with the appellant. So too the tacit acceptance in cross-examination, that the complainant only went to the Bridge Clinic two days after her arm was broken, supported her testimony that she did not go earlier because of the appellant’s concern that he would be blamed. I acknowledge that innocent explanations for the injury can be postulated, and indeed the complainant gave such an explanation to her treating doctors. However, the complainant’s broken arm and delay in seeking medical assistance are not intractably neutral. In any event, the admissibility of the evidence for the purposes of s 34P must be determined on the premise that the complainant’s evidence will be accepted.
It was of course important to have full regard to the mandatory consideration prescribed by s 34P(3) of the Evidence Act 1929 (SA) (the Evidence Act). The risk of misuses of discreditable conduct evidence is greatest when it is admitted as propensity evidence. It is more difficult to compartmentalise specific propensity reasoning from bad person reasoning. The relevance, and permissible use, of a history of domestic violence is to demonstrate the nature of the relationship; is it characterised by empathy or antipathy? In most cases, that use is apparent to, and easily comprehended by, lay jurors and readily distinguishable from propensity reasoning. There may be some cases in which the violence is so frequent, injurious and longstanding that it is admissible pursuant to s 34P(2)(b) for a propensity purpose. In other cases, even if not admissible for that purpose the evidence may be such as to raise a risk that it will be so used. Section 34P(3) may then have an important part to play, but that was not the evidence in this trial.
As the evidence of the ‘bashing’ and the specific assault were not adduced as tendency evidence, it was a necessary and sufficient condition of its admissibility under s 34P(2)(a) that its probative value substantially outweighed any prejudicial effect. That was plainly the case here because it showed that the appellant’s romantic relationship with the complainant did not inhibit him from bashing and slapping her around, and, importantly causing her serious bodily harm just three weeks earlier. The prejudicial effect of the ‘bashing’ and the specific assault is the same. The prejudice inherent in both is that it might be misused by reasoning that the appellant is the kind of person who commits violent offences. The evidence of the specific assault did not materially add to the prejudicial effect of the evidence that the appellant bashed and slapped around the complainant. Prejudice is not necessarily accumulated by the arithmetic addition of the occasions of discreditable conduct. The prejudice lies in the error of reasoning. Even if the weighing task were to be approached in that way, it would be necessary to recognise also that the probative weight of the evidence in demonstrating the violent relationship is greater the more frequent the occasions, and the closer their temporal proximity and similarity is to the subject offence.
Of course, on the new trial close attention will have to be given to the evidential matrix in that trial in determining the admissibility of any challenged evidence.
PEEK J: The appellant was convicted by a jury of the offence of causing harm with intent to cause harm to Ms Cheryl McKenzie on 5 October 2018 contrary to s 24(1) of the Criminal Law Consolidation Act 1935.
The evidence at trial
The complainant, an Aboriginal woman,[4] gave evidence that as at 5 March 2017, she was in a sexual relationship with the appellant, an Aboriginal man, and had been since around Christmas 2016. They were living together at the house of the appellant’s mother at 2 Hawke Road, Murray Bridge. The appellant’s older brother, Stephen, also lived there and another brother, Joe, used to visit there quite a bit. The complainant stated in evidence that both Stephen and Joe were present in the house on 5 March 2017.
[4] The matter of ethnicity is mentioned here and elsewhere because it was a matter relied upon by counsel for the appellant in several contexts and particularly in the context of Ground 2 of Appeal.
The complainant gave evidence that on 5 March 2017 the appellant, who was in an intoxicated state, grabbed her at the front door, dragged her from Hawke Road to Standen Street and there pushed her onto the footpath and kicked her to various parts of her body, causing injuries which are depicted in photographs taken shortly afterwards. This is the incident the subject of the charge (the subject incident).
A prosecution witness Mr Jackson, a resident in Standen Street, gave evidence of his limited observations of the subject incident. He said that a “big commotion” came from up the street. From his front door he “could see two figures and one of them went down, bang”, which prompted him to call 000. He also heard “what I thought was an Aboriginal male yelling out, ‘stop hitting her, and stop hitting her’”. Moments later, he heard the same male say, “[y]ou’ve got to stop hitting her”, in response to which another voice said, “She’s my woman”. The last thing Mr Jackson saw was “two males with a female with her arms over their shoulders” going down the street.
The police were notified of a disturbance at about 8.20 pm and attended at the scene. After speaking to the complainant, police arrested the appellant at his home. He gave a blood alcohol reading of 0.23% on an alcotest that was administered during the charging process at the police station. He was not interviewed due to his intoxicated state.
The prosecution witness Dr Greg Dayman saw the complainant at the Royal Adelaide Hospital the day after the incident. He observed that she had sustained injuries over various parts of her body, including head, face, arms and legs. The main injuries included a laceration on top of her head, bruising on her eyes and ears, a broken nose, along with fractures of her ribs and spine vertebrae. The existence and seriousness of the injuries were confirmed by the taking of police and medical photographs.
The complainant also gave evidence that immediately before she commenced to live with the appellant she had been in a relationship with a man called Ray, who “was doing the same thing to me”. She said that he would “slap me around quite a bit”, that “he bashed me”, that he was a drinker and that he was still making contact “on a friendship basis” with her while she was living with the appellant. She said that “I have been in many a physical assault where I have given a guy another chance.”

The defence case, as put to the complainant in cross-examination, was that the appellant had not performed the charged assault and that in fact it was Ray who had done so. During cross-examination of the complainant it was put:
-“You had gone to meet him [Raymond Wilson] and you were found by Chris [the appellant] and his brother shortly after Raymond Wilson had beaten you?”; and
-“They picked you up off the ground and walked you back to Chris’s mother’s house, didn’t they?”
Those propositions (the two cross-examination propositions) were emphatically denied by the complainant. The appellant did not give or call evidence in his defence.
The grounds of appeal
The grounds of appeal are as follows:
1. The learned trial Judge erred in admitting evidence as to the Appellant having broken the arm of the complainant on a previous occasion, and the admission of the evidence operated against the Appellant so as to cause a miscarriage of justice.
2. The learned trial Judge erred at law in admitting evidence of words spoken out of Court by a person not called as a witness (Stephen Roberts), and the admission of that evidence operated against the Appellant so as to cause a miscarriage of justice.
The Single Judge granted permission to appeal on Ground 2 and referred the application for permission to appeal on Ground 1 to this Court. It is convenient to first consider Ground 2.
Ground 2 of Appeal – Stephen Roberts’ actions and spoken words
There are two distinct tranches of evidence here under consideration. First, evidence by Brevet Sergeant Parkinson of certain actions by Stephen Roberts when Parkinson arrived at his home. Secondly, evidence by Parkinson of a later statement made by Stephen Roberts as the appellant was being arrested and cautioned by Senior Constable Grouch.
Parkinson attended at the scene as a result of a report (presumably the 000 call by Mr Jackson) that an incident had taken place. He then attended at the house at 2 Hawke Road where the door was answered by Stephen Roberts, one of the appellant’s two brothers. Parkinson then stated that he wished to check on the welfare of occupants of the house. Stephen Roberts was moderately intoxicated and initially told Parkinson in a loud voice to leave the property and shut the door. This is the first tranche of evidence complained of in Ground 2.
A little later, Stephen Roberts brought the appellant to the door with the complainant behind him. She appeared “facially battered”. Parkinson then took her outside and spoke to her alone, at which time she apparently made complaint that the appellant had committed the subject offence. She was then placed in Parkinson’s police car. By this time Senior Constable Grouch had arrived in another police car. Grouch then spoke to Parkinson and then proceeded to arrest the appellant, no doubt on the basis of what Parkinson told him.
Grouch was in the process of arresting the appellant and reading him his rights when Parkinson said to Stephen Roberts that the appellant was getting arrested for assault on the complainant. Parkinson gave evidence (led over strong objection by the defence) that Stephen Roberts then said: “If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way”. This is the second tranche of evidence complained of in Ground 2.
On the hearing of the appeal, the prosecution attempted to justify the admission of both tranches of evidence by reference to well-known authorities standing for the proposition that in some circumstances a person's state of mind may be proved by contemporaneous acts or statements made by that person, relying principally upon Walton v The Queen[5] and R v Hendrie.[6]
[5] (1989) 166 CLR 283.
[6] (1985) 37 SASR 581.
However, it is necessary to consider at least two matters here: first, the basis of the particular decisions such as Walton and Hendrie; and, secondly, the broader state of the authorities in the area.
The basis of the particular decisions in Walton v The Queen and R v Hendrie
In Walton, an accomplice of Walton gave admissible evidence that on 4 December 1985 Walton told her that he had arranged to meet the deceased at the Elizabeth Town Centre at 7.00 pm on the following evening, and that at about 11.30 pm on 5 December 1985, he arrived home covered in blood and told her that he had picked up the deceased at the bus station at the Elizabeth Town Centre just after 7.00 pm, that they had driven to a hotel and later into the country, and that he had there killed her with a rock and a hammer. Walton gave evidence on oath, specifically denying all of the above evidence. The prosecution tendered a number of items of evidence in order to corroborate the accomplice.
The challenged evidence of Mrs Stitt is representative of that evidence. She gave evidence over objection that the deceased had told her that she was going to meet Walton at the Elizabeth Town Centre on 5 December 1985 and that she was going to the Centre by bus.[7] The Court held that the evidence of the intention of the deceased (as expressed to Mrs Stitt) was admissible circumstantial evidence tending to prove by inference that she was likely to have acted on that intention.
[7] Evidence was also given that a bus ticket was found in a pocket of the deceased's clothing and a bus driver gave evidence that it was sold by him on 5 December 1985 on a run which included a stop at which the deceased might have been expected to board the bus; a bus on that run would have arrived at the Town Centre stop just before 6.50 pm if it were on schedule.
In summary then, whether the deceased did or did not meet Walton at the Elizabeth Town Centre on 5 December 1985 at 7.00 pm was clearly an important fact in issue and the challenged evidence of Mrs Stitt as to what the deceased had told her was unequivocally directed to that clear fact in issue.
In Hendrie, the deceased, Mrs Olds, was residing with her husband, Mr Olds at Lambert Road, Royston Park. Mr Olds left home at about 8.00 am when Mrs Olds was alive. He returned home at about 5.00 pm to discover her dead, lying on the bed in the bedroom, partly clothed. She had been raped and strangled. Marks on her wrists indicated that they had been bound and there was a length of flex at her side. There were indications of a struggle in the bedroom but nowhere else. Two mugs in the kitchen had apparently been used for coffee at some time during the day; one contained dregs of sweetened coffee and there was evidence that Hendrie drank sweetened coffee.
Hendrie was a house renovator. He had done a considerable amount of work on their house previously and had agreed to do some further work for them. The prosecution case was circumstantial and depended largely upon forensic evidence connecting the crime scene with Hendrie and his house; and other evidence such as a van resembling the appellant's van being seen in Lambert Road that day. However, Hendrie gave evidence on oath that he had not been in Lambert Road on the day in question and that he was not in any way responsible for her death.
The challenged evidence was Mr Olds’ evidence of a conversation between him and Mrs Olds prior to the day of her death in which they had discussed and decided upon a project to convert a window in the bedroom into a door, thus enabling part of the carport to be used as a breakfast patio. This was objected to as inadmissible hearsay. The Court held that the conversation was admissible as tending to establish an intention on the part of the deceased to progress this project, thereby making it the more likely that Hendrie would have been in that bedroom discussing that project.
Once again in summary, whether the deceased did or did not meet Hendrie at her home, in the bedroom, on the day of her death was clearly an important fact in issue (just as in Walton) and the challenged evidence of her husband was unequivocally directed to that fact in issue.
The broader state of the authorities in the area
Although the decisions in cases such as Walton and Hendrie are unexceptionable, the danger of proliferation of tendering of evidence of statements or actions of persons not called as witnesses must be guarded against. One well-known cautionary statement is that of Lord Normand in the Privy Council decision in Teper v The Queen:[8]
The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.
[8] [1952] AC 480, 486.
Another is that of Lord Ackner in the decision of the House of Lords in R v Kearley where his Lordship observed:[9]
I believe, however, that it is dangerous to judge the merits of the application of this rule or any other rule concerning the admissibility of evidence in a jury criminal trial by a visceral reaction as to its utility, the so-called "appeal to common sense." As pointed out by my noble and learned friend, Lord Bridge of Harwich, in his speech in Reg. v. Blastland [1986] AC 41, 54, the rationale of excluding hearsay evidence as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can be properly given to a statement by a person whom the jury has not seen or heard and which has not been subject to any test of reliability by cross-examination.
[9] [1992] 2 AC 228, 258.
While such cautionary comments are often couched in terms of “hearsay evidence”, it is clear that what is being addressed is the situation of evidence being adduced of what someone said without that person being present in court to be cross-examined. Thus in the decision of the High Court in Pollitt v The Queen, Dawson and Gaudron JJ in their joint judgment stated:[10]
However, there may be cases where its relevance is so tenuous and, hence, its probative value so slight that, as a matter of discretion [High Court footnote 35: But cf. Reg. v. Blastland [1986] AC 41 where it was held that unless the statement is "directly in issue ... or of direct and immediate relevance to an issue at the trial", it is inadmissible.] it should be excluded. There will also be cases where the evidence should be excluded as a matter of discretion because it contains an assertion which cannot be tested by cross-examination and there is a danger that a direction to treat the statement as a fact, and not as proving the truth of any assertion contained in it, may be ineffective. The absence of an opportunity for cross-examination is often advanced in explanation of the hearsay rule [See, for example, Lejzor Teper v. The Queen (1952) AC 480, at p 486 and Reg. v. Kearley (1992) 2 WLR, per Lord Ackner at pp 676, 679; per Lord Oliver of Aylmerton at p 680], but the same problem can arise even though the evidence is led to prove what was said, rather than what was asserted, in the statement. [Emphasis added]
[10] (1992) 174 CLR 558, 603.
Comments to the same effect were made in Pollitt by each of Mason CJ, Brennan J, Deane J, Toohey J and McHugh J.[11]
[11] (1992) 174 CLR 558 at 566, 573, 593, 610 and 620 respectively.
In Pollitt, the complicated facts may be briefly stated for present purposes in the form that the man Allen had hired Pollitt to murder a particular individual, but Pollitt had mistakenly killed the wrong person and was charged with the murder of that person. Allen died before the trial. The challenged evidence was part of the evidence of Mr and Mrs Berry who were friends of Allen and had had a number of conversations with him during which he stated inter alia that Pollitt had killed the wrong person. The challenged portion of the evidence under consideration was admitted against Pollitt on the basis that it established the state of mind of Allen at the time of the relevant conversation and thus, by inference, it tended to establish the existence of a plot to commit murder to which Allen was a party. Mason CJ rejected that line of reasoning and stated:[12]
It is well accepted that an out-of-court statement is admissible to prove the maker's state of mind, intention or knowledge and that the reception of the statement does not infringe the hearsay rule … But I do not see how Allen's state of mind was relevant to the issues which fell for determination by the jury. Allen's state of mind was something quite apart from the existence of an agreement between Allen and the killer for the killing of Williams and the botched execution of that agreement by the killer which, on the Crown case, gave rise to the telephone conversation between Allen and the killer. A statement made to a witness by a third party is only admissible in evidence to prove the maker's state of mind when the state of mind evidenced by the statement is "either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial" [Here citing R v Blastland [1986] AC 41, per Lord Bridge of Harwich at p 54].
Once it is accepted that Allen's state of mind was not relevant to the issues for determination, the actual decision in Walton has no bearing on the present case. [Emphasis added]
[12] (1992) 174 CLR 558, 564–565.
This conclusion was concurred in by Brennan J, Deane J, Toohey J and McHugh J; Dawson and Gaudron JJ contra.
In Pollitt, Brennan J gave valuable guidance to the practical approach to be taken in cases such as the present. His Honour recognised that, in certain circumstances, evidence may be given of an action or statement made by a person to prove only the fact that the action or statement occurred (as distinct from any testimonial inference).[13] However, his Honour emphasised that “the fact that the action or statement occurred” must be relevant to a fact in issue and this relevance must be clearly demonstrated. His Honour stated:[14]
The first condition of admissibility of evidence is relevance: … a fact which evidence is tendered to prove (a “fact to be proved”) must be a fact in issue or a fact relevant to a fact in issue. Where a fact to be proved is a fact in issue, admissibility of evidence tendered to prove it depends solely on the manner in which that evidence tends to establish the fact to be proved. Where a fact to be proved is a fact relevant to a fact in issue, admissibility depends first on the manner in which that evidence tends to establish the fact to be proved and, secondly, on the relevance of the fact to be proved to a fact in issue. I respectfully agree with Lord Oliver of Aylmertonthat “relevant” cannot be better defined than by the definition in Art. 1 of Stephen's Digest of the Law of Evidence:
“any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connexion with other facts proves or renders probable the past, present, or future existence or non-existence of the other.”[15] [Citations omitted]
[13] The statement by the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970 is often referred to: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
[14] (1992) 174 CLR 558, 571.
[15] I note that in the more recent decision of the High Court in BBH v The Queen (2012) 245 CLR 499, in circumstances where there was no applicable statutory test of relevance under Queensland legislation (just as there is none under South Australian legislation), French CJ at paragraph [51] cited with approval the above passage from Stephen's Digest of the Law of Evidence.
His Honour referred to some classes of cases involving out-of-court statements not presently relevant and also to the distinction between hearsay and original evidence. Of relevance to the present situation, he observed:[16]
Evidence of an out-of-court statement may tend to establish a fact to be proved … because that fact …, when taken together with other facts established by evidence or common experience, tends to establish the fact to be proved — in which case the evidence is original evidence.
[16] (1992) 174 CLR 558, 571.
His Honour added as to the distinction between hearsay and original evidence thus:[17]
To make the required distinction, it is necessary to ascertain the manner by which the evidence tends to prove the fact to be proved. The distinction may be extremely fine between a case where the existence of a fact to be proved is to be implied in (though not expressly asserted by) what the maker of the statement said and a case where the existence of a fact to be proved is to be inferred from the fact that the statement was made in the circumstances in which it was made. A distinction so fine that it turns on the difference between an implication from what the maker of a statement has said and an inference of fact drawn from the making of a statement in the surrounding circumstances is likely to produce uncertainty in classification. The distinction calls for a precise identification of the probative relationship between the statement and the fact to be proved, that is, the manner in which the tribunal of fact is invited to reason from the statement to the fact to be proved. [Emphasis added]
[17] (1992) 174 CLR 558, 572–573.
His Honour further stated:[18]
In considering evidence of this class, the relevance of the making of the statement to the fact to be proved and the relevance of the fact to be proved to the fact in issue are of critical importance. Although relevance for the purpose of determining admissibility falls for decision by the trial judge, it is ascertained according to common experience. Judicial minds have sometimes differed as to the capacity of evidence of the making of a statement to found an inference of a particular fact and have sometimes differed as to the relevance of the fact to be proved to a fact in issue. [Citations omitted]
[18] (1992) 174 CLR 558, 575.
Finally, Brennan J referred with apparent approval to the decision of the Privy Council in R v Blastland[19] and said of that decision:[20]
In the absence of evidence showing how that person came by knowledge of the murder, the fact of his knowledge was irrelevant to the issues. The statement was held inadmissible. If that person's statement had been treated as implying an admission by him of implication in murder, it would have been classified as hearsay and evidence of the statement would have been rejected on that ground.
[19] [1986] AC 41.
[20] (1992) 174 CLR 558, 578.
It is well to pause and consider the decision in R v Blastland. The Privy Council emphasised that such evidence as that presently under consideration should only be received if it is of direct and immediate relevance to an issue which arises at the trial. The facts were in brief that the appellant was convicted of the murder of a boy. His defence was that he had sexually molested the boy but had left him physically unharmed and that one Mark, a homosexual who had witnessed the molestation, had later himself molested the boy and then killed him. At trial, the appellant sought to lead evidence that Mark had stated to a third party that he knew that the boy had been murdered before there was any publication of that fact in the media. That evidence was rejected at trial and on appeal. Lord Bridge of Hawick stated:[21]
It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person's state of mind. This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial. It is at this point, as it seems to me, that the argument for the appellant breaks down. The issue at the trial of the appellant was whether it was proved that the appellant had buggered and murdered Karl Fletcher. Mark's knowledge that Karl had been murdered was neither itself in issue, nor was it, per se, of any relevance to the issue. What was relevant was not the fact of Mark's knowledge but how he had come by that knowledge. He might have done so in a number of ways, but the two most obvious possibilities were either that he had witnessed the commission of the murder by the appellant or that he had committed it himself. The statements which it was sought to prove that Mark made, indicating his knowledge of the murder, provided no rational basis whatever on which the jury could be invited to draw an inference as to the source of that knowledge. To do so would have been mere speculation. … [Emphasis added]
[21] [1986] AC 41, 53.

Indeed, the preponderance of Australian cases have taken much the same approach as that in Blastland. Thus the 1980 decision of King CJ in R v Szach (where the facts rather resembled those in the later case of Blastland) is to be compared to, or contrasted with, his Honour's decision in the factually very different case of Hendrie reviewed above. In Szach, the appellant contended that one Gambardella (who was not called as a witness) had, at the relevant time, been on the premises where the murder had occurred and had falsely denied that presence to police; it was sought to prove that false denial through cross-examination of the police officer on the basis that it displayed a consciousness of guilt of the offence. King CJ held that the proffered evidence was inadmissible on the basis that, although it was consistent with consciousness of guilt of murder, it was also consistent with other states of mind, and therefore equivocal. His Honour said:[22]
Despite the earnest and detailed arguments put by Mr. Johnston Q.C. I am unable to reach the conclusion that the false denial had any probative potential in the circumstances of the present case. It was only a false denial if the jury accepted on the basis of the evidence of Shields that Gambardella was in the premises that night. If he was in the premises, he must have been involved in some way which would give rise to a motive to conceal his presence. He must have been involved, either in the crime itself, or in the process of concealing the body, cleaning up the premises or removing clues. To my mind the false denial adds nothing to the evidence of his presence in the premises. No doubt the false denial may indicate some consciousness of guilt. But in the circumstances it is entirely equivocal as to Gambardella's involvement in the crime. In my opinion, it does not tend to establish that Gambardella committed the crime, still less that he committed the crime to the exclusion of the accused. In my opinion the passage was rightly excluded. [Emphasis added]
[22] (1980) 23 SASR 504, 575–576.
His Honour again demonstrated the need for specific probative value in a slightly different way in the context of the associated Ground 4 of Appeal.[23] But perhaps most importantly, his Honour propounded the following principle:[24]
If the evidence possesses no probative value, in the sense that it is not fairly capable of establishing or negativing a relevant fact, it is irrelevant and inadmissible. I refer to these basic principles of the law of evidence because I think that it is of some importance for a trial judge to remind himself of them when he is confronted with the tender of material containing hearsay, which is said to be probative apart from the truth of the narrative. Hearsay material should not be placed before a jury unless the statement containing it possesses a genuinely probative potential apart from the hearsay narrative. If it possesses no such potential, it should be firmly rejected. [Emphasis added]
[23] (1980) 23 SASR 504, 576: “The second passage in the statement of Gambardella, which was tendered by the defence and rejected by the learned Judge, is as follows: ‘Recently when Derrance was defending a man called Celon in a murder case, David told me that Derrance had said the best way to hide evidence from forensic pathology was to freeze the body after the killing.’ Derrance is the deceased and David the accused. Any knowledge by Gambardella at the time of the crime of the effects of freezing a body would be relevant, in my opinion, as tending to implicate him as the murderer. A person’s statements are admissible to prove that he possessed at the time of making the statement the knowledge disclosed by the statement. The statement in question, however, was made on the 10^th June. The making of the statement proves Gambardella’s state of knowledge on the 10^th June, not at the date of the crime six days earlier. In view of what had occurred and Gambardella’s knowledge of what had occurred, it would not be legitimate to infer that because he possessed this knowledge on 10^th June he would or might have possessed it on 4^th June. To show that Gambardella possessed the knowledge prior to the commission of the crime, it is necessary to treat the statement as proof of the truth of what it states, namely that Gambardella was given the information while the deceased was still living. To use the statement in that way would be inadmissible as infringing the hearsay rule. In my opinion, this statement was also rightly rejected.”
[24] (1980) 23 SASR 504, 575.
In 1993 Gleeson CJ took the same cautious approach to such evidence in R v Frawley. The accused was charged with murdering his de facto wife during a loud and violent argument. They had been living together for about three years and there was (admissible) evidence of loud arguments and violent exchanges between them. The challenged evidence was that the deceased had made various statements in writing and orally to other persons including comments that she was afraid of the accused. In ruling this inadmissible, his Honour said:[25]
The handwritten note was direct evidence of some facts and hearsay as to other facts, many of which were obviously irrelevant. It was direct evidence of the fact that the deceased could write; it was hearsay evidence of the fact that the appellant was impolite to visitors. Neither of those two facts was relevant. There are, it seems to me, only three possibly relevant facts of which it was direct evidence, and it is necessary to consider the relevance of each of these in turn.
First, the note was direct evidence of the fact that the deceased had made a list of reasons for terminating her relationship with the appellant, from which it might be inferred that she was contemplating such a termination. There is, however, no evidence that she ever told that to the appellant. That fact, therefore, does not tend to prove that he intended to kill the deceased, or had a motive for doing so, or even (although this was not seriously in issue) that it was the appellant who killed the deceased.
Secondly, the note was direct evidence of the deceased's state of mind in various respects. Her annoyance at the appellant's treatment of her dog was an irrelevant state of mind. What, however, of her fear of the deceased and her apprehension of violence? The fact that the deceased feared the appellant does not tend to prove that he killed her, or that he acted towards her with a certain intent. What would tend to prove that would be evidence that the fear was well-founded on the basis of past happenings, but that is the very matter which the document cannot be used to prove.
Thirdly, the document was direct evidence of the fact that the deceased, in a private diary note, made statements severely critical of the appellant. There is no evidence that she communicated those statements to him. I am unable to see how this fact has probative significance in relation to an issue in the case.
[25] (1993) 69 A Crim R 208, 223. His Honour was then Chief Justice of NSW rather than the High Court.
In the later decision of this Court in R v Collie, Duggan J referred with approval to the Judgment of Gleeson CJ in Frawley and later concluded:[26]
79. It is difficult to see how the expressions of fear of the appellant and the comments made about him were relevant to a fact in issue. There is no suggestion that the comments were conveyed to the appellant. The most that could be said is that they indicate an attitude of mind which may or may not have impacted on the way in which the deceased reacted to the appellant in his presence. The statements which reveal the deceased's state of mind do not take the matter any further from the point of view of relevance than the statements as to fear of the accused which were found to be inadmissible in Frawley's case.
80. Although it is clear that the evidence in this category discloses the state of mind of Ms Hoppo at the time she made the statements, her state of mind does not appear to be of any relevance to a fact in issue. In my view the evidence in this third category was inadmissible.
[26] (2005) 91 SASR 339, 355. These remarks were made by Duggan J in the context of Ground 2 of Appeal as to which his Honour ultimately decided that the proviso should be applied. Both Doyle CJ and Vanstone J specifically agreed with Duggan J’s analysis of all Grounds of Appeal except for Ground 5 of Appeal (on a quite different topic).
The situation in the present case
At trial, the Judge in the present case admitted the evidence under consideration and summarised his reasons for doing so thus:
In this case the permissible use for the evidence, both of the brother refusing police entry and the utterance, is to rebut the suggestion put to the complainant in cross-examination that she was assaulted by someone else and her partner and his brother came to her aid by picking her up from the road where she’d been injured by someone else and taking her back to the house. Now, the brother’s reaction in your client’s presence suggests that that may not be so and it is, in my view, permissible for the Crown to make that observation to the jury.
The Judge directed the jury thus:
The evidence of what happened when Brevet Sergeant Parkinson came to the front door of the house in Hawke Street and later spoke to Stephen can be used by you to rebut any suggestion that the first the accused knew of Ms McKenzie being beaten up was finding her in the street, and, with his brother, helping her back to the house. The brother’s refusing the police entry into the house might make that proposition look less likely. What Stephen said to Parkinson when his brother was being arrested also might make that less likely.
On appeal, the prosecution submitted in writing that:
26. The evidence of the conduct and words uttered by Stephen Roberts was relevant and admissible on the prosecution case in light of the manner in which the victim was cross-examined. The defence case was that Raymond Wilson had assaulted the victim and that the appellant and one of his brothers attended to her moments after the assault and took her back to their mother’s house. The implication of that is that the appellant and his family had helped the victim after a violent attack. The injuries sustained by the victim would have been obvious to anyone at the house. The evidence of the obstructive conduct and hostile words of Stephen Roberts were inconsistent with what was being put on the defence case, as the trial judge instructed the jury:
The evidence of what happened when Brevet Sergeant Parkinson came to the front door of the house in Hawke Street and later spoke to Stephen can be used by you to rebut any suggestion that the first the accused knew of Ms McKenzie being beaten up was finding her in the street, and, with his brother, helping her back to the house. The brother’s refusing the police entry into the house might make that proposition look less likely. What Stephen said to Parkinson when his brother was being arrested also might make that less likely: summing up, pg 6 [3].
27. Given the nature of the particular propositions that were put to the victim in cross-examination about the role of the appellant and his brother in coming to her aid, the statement and conduct of Stephen Roberts was relevant and admissible. The statement was not being relied upon by the prosecution in a hearsay or testimonial manner, indeed, it was incapable of a hearsay or testimonial use. The statement was an expression of anger or hostility uttered by Stephen Roberts when he was told the appellant was going to be arrested. Such anger and hostility – coming from a member of the house that had supposedly just helped the victim after a violent attack – was inconsistent with a key part of the defence case. Accordingly, the conduct and words uttered by Stephen Roberts rendered less likely the defence proposition that the appellant assisted the victim back to the house after she was assaulted by Raymond Wilson.
Consideration
At the commencement of the case, when the appellant pleaded “Not Guilty”, the only facts in issue were as follows. First, that on 5 March 2017 near Hawke Road, Murray Bridge the complainant was violently assaulted. Secondly, that such violent assault caused harm to her. Thirdly, that it was the appellant who so assaulted her. Fourthly, that he acted deliberately and with the intention of causing harm to her.
As noted above, counsel put the defence case in the form of the two cross-examination propositions referred to at paragraph [19] above. They were denied by the complainant but the cross-examination fairly indicated that the defence would contend that it was reasonably possible that it was the man Ray, and not the appellant, who violently assaulted the complainant, a matter that went directly to a fact in issue, whether it was the appellant who assaulted the complainant.
However, it is to be noted that what was put was that “you were found by Chris [the appellant] and his brother …”. As noted above, the complainant gave evidence that both of the appellant’s two brothers Stephen and Joe were present at the house that day and it is impossible to say to which of those two brothers the words “and his brother” might refer. Further, it must be remembered that the mere putting of propositions in cross-examination (in the absence of acceptance by the witness) in no way constituted evidence in the case. Rather, it was no more that the fair putting of the essential defence case to the primary prosecution witness in recognition of the rule in Browne v Dunn.[27]
[27] (1893) 6 R 67.
In such circumstances, it was indeed open to the prosecution to call further evidence (even though not opened upon), directed to prove that it was not reasonably possible that it was the man Ray who had violently assaulted the complainant. But importantly, such evidence had to be admissible evidence. There may have been several ways in which this could have been done. The most obvious way, namely to call Ray to give evidence, was not possible because Ray had died between 5 March 2017 and the date of trial. Other ways obviously existed, such as proof that Ray was elsewhere at the time of the assault through evidence of his acquaintances or potentially through police custody records or hospital records. No such possibilities were pursued.
The situation ultimately presented in the present case
The situation ultimately presented here is that, even taking into account the putting of the two cross-examination propositions, the only fact in issue to which the two tranches of evidence could be relevant is “whether it was a reasonable possibility that it was Ray who committed the assault rather than the appellant?”[28]
[28] It may be suggested that the only fact in issue as to which the two tranches of evidence could be relevant remained “whether it was the appellant who committed the assault?” That might well be so, but the subsequent analysis would be exactly the same.
In my view, both tranches of the evidence were nebulous and highly speculative as distinct from “of direct and immediate relevance to an issue which arises at the trial”.[29]
[29] R v Blastland [1986] AC 41, 53.
As to the first tranche, Stephen Roberts’ less than cordial welcome of police arriving at his home was entirely consistent with personal beliefs or feelings he holds about police which could be referable to any number of reasons or previous experiences. I agree with Mr Lang’s submission:
Stephen Roberts was an Aboriginal man confronting police at his front door. Often “inexplicable” tensions arise between the police and Aboriginal householders, in ways and for reasons not necessarily amenable to jury common sense, nor necessarily connected with any crime.
As to the second tranche, the prosecution position appears to be that if the appellant did assault the complainant (the ultimate issue I would have thought), Stephen Roberts’ statement was “consistent” with knowledge that this was so. Apart from anything else, the danger of circularity of reasoning here is particularly high; there was in fact no evidence at all that Stephen Roberts knew anything as to who assaulted the complainant and this lacuna is only the more pronounced when it is appreciated that he was one of two brothers of the appellant present at the house.
Put another way, as a matter of basal principle, this is simply not the type of clear and unequivocal “state of mind” evidence referred to in authorities such as Hendrie and Walton. Apart from anything else, Stephen Roberts’ words were entirely consistent with him being of the belief that the complainant was making a false allegation of assault about his brother, as to which conduct there should be consequences (rightly or wrongly). Again, I cannot but agree with Mr Lang’s submission:
The words ascribed to him “if she’s saying those things” are consistent with a perception she was making false allegations or was otherwise being disrespectful, as opposed to him trying to cover up a crime. In any event they are unhelpful without knowing precisely what things he was referring to. …
It is impossible to discern what Stephen Roberts would have meant by “Aboriginal Way”, but the evidence may well have conjured unpleasant stereotypes in the minds of non-Aboriginal jurors.
The correct position in relation to both tranches of evidence is that the prosecution were simply not permitted to tender evidence of an action or statement of a person, who they were not prepared to call, on some sort of ‘prophylactic’ basis that the jury might consider that the words were consistent with a prosecution case theory.[30]
[30] I should hasten to add that if Stephen Roberts had been called as a witness by the defence, he could have been cross-examined on the content of both tranches of evidence and, in the unlikely event that he denied such matters, there was the possibility of leading that evidence in a rebuttal case by recalling Parkinson. The prosecution could not be accused of “splitting its case” if the evidence to be tendered in rebuttal had been correctly rejected as admissible in its main case.
I consider that Ground 2 of Appeal is made out and that a re-trial should therefore be ordered.
Ground 1 – An uncharged act alleged to have occurred on 14 February 2017
At trial, the prosecution sought to lead, over objection, two tranches of evidence concerning the relationship between the complainant and the appellant.
The first tranche was general evidence concerning the nature of the relationship. The complainant gave evidence that the appellant was “rough to me nearly every day we were together” and that by ‘rough’ she meant “slapping around, arguing, be at me to go see my sister to borrow some money to get a cask or get some smokes or something”. The complainant was asked on two occasions why she stayed with the appellant in light of his violent treatment of her and said that it was because she had nowhere else to go. The admission of this first tranche of evidence is not objected to on this appeal.
The second tranche was evidence of an alleged specific uncharged assault by the appellant on 14 February 2017 at the Princes Highway Caravan Park, this evidence being the subject of Ground 1 of Appeal (the 14 February 2017 incident). The complainant alleged that on this occasion she and the appellant had been drinking and that he had got angry with her and had twisted and broken her arm; that a couple of days later, she sought and received medical treatment which included the insertion of a metal plate. In cross-examination, she stated that she had given a false history to doctors of having fallen off the deck of a cabin at the caravan park. She further said that she had lied to protect the appellant.
The Judge admitted this evidence over objection but gave no reasons.
Since there is to be a re-trial, a question may again arise as to whether evidence of the 14 February 2017 incident should be admitted. However, it appears likely that the factual matrix against which such a decision will be made by the trial Judge may be materially different to that presented to this Court and I will restrict analysis to the correct approach to the matter and leave it to the trial Judge to apply that approach to the concrete factual matrix eventually presented.
The relevant statutory provisions

In South Australia, the admissibility of such discreditable conduct evidence in a particular case must be assessed by reference to s 34P and associated provisions of the Evidence Act 1929 (the Act) which provide as follows:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence 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).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
The correct approach to evidence tendered pursuant to s 34P(2)(a)
In the present case, at trial (and on appeal), the prosecution eschewed any reliance on s 34P(2)(b) of the Act and contended that the evidence satisfied the requirements of s 34P(2)(a).
I must say that I wonder if the correct focus of admissibility here should be s 34P(2)(b) rather than s 34P(2)(a); I do not consider that the prosecution would be precluded at the re-trial from seeking to rely on s 34P(2)(b) because they have up to now chosen s 34P(2)(a). Of course, reliance on s 34P(2)(b) would mean satisfaction of the higher bar within that sub-section; but no submissions have been made as to that and it would be a matter for the Judge on the re-trial to consider if raised.
As to s 34P(2)(a), on a trial of a charge that one partner assaulted the other partner in the course of a domestic relationship, the prosecution not uncommonly contends that there is “a permitted use” under s 34P(2) for the reception of evidence of prior violent conduct (sometimes referred to as “relationship evidence”[31]). The only “permitted use” here is said to be that such evidence is relevant to a fact in issue (the occurrence of the alleged assault) on the basis of what is sometimes referred to in shorthand form as “the assault did not come out of the blue argument” (the out of the blue argument).
[31] See generally: Wilson v The Queen (1970) 123 CLR 334; R v Nieterink (1999) 76 SASR 56 and Roach v The Queen (2011) 242 CLR 610. Concerning the decision of the High Court in Roach, it is to be emphasised that the Queensland legislation there under consideration rendered such evidence admissible, subject only to a residual power to exclude for unfairness. This is a far lower bar to admission than that presented by the s 34P regime in South Australia.
The expanded out of the blue rationale is that if only the evidence of the specific allegation of the subject assault is led, and no reference is made to the violent nature of a surrounding relationship, it is not unlikely that members of a jury may gain the impression that the assault charged involves an incongruous, unprovoked and unexplained occurrence in the course of a normal and harmonious relationship; this may lead to a predilection to thereby doubt the version of the complainant on that basis.
The out of the blue rationale is very often linked to (and thereby strengthened by) either or both of two further supporting matters. First, a situation where the complainant greatly delays any report to police, such delay being genuinely explicable by the complainant having become inured to such assaults and/or terrified of the repercussions likely to follow a police report. Second, and importantly, a situation where the existence of the violent relationship (although not the commission of the subject offence itself) is established or confirmed by evidence independent of the complainant.
Consideration
The process mandated by s 34P(2)(a) requires that, as a condition to admissibility, the prosecution must positively demonstrate that “the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant”. One must first make separate assessments of each of the two aspects “any probative value” and “any prejudicial effect” so as to be able to decide if the prosecution have demonstrated that the former substantially outweighs the latter. I therefore proceed to consider those two aspects.
“The probative value of the evidence admitted for a permissible use”
In the joint judgment of the High Court in Johnson v The Queen it is stated in relation to s 34P of the Act:[32]
18. … The expression "probative value" is not defined in the Evidence Act. It was not in issue that the expression is to be understood in the way it is defined in the Uniform Evidence Acts as the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The fact in issue on the trial of each of the remaining counts was the occurrence of the offence.
[32] (2018) 92 ALJR 1018, 1023.
The rationale for probative value of the asserted permissible use here is spelt out above. Turning to the present case in particular, it may be contended in favour of the prosecution that, if one puts aside the 14 February 2017 incident, there is an apparent difference in the evidence of the complainant as between the “usual” degree of violence (“he was rough to me” – “slapping [me] around”) and the high degree of violence alleged to be involved in the subject assault. Thus, it may be contended that the relationship actually involved a level of violence higher than might be appreciated from the complainant’s evidence and that mention of the 14 February 2017 incident was therefore justifiable.
However, there are also several matters that may tend to restrict the probative value of such evidence. The “out of the blue” rationale is here quite narrow. First, there is no justification of admission by reference to legitimately explaining a delay in complaining to police, since no delay occurred here.
Secondly, the existence of the violent relationship depends entirely on the (contested) word of the complainant; it is not here established or confirmed by evidence independent of the complainant. Here, the 14 February 2017 incident allegation depended on the complainant’s evidence and was led on the basis that she had initially given a quite different version as to how the injury had been sustained, namely an accidental fall; there was no evidence confirmatory of the complainant’s evidence that the 14 February 2017 incident had occurred as a result of an assault rather than a fall; and if it had occurred as a result of an assault, there was no confirmatory evidence that the perpetrator was the appellant rather than Ray (in circumstances where the complainant agreed that first, Ray had violently assaulted her in the course of their relationship and second, she was still seeing Ray “on a friendship basis”).
(A)ny prejudicial effect it may have on the defendant
There are a number of matters relevant to an assessment of “any prejudicial effect it may have on the defendant”. Although the prosecution eschewed any reliance on s 34P(2)(b), the question arises under s 34P(2)(a) and s 34P(3) as to the extent of the risk that the jury might adopt a process of propensity reasoning due to the doubling of the number of allegations of a high level of violence in circumstances where the allegations appeared superficially similar. The prosecution refrained from calling medical evidence concerning the 14 February 2017 incident and, in particular, the details of the complainant's injuries and the surgical operation performed, thus denying the appellant the ability to cross-examine as to whether such injuries were more consistent with her original history of falling from a deck than her later version of an assault.
As to s 34P(3), a judge is thereby specifically required, when determining the question in subsection (2)(a), to “have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose”. It is quite evident from the transcript that the Judge did not undertake a sufficient analysis of the application of s 34P and did not refer to s 34P(3) at all; but at a re-trial the question of the application of s 34P(3) may be not unimportant.
I would grant permission to appeal on Ground 1. It is unnecessary to say anything further, since the making out of Ground 2 necessitates that there be a re-trial. It will be for the Judge on such a re-trial to determine, on the evidence then to be led, whether the presently impugned evidence may be received into evidence if objected to.
Disposition
I would allow the appeal and order a re-trial on the Information.
HUGHES J: I agree that the appeal should be allowed for the reasons given by Peek J.