R v TB (No 7)

Case [2025] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v TB & ANOR (No 7)

[2025] SASC 124

Judgment of the Honourable Justice Kimber  

4 August 2025

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS

CRIMINAL LAW - EVIDENCE - RELEVANCE

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - EMBARRASSMENT OR PREJUDICE

The defendants are alleged to have committed various offences while members of the Comanchero Motorcycle Club (the Comancheros).  Count 1 is an offence of Participating in a Criminal Organisation.  The remaining counts are offences relating to firearms and ammunition.  The criminal organisation in Count 1 is alleged to be the Comancheros.  On the prosecution case, the remaining offences were connected to the Comancheros and committed as an aspect of the membership of the defendants of that club. 

The prosecution seeks the admission of discreditable conduct evidence in the respective cases of each defendant.  That evidence includes, but is not limited to, evidence of their alleged membership of the Comancheros and their respective involvement in uncharged offences, including drug trafficking.  The evidence of discreditable conduct is sought to be admitted for a use which relies upon propensity (the alleged propensity use) and uses which do not (non-propensity uses).  In so far as the alleged propensity use is concerned, the prosecution submits that the evidence can establish the defendants have a propensity to engage in organised criminal activity, including drug trafficking, commercial drug manufacturing and firearms offending, in furtherance of the objects and purpose of a criminal organisation. 

The defendants submit the evidence sought to be admitted for non-propensity uses does not have a probative value which outweighs any prejudicial effect it may have.  The defendants submit that the evidence sought to be admitted for a propensity use does not establish the propensity alleged or, in the alternative, does not have strong probative value having regard to the issues arising at trial. 

The defendants also seek the exclusion of other specific identified evidence on the grounds that it is irrelevant or, if relevant, is more prejudicial than probative. 

The defendants further seek an order that Count 1 should be tried separately from the remaining counts. 

Held:

1.The discreditable conduct evidence sought to be admitted for non-propensity uses is admitted pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) (the Act).

2.The discreditable conduct evidence sought to be admitted for the alleged propensity use is admitted for that use pursuant to s 34P(2)(b) of the Act.

3.With respect to the defendants’ application for the exclusion of specific identified evidence, some evidence is admitted; some evidence is excluded; and some evidence…

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AGLC
R v TB (No 7) [2025] SASC 124
Case
[2025] SASC 124
Decision Date

CaseChat Overview and Summary

The case of R v TB (No 7) involved the defendants CD and TB who were charged with various offences related to organised criminal activity, including drug trafficking, commercial drug manufacture, and firearms offences. The dispute centred around the admissibility of evidence of the defendants' uncharged acts of discreditable conduct under Section 34P of the Evidence Act 1929 (SA). The court had to determine whether this evidence could be used to establish a propensity to engage in such criminal activities.

The primary legal issue was whether the evidence of the defendants' uncharged acts of discreditable conduct, which included their membership in the Comancheros motorcycle gang and their involvement in drug trafficking and firearms offences, could be admitted for a permissible use under Section 34P. The court had to consider whether the probative value of this evidence outweighed any prejudicial effect it might have on the defendants and whether the evidence had strong probative value concerning the particular issues in the trial.

The court reasoned that the evidence of the defendants' uncharged acts of discreditable conduct had strong probative value regarding the issues in the trial. It was relevant to show that the defendants had a propensity to engage in organised criminal activity, which made it more likely that they were involved in the specific offences charged. The court found that the evidence was proximate to the offences and thus was sufficiently relevant. The prejudicial effect of the evidence was considered but was found to be outweighed by its probative value. The court also noted that the use of such evidence for both propensity and non-propensity purposes could increase the risk of impermissible reasoning and prejudice. The court concluded that the evidence was admissible for the permissible use of establishing the defendants' propensity to engage in organised criminal activity.

The court's final orders included the admission of the evidence of the defendants' uncharged acts of discreditable conduct for the permissible use of establishing their propensity to engage in organised criminal activity. The court provided directions to ensure that the evidence was used appropriately and that the jury understood the limited purpose for which it was admitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 34P of the EA regulates the admission of discreditable conduct evidence. Section 34P provides:[10] [10] Evidence Act 1929 (SA) (EA), s 34P. (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. The approach to be adopted by a Judge in considering the admissibility of discreditable conduct evidence was discussed by Hinton J in R v Heinze (Heinze).[11] Section 34P has been amended since Heinze, but the approach of Hinton J remains instructive: [11] [2017] SASCFC 155.It should be observed that, unlike ss 97 and 98 of the Evidence Act 1995 (Cth), s 34P of the Evidence Act 1929 steers away from the use of labels to describe chains of reasoning reliant upon evidence of discreditable conduct. The focus is upon use. Descriptive labels mask analysis and risk error. The nature of the evidence with which s 34P is concerned has traditionally been treated with great care by the common law because of the prejudicial risk associated with its admission – the risk that the trier of fact will be persuaded to convict because the accused has offended in the past (the impermissible use). Section 34P approaches the risk of prejudice arising from the impermissible use by requiring that the prosecutor articulate clearly the use or uses for which he or she intends to deploy discreditable conduct evidence. That way a trial Judge can determine:i. whether the permissible use or uses proffered fall within s 34P(2)(a) only or ss 34P(2)(a) and (b); ii. the probative value the evidence attracts; iii. the risk of its impermissible use; iv. if the proffered use is one falling within s 34P(2)(a), whether the probative value of the evidence admitted for the permissible use or uses substantially outweighs any prejudicial effect it may have on the defendant. In arriving at this conclusion the Judge is to consider whether the permissible use or uses is/are, 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 (the impermissible use) purpose; v. if the proffered use is one falling within s 34P(2)(b), whether in addition to the probative value of the evidence substantially outweighing any prejudicial effect it may have, it has strong probative value having regard to the particular issue or issues arising in the trial;vi. whether despite the evidence being admissible, reason arises to exclude it nonetheless in the exercise of the residual discretion; vii. superintend the use of the evidence in the event of its admission in the light of the basis for its admission (i.e. for the articulated permissible use or uses); and viii. fashion the appropriate direction required by s 34R.[12](footnotes omitted)[12] Heinze, [71].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It has been observed that the use of evidence for both propensity and non-propensity purposes may increase the risk of impermissible rank bad person reasoning and other potential sources of prejudice. In Eddy (a pseudonym) v The King,[61] the Court of Appeal in this State referred with approval to the Victorian Court of Appeal having observed that it would be desirable that the prosecution only rely on the evidence for one purpose, in order to simplify the directions required to be given to the jury, and to simplify the task of the jury.[62][61] Eddy (a pseudonym) v The King [2024] SASCA 115, [133]-[137].[62] Dempsey (a pseudonym) v The Queen [2019] VSCA 224, [104].Consideration It is helpful to re-state the alleged propensity. It is that the defendants have ‘a propensity to engage in organised criminal activity, including drug trafficking, commercial drug manufacture and firearms offending, in furtherance of the objects and purpose of the Comancheros’. I find that, taking the evidence at its highest, the evidence can show that both defendants had the alleged propensity at the time of the alleged offences. First, there is evidence permitting the inferences that each defendant had been involved personally in activities involving drugs – and – that those activities were connected to the Comancheros. Second, the evidence can show that both defendants had joined a group (i.e. – the Comancheros) the key purpose of which was to engage in offences involving drugs. Put another way, the alleged propensity exists as the evidence can show that the membership of the Comancheros were in the business of dealing in illicit drugs; both defendants were members of the Comancheros; and both defendants had involved themselves in that business.[63] With respect to CD, the evidence goes further as it may be inferred that he had held leadership roles within the Comancheros and had also been involved in firearms with that conduct also being connected to the Comancheros. Permissible propensity uses – prejudicial effect [63] R v Soteriou [2013] SASCFC 114, [16]; Hammer v The Queen [2022] SASCA 75, [37]-[38]. As set out in s 34P of the EA, whether evidence of discreditable conduct should be admitted for a propensity use requires attention to whether the evidence has strong probative value having regard to the issues in the trial and any prejudicial effect the evidence may have on the defendant. In evaluating probative value, a consideration may be the proximity in time between the conduct the subject of the offence and the evidence of discreditable conduct.[64] In this case, the evidence of discreditable conduct is proximate to the offences.[64] TL v The King (2022) 275 CLR 83, [37]. I am satisfied the evidence relied upon to establish the propensity has strong probative value having regard to the issues arising at trial. In Count 1, it makes it more likely that the possession of the Holden utility by Mr Wakefield was at the direction of CD and TB; that its contents were an aspect of the organised criminal activity of the Comancheros; and that each defendant was a knowing participant in a criminal organisation. In Count 2-5 and 8-15, it makes it more likely that each defendant was in possession of the items the subject of those counts.