COLLINS, HARRIS & SIMPSON (PSEUDONYMS) v THE KING [2026] SASCA 46

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE BARKLAY) DCCRM-23-028054 First Appellant: COLLINS (A PSEUDONYM) Counsel: MR R WILLIAMS SC WITH MR M CHRISTEY - Solicitor: ADELAIDE CRIMINAL LAW Second Appellant: HARRIS (A PSEUDONYM) Counsel: MR A CULSHAW WITH MS J DANIEL - Solicitor: BTD LAWYERS Third Appellant: SIMPSON (A PSEUDONYM) Counsel: MR M MEAD - Solicitor: PATSOURIS & ASSOCIATES Respondent: THE KING Counsel: MS A CAIRNEY WITH MR S WHITTAKER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 30/01/2026 File No/s: SCCRM-25-011362; SCCRM-25-014010; SCCRM-25-046620; SCCRM-26-003683 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. COLLINS, HARRIS & SIMPSON (PSEUDONYMS) v THE KING [2026] SASCA 46 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Stanley and the Honourable Justice Kimber) 1 May 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - KIDNAPPING, CHILD ABDUCTION AND LIKE OFFENCES CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE Appeal against conviction and sentence. -- 1 of 66 -- Following a joint trial by jury, Ms Collins and Mr Harris were found guilty of one count of aggravated kidnapping and two counts of aggravated assault with intent to cause harm. Mr Simpson was found guilty of two counts of aggravated assault with intent to cause harm. The prosecution case was that Ms Collins and Mr Harris together detained Mr Kelly at Ms Collins’ premises for a period of four hours, during which they, along with Mr Simpson (who attended later), subjected Mr Kelly to various assaults. The prosecution relied upon various out of court statements made by Mr Kelly before his death which were admitted under s 34KA of the Evidence Act 1929 (SA). The appellants each appeal their convictions on the basis that the trial judge erred in failing to exercise his discretion under s 34KD(2) to exclude Mr Kelly’s out of court statements on the ground of unfairness, and allege that a miscarriage of justice was occasioned by reason of the trial judge refusing to order a permanent stay of proceedings. Mr Harris also appeals his convictions on the further basis that the trial judge erred in failing to make an order that the case against him be heard separately. Mr Harris also seeks permission to appeal his sentence on the basis that it lacked parity with the sentence imposed on Ms Collins. Held, by S Doyle JA (Stanley JA and Kimber AJA agreeing), dismissing the appellants’ joint grounds: 1. The challenges to the admission of Mr Kelly's out of court statements under s 34KA of the Evidence Act are not made out. There was no basis for their exclusion under s 34KD(2). 2. There was no error in the judge refusing the appellants’ application for a permanent stay of proceedings. Held, by S Doyle JA (Stanley JA and Kimber AJA agreeing), upholding Mr Harris’ separate conviction ground, and allowing his appeal: 1. Despite the public interest in the joint trial of defendants charged with the same or similar offending, this was a case in which Mr Harris ought to have been given a trial separate from his co-accused. 2. The receipt of the out of court statements of Ms Collins and Mr Simpson implicating Mr Harris in the offending, which were inadmissible against Mr Harris, and created a risk of prejudice to him that was unable to be ameliorated through directions to the jury. 3. A miscarriage of justice was occasioned by the judge’s refusal to order separate trials. Held, by S Doyle JA (Stanley JA and Kimber AJA agreeing), dismissing Mr Harris’ sentence appeal: 4. Having allowed Mr Harris’ conviction appeal, it is not necessary to address his appeal against sentence. Evidence Act 1929 (SA) ss 34KA(2)(a), (b), (c), (d), (e), 34KB, 34KC, 34KD(1), (2); Statutes Amendment (Serious and Organised Crime) Act 2012 (SA), referred to. Ali v The Queen (2005) 79 ALJR 662; Awad v The Queen (2022) 296 A Crim R 561; Bannah v The King [2025] SASCA 89; Bunning v Cross (1978) 141 CLR 54; Caleo v The Queen (2021) 290 A Crim R 352; Destanovic v The Queen (2015) 49 VR 276; Dupas v The Queen (2010) 241 CLR 237; GLJ v Trustees for the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; Jago v District Court (NSW) (1989) 168 CLR 23; Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84; McNamara v The King (2023) 280 CLR 201; Mullen v DPP (2020) 136 SASR 274; Nguyen v The Queen (2020) 269 CLR 299; Police v Dunstall (2015) 256 CLR 403; R v Alzuain & Ors [2025] SASC 67; R v B, GN (2014) 121 SASR 43; R v Bunting (No 3) [2003] SASC 251; R v Christie [1914] AC 545; R v Collie (1991) 56 SASR 302; R v Demirok [1976] VR 244; R v Ditroia [1981] VR 247; R v Doyle [1988] 2 Qd R 434; R v Gibbins and Proctor (1918) 13 Cr App R 134; R v Glencross (2000) 206 LSJS 158; R v Glennon (1992) 173 CLR 592; R v Glover (1987) 46 SASR 310; R v Grondkowski [1946] KB 369; R v Haines [2016] SASC 96; R v Harbach (1973) 6 SASR 427; R v -- 2 of 66 -- Henry [2008] NSWCCA 248; R v Iaria [2004] VSC 110; R v Jacobi (2012) 114 SASR 227; R v Jell; ex parte Attorney-General [1991] 1 Qd R 48; R v Jones (1991) 55 A Crim R 159; R v Kerekes (1951) 70 WN (NSW) 102; R v Lobban (2001) 80 SASR 550; R v Mitchell (No 2) [2020] SASC 148; R v MJJ; R v CJN (2013) 117 SASR 81; R v Pham [2004] NSWCCA 190; R v Sahlstorfer [2024] SASC 55; R v Swan [2013] QCA 217; R v Swingler [1996] 1 VR 257; R v Webb (1992) 59 SASR 563; Riat v The Queen [2012] EWCA Crim 1509; Rogers v The Queen (1994) 181 CLR 251; Strickland v DPP (2018) 266 CLR 325; Talbot v The Queen [2019] SASCFC 112; Walton v Gardiner (1993) 177 CLR 378; Webb v The Queen (1994) 181 CLR 41; Williams v Spautz (1992) 174 CLR 509, considered. -- 3 of 66 -- COLLINS, HARRIS & SIMPSON (PSEUDONYMS) v THE KING [2026] SASCA 46 Court of Appeal – Criminal: S Doyle and Stanley JJA and Kimber AJA 1 S DOYLE JA: Following a trial by jury, all three appellants (Ms Collins, Mr Harris and Mr Simpson) were found guilty of offences relating to the kidnapping and assault of Mr Kelly on 5 February 2019.1 It was alleged that Mr Kelly was detained for a period of about four hours at Ms Collins’ home, and subjected to various assaults. 2 Mr Harris and Ms Collins were each found guilty of one count of aggravated kidnapping (Count 1) and two counts of aggravated causing harm with intent to cause harm (Counts 4 and 6).2 Mr Simpson was found guilty of two counts of aggravated causing harm with intent to cause harm (Counts 6 and 8).3 3 The prosecution case relied upon various out of court statements made by the victim, Mr Kelly, who was deceased by the time of the trial. His statements were admitted pursuant to s 34KA of the Evidence Act 1929 (SA). 4 Each of the appellants appeals their convictions on the bases that: • the judge erred in declining to exercise his discretion, under s 34KD, to exclude Mr Kelly’s statements on the ground of unfairness; and • the judge’s refusal to order a permanent stay of proceedings occasioned a miscarriage of justice. • Mr Harris also appeals his convictions on the further bases that the judge erred in declining to order that the case against him proceed by way of separate trial; or, in the alternative, that the judge erred or occasioned a miscarriage of justice by not ensuring the redaction of certain prejudicial material from the transcript of some out of court statements made by Mr Simpson during his police interview (which were admitted as against Mr Simpson). 5 Mr Harris was sentenced to six years’ imprisonment, with a non-parole period of four years. Both his head sentence and non-parole period were reduced by 18 months to take account of the time he had spent in custody and on home detention bail, resulting in a head sentence of four years and six months imprisonment, with a non-parole period of two years and six months. Mr Harris seeks permission to appeal against this sentence on the basis that it lacked parity with the sentence imposed upon his co-offender, Ms Collins. 1 Pseudonyms have been adopted for each of the appellants and the complainant. 2 They were found not guilty of Counts 2, 3, 5, 7 and 8. 3 He was found not guilty of Counts 5 and 7. -- 4 of 66 -- [2026] SASCA 46 S Doyle JA 2 6 For the reasons which follow, I would reject the appellants’ complaints about the judge’s admission of Mr Kelly’s out of court statements and his refusal to order a stay of proceedings. However, I would allow Mr Harris’ appeal from the judge’s refusal of his application for a separate trial. It follows that I would dismiss Ms Collins’ and Mr Simpson’s appeals but allow Mr Harris’ appeal against conviction. In the circumstances, it is unnecessary to address Mr Harris’ appeal against sentence. 7 My reasons are structured as follows: Background .................................................................................................................................... 2 Statements made by Mr Kelly........................................................................................................ 3 Subsequent events .......................................................................................................................... 5 The trial and prosecution case........................................................................................................ 7 The issues on the conviction appeal ............................................................................................. 10 The judge’s voir dire reasons ....................................................................................................... 11 Reasons on the admissibility of Mr Kelly’s out of court statements ........................................ 11 Reasons on the application for a stay of proceedings ............................................................. 14 The admissibility of out of court statements under s 34KA of the Evidence Act ........................ 16 The admissibility of Mr Kelly’s out of court statements ............................................................. 23 The principles governing a permanent stay of proceedings ......................................................... 29 A stay of proceedings in the present case .................................................................................... 33 The separate trial application ....................................................................................................... 35 The evidence which was inadmissible against Mr Harris ............................................................ 36 The out of court statements of Ms Collins................................................................................ 36 The out of court statements of Mr Simpson.............................................................................. 37 The trial judge’s reasons for refusing to order a separate trial..................................................... 39 The trial judge’s directions .......................................................................................................... 40 The principles governing separate trials ...................................................................................... 40 Application to Mr Harris .............................................................................................................. 50 The sentence appeal ..................................................................................................................... 57 Conclusion ................................................................................................................................... 57 The three types of prejudice ......................................................................................................... 58 The verdicts .................................................................................................................................. 61 Conclusion ................................................................................................................................... 63 Background 8 By way of high level overview of the prosecution case against the appellants, it was alleged that Mr Kelly arrived at Ms Collins’ house during the night of 5 February 2019, at about 8.30 pm. Both Ms Collins and Mr Harris were present and, while they were sitting at the kitchen table, produced flick knives and blow torches. From that time, Mr Kelly was, on the prosecution case, unlawfully detained (Count 1: aggravated kidnapping). It was alleged that Mr Harris struck Mr Kelly to the back of the head with a tomahawk (Count 2: aggravated assault causing harm), and then, using a blow torch, burnt the back of his hands and the hair on his head and back (Count 3: aggravated causing harm with intent). Mr Kelly was then moved to a bathtub, where Mr Harris and Ms Collins poured liquid on him, and Mr Harris burnt him with a blow torch (Count 4: aggravated -- 5 of 66 -- [2026] SASCA 46 S Doyle JA 3 cause harm with intent). After a while Mr Kelly was moved to the shower, where he was further beaten by Mr Harris. 9 Only Mr Harris and Ms Collins were charged with Counts 1 to 4. However, on the prosecution case, Mr Simpson then arrived at the house and joined in the commission of Counts 5 to 8. Mr Martin4 also arrived at the house at some point, but it was not clear whether, and to what extent, he became involved in the assaults that followed. Charges were laid against Mr Martin but, for reasons explained later, they did not ultimately proceed to trial. 10 As to Mr Simpson’s involvement, it was alleged that he struck Mr Kelly with a baseball bat, including to the backs of his hands (Count 5: aggravated causing harm with intent). Whilst in the laundry, Mr Kelly was further hit and kicked by Mr Simpson (as well as Mr Harris, Ms Collins and perhaps also Mr Martin). Mr Simpson sprayed a fluid on Mr Kelly’s hip and burnt him with a blow torch (Count 6: aggravated causing harm with intent). Each of the three appellants then punched and kicked Mr Kelly while he sat on a chair (Count 7: aggravated assault causing harm). Finally, it was alleged that Mr Simpson cut Mr Kelly’s ankle with a scalpel (Count 8: aggravated causing harm with intent). 11 Mr Kelly was eventually allowed to leave, and was driven home by Mr Simpson at about 12.30 am. The overall period of the offending was about four hours. 12 Upon his return home, just after 1.00 am, Mr Kelly telephoned triple-zero to arrange an ambulance, and police were notified. Police attended by 1.30 am, and accompanied Mr Kelly to the Royal Adelaide Hospital. Statements made by Mr Kelly 13 The prosecution case included various out of court statements made by Mr Kelly both immediately following the offending, and over the subsequent days. In particular, the prosecution relied upon (i) statements made by Mr Kelly over the telephone to the triple-zero emergency operator in the early hours of 6 February 2019 when seeking the assistance of an ambulance, (ii) statements captured on the body-worn camera of Brevet Sergeant Buttfield on 6 February 2019, (iii) statements made to, or in the presence of, BS Buttfield but not recorded on his body-worn camera, (iv) an affidavit affirmed by Mr Kelly on 6 February 2019 (‘the first affidavit’), and (v) an affidavit affirmed by Mr Kelly on 11 February 2019 (‘the second affidavit’). 14 By way of summary, the statement made by Mr Kelly during his call to the triple-zero emergency operator in the early hours of 6 February included statements by him to the effect: that he had been subjected to a physical assault that had occurred over the course of four hours that night; that he had suffered injuries including broken ribs, a punctured lung, a broken wrist, arm and hand, a 4 A pseudonym. -- 6 of 66 -- [2026] SASCA 46 S Doyle JA 4 laceration to his ankle and burns to his back; and that the weapons used during the assault included a scalpel and blow torch. 15 Later in the morning of 6 February, police attended and Mr Kelly was taken to the Royal Adelaide Hospital by ambulance. The statements captured on BS Buttfield’s body-worn camera when he attended Mr Kelly’s house included statements made by Mr Kelly: as to the nature of the attack upon him, including some specifics as to particular aspects of the violence inflicted upon him; as to the weapons used (including reference to blow torches, a tomahawk, two baseball bat type weapons and a scalpel); as to the injuries he suffered; as to the timing and location (including the rooms within Ms Collins’ home) of the offending; as to the number and identity of the perpetrators involved (Ms Collins, Mr Harris, Mr Simpson and Mr Martin); as to what each of them was wearing; and as to the apparent motive for the attack (referring to having a ‘50 grand stamp’ on him, and being told he had until 9 o’clock Wednesday night to find the money). The statements also included reference by Mr Kelly to being driven home by Mr Simpson in a Hyundai SUV after the assault. 16 Mr Kelly made further statements to, or in the presence of BS Buttfield, on 6 February which were not recorded on the body-worn camera. They were made while Mr Kelly was in an ambulance outside the Royal Adelaide Hospital, and during his subsequent assessment by medical staff. They included statements in which Mr Kelly: identified the defendants (as Mr Harris, Mr Simpson and Mr Martin); gave the location of the attack as the home address of Ms Collins; described the attack as occurring over a four hour period and as relating to a large financial debt; and gave further details of the attack and weapons used, including reference to a metal baseball bat, a scalpel, being doused in petrol, being burnt with a blow torch, and being struck to the head with the flat side of a tomahawk. 17 Later on 6 February, Mr Kelly affirmed his first affidavit. Detective Brevet Sergeant Sutherland gave evidence during the voir dire that the affidavit was taken while Mr Kelly was at the Royal Adelaide Hospital, at about 12.20 pm. He described Mr Kelly as groggy, in pain and sleepy, but nevertheless coherent. He was satisfied that Mr Kelly understood where he was and the purpose for which the statement was being taken. He did not perceive any confusion or doubt on the part of Mr Kelly. After typing the affidavit for Mr Kelly, DBS Sutherland read it out to him ‘verbatim’ and ‘invited him to point out any inconsistencies, errors or omissions’ for correction. He ended up reading the affidavit out twice. Mr Kelly then affirmed and signed the first affidavit. 18 The first affidavit included statements by Mr Kelly: confirming that he knew each of the attackers, and describing his relationship with them; describing the circumstances which led to his attendance at Ms Collins’ home on the day of the attack; and describing the sequence of events following his arrival at Ms Collins’ home (including who was present when he arrived, when others arrived, things said to him or in his presence, details of the various aspects of the attack upon him -- 7 of 66 -- [2026] SASCA 46 S Doyle JA 5 including the weapons used, and the locations within the house where the attack occurred). Mr Kelly also described what each of the attackers was wearing, and the injuries he sustained. 19 Mr Kelly affirmed his second affidavit in the presence of Detective Brevet Sergeant Rawe on 11 February, but it was based upon a combination of notes taken by DBS Sutherland when he spoke with Mr Kelly on 8 and 9 February, and statements made to DBS Rawe on 11 February at the Christies Beach police station. During the voir dire, DBS Sutherland said that he visited Mr Kelly on 8 and 9 February to obtain further detail that had not been included in his first affidavit. He said that the Mr Kelly was still in pain from the attack, but was rested, confident and talkative. DBS Rawe said that Mr Kelly then attended the police station on 11 February and appeared lucid. Although nervous, ‘he was pretty good’. DBS Rawe typed the affidavit on a computer while Mr Kelly was with him. Upon completion, Mr Kelly read the affidavit and confirmed its accuracy. 20 The second affidavit included further detail from Mr Kelly as to the events which led to his attendance at Ms Collins’ house, and by way of clarification of the timing of the arrival of others at Ms Collins’ house. He also included further detail of the assault and the weapons used, as well as the route Mr Simpson took when driving Mr Kelly home to his Glenside address. Subsequent events 21 In mid-February 2019, police assisted Mr Kelly to relocate to Queensland.5 22 By the end of March 2019, each of Ms Collins, Mr Harris, Mr Simpson and Mr Martin had been arrested and charged in relation to the offending against Mr Kelly. 23 However, in August 2019, DBS Sutherland received a telephone call from Mr Kelly, who requested that the charges be withdrawn. DBS Sutherland gave evidence on the voir dire in which he explained that Mr Kelly rang, asking to speak with Detective Brevet Sergeant Hodgkinson (who had been involved in the investigation), but she was not available. Mr Kelly then indicated that he wanted to have all the charges dropped. He said that Mr Kelly gave reasons for this, including that he had been motivated by seeking victims of crime compensation, and that he had ‘made it all up’. Mr Kelly also said something to the effect that ‘that’s what you get for sleeping with someone else’s partner’. DBS Sutherland told Mr Kelly that he would need to meet with the investigating officer to discuss the matter. 24 DBS Hodgkinson said in her evidence on the voir dire that she spoke with Mr Kelly by telephone in early September 2019. He told her that he had resumed living in Adelaide, and that he did not want to proceed with the charges. Her 5 This detail, together with what follows, is taken from the evidence given at the voir dire, as well as an agreed chronology of events tendered at the voir dire. -- 8 of 66 -- [2026] SASCA 46 S Doyle JA 6 recollection was that he was vague as to the reason for this, saying something to the effect that he wanted to spend time focusing on his family and did not want to go through court proceedings. He did not say, or otherwise give any indication, that his earlier statements were not true. 25 DBS Sutherland and DBS Hodgkinson subsequently met with Mr Kelly on 5 September 2019, at which time he confirmed his desire that the charges be withdrawn, and signed the paperwork required for that purpose (referred to as a PD207A, or ‘no police action’ form). 26 Both officers gave evidence on the voir dire about their interactions with Mr Kelly on this occasion. 27 According to DBS Sutherland, Mr Kelly seemed quiet and subdued. When asked why he wanted to withdraw the charges, Mr Kelly gave different reasons (without repeating the earlier ones), saying that he had had a recent cancer diagnosis, and that he wanted to focus on his family life. He denied that he had any concerns about his safety or well-being, or that this had played any part in his decision to request that the charges be withdrawn. 28 DBS Hodgkinson said that when Mr Kelly attended the police station on 5 September, he was not as talkative as usual. She recalled that Mr Kelly said that he had been diagnosed with a serious brain cancer, and that he wished to focus on his family. She could not recall his precise words, but he indicated that he was not willing to proceed with the court process, or to go to court. She explained to him the process associated with a PD207A form, including that there would need to be a prosecution assessment whether to discontinue the charges. When pressed as to whether there were any other reasons for not wanting to continue with the charges, Mr Kelly denied that there were any, or that he had been subjected to any pressure or threats. Despite being offered support and protection were he to continue with the charges, Mr Kelly was determined to sign the PD207A form. The form he signed included the following handwritten statement of his reason for requesting that the police take no further action: Due to health issues and focusing more so on my son and I don’t wish to go to court as the time could be spent with my family. 29 Later in September 2019, a decision was made by the prosecuting authority (the Major Indictable Brief Unit of SA Police) not to proceed with the charges. It appears that the investigating officers were consulted and agreed with this decision on the basis that it would be difficult to proceed without Mr Kelly’s cooperation. This was despite their concerns about Mr Kelly’s reasons for not wanting to proceed. They did not take any steps to investigate or address those concerns. 30 On 3 October 2019, the charges against the accused were withdrawn in the Magistrates Court. 31 On 4 January 2020, Mr Kelly was found deceased. -- 9 of 66 -- [2026] SASCA 46 S Doyle JA 7 32 In early 2021, Taskforce Southern was established by the Major Crime Investigation Branch (‘MCIB’) of SA Police to investigate several suspected murders in the southern suburbs of Adelaide. The death of Mr Kelly was one of the suspected murders. 33 In late February 2021, MCIB also commenced a review of the previous investigation of Mr Kelly’s allegations. Steps taken in this further investigation included telephone intercepts for the mobile phone services subscribed to Ms Collins, Mr Martin and Mr Simpson, listening devices installed in their homes, searches of their phones and homes, a review of prison calls made by each of these people (as well as Mr Harris) while in custody in 2019, and statements obtained from civilian witnesses who had not given statements in the original investigation. 34 These investigations produced fresh, and in some cases compelling, evidence. This included inculpatory statements by, and admissible against, Ms Collins and Mr Simpson. The nature and content of these statements are addressed later in these reasons. 35 So far as Mr Harris was concerned, MCIB obtained a statement from a Ms Crammond on 9 July 2021. Ms Crammond said that Mr Harris had shown her two videos of a man (who Mr Harris told her was Mr Kelly). The first showed the man lying on the floor, apparently unconscious with blood around his head. Mr Harris could be heard laughing in the background. The second showed a clothed man in a bath, with blood on his face and apparently unconscious. It included a glimpse of someone’s hand lighting a blow torch, and moving it towards the man’s leg. According to Ms Crammond, Mr Harris said he was the one filming, and that he had been involved. (As explained later, no evidence was ultimately led from Ms Crammond at the trial.) 36 During January and February 2023, Ms Collins, Mr Harris, Mr Simpson and Ms Martin were re-arrested for the offending alleged by Mr Kelly. The trial and prosecution case 37 At trial, the prosecution sought to tender Mr Kelly’s out of court statements under s 34KA of the Evidence Act. Each of the accused sought the exclusion of those statements under s 34KD(2) of the Evidence Act. In the alternative, they sought a permanent stay of the proceedings. 38 For reasons explained later, the judge excluded aspects of this evidence as against Mr Martin, but declined to exclude it as against the appellants (Ms Collins, Mr Harris and Mr Simpson). The judge declined to order a stay, although charges against Mr Martin were subsequently abandoned by the prosecution. 39 Mr Harris also sought an order that he have a separate trial on the basis that significant aspects of the evidence admissible against Ms Collins and Mr Simpson (in particular, the out of court statements they had made) was not admissible in the -- 10 of 66 -- [2026] SASCA 46 S Doyle JA 8 case against him, and was prejudicial to him. The judge also declined this application. 40 The trial proceeded against the three defendants: Ms Collins, Mr Harris and Mr Simpson. In addition to the out of court statements by Mr Kelly, the prosecution relied upon a body of circumstantial evidence which placed the defendants at Ms Collins’ house at the time of the offending, as well as evidence of items or weapons located at Ms Collins’ house, and injuries to Mr Kelly consistent with various aspects of Mr Kelly’s description of the offending. The prosecution case also relied upon additional evidence obtained during the course of the later investigation of the offending, including various out of court statements by Ms Collins and Mr Simpson (which were only admissible against the maker of the relevant statement). 41 As to the injuries sustained by Mr Kelly, there was evidence of lay observations about the injuries he suffered. The prosecution also led evidence from Dr Wylie as to the existence (or in some cases, absence) of injuries consistent with Mr Kelly’s allegations, as ascertained by Dr Wylie during her 6 February 2019 examination of Mr Kelly. As to Count 2,6 Dr Wylie said there were no observable signs of bruising or cuts to the back of Mr Kelly’s head, although a CT scan showed some soft tissue swelling. As to Count 3 (and relevant to Counts 4 and 6),7 Dr Wylie noticed only one burn as at the time of her examination, being a superficial burn to the back of Mr Kelly’s right hand. As to Count 4, there was redness under Mr Kelly’s arm, with a burn being a possible cause. As to Count 6, there was redness and a loss of skin on Mr Kelly’s hip, with a burn again being a possible cause. As to Count 5,8 there was no clinical finding to suggest a fracture to Mr Kelly’s hands, and so his hands (and wrists) were not x-rayed. As to Count 8,9 Mr Kelly had a linear wound to his right ankle. 42 The prosecution case included closed circuit television (‘CCTV’) footage from locations surrounding Ms Collins’ address which captured Mr Kelly’s arrival at the premises on the night of the offending, at just before 8.30 pm, and Mr Harris’ arrival a few minutes later. It also included telephone tower evidence which showed Mr Kelly’s and the defendants’ phones connected to a nearby tower during the period of the alleged offending. Indeed, it was not in dispute that Mr Kelly and the defendants were all present at Ms Collins’ address during the relevant period. There was also CCTV footage of Ms Collins apparently cleaning the premises at around 3.00 am the following morning. 43 Within Ms Collins’ premises, police located weapons and other items consistent with Mr Kelly’s description of the offending, including a switch blade, a tomahawk, gas torch attachments and cannisters, a black spray bottle, a black 6 The aggravated assault causing harm using a tomahawk. 7 The offences involving the use of a blow torch. 8 The aggravated assault causing harm using a baseball bat. 9 The aggravated assault causing harm using a scalpel. -- 11 of 66 -- [2026] SASCA 46 S Doyle JA 9 and red lighter and a fuel can. A broken towel rack,10 and cleaning products were located in the bathroom. There was a distinct smell of bleach towards the rear of the premises, including in the laundry. 44 So far as the case against Ms Collins was concerned, there were two categories of out of court statements received in evidence against her only; statements she made during telephone calls while she was in prison, and statements she made in other telephone intercepts. 45 Various of these statements were not only inculpatory of Ms Collins, but also consistent with aspects of Mr Kelly’s version of events. For example, during one of the prison calls, she told her mother that she had lent Mr Kelly $1,000 because he was going to get his head kicked in, and that he had come to her needing assistance. She also said that she had told Mr Kelly that he had broken her heart. Further, during the intercepted conversations, Ms Collins referred to having said ‘are you not bashing him properly or is he not learning’, with the context suggesting that ‘you’ was Mr Harris and ‘him’ was Mr Kelly. She also confirmed the truth of a news article that Mr Kelly had agreed to pay $50,000, and said that one of the offenders had bandaged up his feet and driven him to another address. She made a further reference to Mr Kelly not being bashed properly. 46 So far as the case against Mr Simpson was concerned, his out of court statements included statements made during two police interviews, some prison calls, some statements recorded with a listening device, as well as some text messages and Facebook messages. 47 Again, various of these were not only inculpatory of Mr Simpson, but also consistent with aspects of Mr Kelly’s version of events. For example, during his police interviews, Mr Simpson said that Mr Kelly was in bad shape when he arrived, that he looked like he had been doused in petrol, that there were gas torches in the kitchen, that one of Mr Kelly’s hands was purple, that he returned Mr Kelly’s phone to him after Ms Collins threw it on the ground, that the motive for the assaults related to money and mobile phones, and that he drove Mr Kelly home. In his prison calls, Mr Simpson denied having detained Mr Kelly, saying that Mr Kelly had already been detained by the time Mr Simpson arrived, that Mr Kelly was in the shower when he arrived, and that he drove Mr Kelly home. In his conversations recorded by a listening device, Mr Simpson made reference to using a blow torch, to cutting Mr Kelly’s foot or Achilles tendon using a scalpel, and to torturing Mr Kelly more generally. He also referred in a text message to cutting an Achilles tendon; in a Facebook message to cutting Mr Kelly’s Achilles tendon, breaking his hands and applying a blow torch to him; and in another Facebook message to doing everything to Mr Kelly, with the other two (implicitly Ms Collins and Mr Harris) standing there like a couple of ‘Bedford workers’. 10 Consistent with a reference by Mr Kelly in his first affidavit to being pushed into a towel rack, causing the anchor points to be ripped out of the wall. -- 12 of 66 -- [2026] SASCA 46 S Doyle JA 10 48 Relevantly to the present appeal, Mr Simpson’s interviews by the police also included reference to Mr Harris having acted violently on another occasion or occasions. In particular, he made reference to Mr Harris (whom he referred to by a nickname) having shot someone’s leg off. It will be necessary to return to the prejudicial statements made by Mr Simpson about Mr Harris when addressing the challenge to the judge’s refusal to order that Mr Harris have a separate trial. 49 At the close of the prosecution case, the trial judge ruled that there was no case to answer on Count 7. He later directed an acquittal on this count. 50 Also at the close of the prosecution case, Mr Harris renewed his application for a separate trial, although couched at this point as an application for a mistrial. The basis for the application was that the evidence actually adduced at trial differed in some respects from the evidence which had been anticipated at the time of the pre-trial ruling. Mr Harris’ counsel referred in this respect to the absence of any evidence from Ms Crammond, as well as the inclusion of a second reference in the out of court statements of Mr Simpson to Mr Harris having ‘shot someone’s leg off’.11 The application was refused.12 51 There was no defence case for any of the three defendants. 52 The jury returned the following verdicts: Count Charge Weapon Collins Harris Simpson 1 Agg kidnapping Guilty Guilty 2 Agg assault cause harm Tomahawk Not guilty Not guilty 3 Agg cause harm with intent Blow torch Not guilty Not guilty 4 Agg cause harm with intent Blow torch Guilty Guilty 5 Agg cause harm with intent Bat Not guilty Not guilty Not guilty 6 Agg cause harm with intent Blow torch Guilty Guilty Guilty 7 Agg assault cause harm Punch/kick No case No case No case 8 Agg cause harm with intent Scalpel Not guilty Not guilty Guilty The issues on the conviction appeal 53 The grounds advanced by the appellants in their appeals against conviction have been summarised earlier in these reasons. The two grounds advanced by all 11 T660. 12 T663. -- 13 of 66 -- [2026] SASCA 46 S Doyle JA 11 appellants challenge the admissibility of Mr Kelly’s out of court statements, and whether there ought to have been a permanent stay of proceedings. The appeal brought by Mr Harris also challenges the trial judge’s refusal of his application for a separate trial. 54 In addressing the two grounds common to each of the appeals, the appellants each made similar submissions, or adopted the submissions of the other. As such, there is no need to distinguish between the appellants in addressing these issues. 55 The parties accept that the issues raised by both of these grounds of appeal fall to be determined by reference to the standard of correctness. Whilst it will be relevant to have regard to the trial judge’s reasons for the rulings he made, and in particular the (unchallenged) findings of fact that he made, it will ultimately be necessary for this Court to reach its own conclusions on the issues raised. 56 With this in mind, it is convenient to commence my analysis of the issues arising on appeal by summarising the judge’s reasons on the voir dire for declining to exclude Mr Kelly’s out of court statements, and for refusing a stay. The judge’s voir dire reasons 57 At the conclusion of the voir dire, the trial judge ruled that Mr Kelly’s statements were admissible under s 34KA. Whilst his Honour excluded parts of those statements under s 34KD(2) on the ground of unfairness as against Mr Martin, his Honour declined to exclude them in the case against the appellants (Ms Collins, Mr Harris and Mr Simpson). The judge also declined to order a permanent stay of the proceedings against the appellants. 58 The judge delivered relatively detailed reasons for these decisions. Reasons on the admissibility of Mr Kelly’s out of court statements 59 The judge commenced by summarising the prosecution case, the circumstances and content of Mr Kelly’s various out of court statements, the circumstances in which Mr Kelly expressed a desire that the charges be withdrawn, and the circumstances in which the charges were withdrawn and then re-laid after Mr Kelly’s death and some further investigation work. His Honour did so in terms consistent with the summary of these matters earlier in these reasons. 60 The judge then made some findings and observations about the reliability of Mr Kelly’s out of court statements. 61 In relation to the statements made during the triple-zero call and in the body- worn camera footage, the judge noted that they were made shortly after the relevant events, and in circumstances where it was unlikely they were a fabrication. The statements were recorded, and there was little ambiguity about what was said. The judge accepted that there was evidence that Mr Kelly was a drug user and that he might have been under the influence of drugs (including the Valium and pain -- 14 of 66 -- [2026] SASCA 46 S Doyle JA 12 medication he had taken). On the other hand, Mr Kelly could be heard in the triple- zero phone call and observed in the body-worn camera footage, and his level of awareness could be assessed. His account could also be considered in the context of the other evidence in relation to the matters about which he spoke. 62 Turning to the first affidavit, the judge noted that this was taken while Mr Kelly was in hospital, and that there was no criticism of the way in which it had been taken. The judge was satisfied that it accurately recorded what Mr Kelly said. 63 As for the second affidavit, there was some ambiguity about who prepared the typed notes on which it was based. However, the judge was satisfied that Mr Kelly was given the opportunity to clarify what had been prepared, and had added some detail when asked. The judge accepted the evidence of DBS Rawe that he accurately recorded what Mr Kelly told him, that Mr Kelly was given an opportunity to read over the affidavit, and that Mr Kelly had confirmed it was accurate. The judge noted that the language used in this affidavit was consistent with the language in Mr Kelly’s earlier statements. Whilst acknowledging that DBS Rawe had not correctly administered the oath, the judge did not consider there was any merit in the submission that this involved a significant failure to ensure that Mr Kelly understood the solemnity of the process and occasion. The judge was satisfied that the process adopted would have brought home to Mr Kelly the seriousness of what was occurring and the need for accuracy. The judge did not accept that this was a case like R v Haines13 (discussed later) where the witness might simply have agreed with the draft that was prepared for him because he was tired, unwell or wanted to finish the process. In this case, Mr Kelly had voluntarily attended the police station, and the concerns in R v Haines did not arise. Finally, the judge added that, to the extent that it might be suggested that Mr Kelly was influenced by a desire to ensure police help in his relocation to Queensland, this was a matter that could be the subject of submission even without cross- examination. The judge was satisfied that the second affidavit recorded the words used by Mr Kelly to describe the events that had occurred. 64 Against this background, the judge turned to address the potential exclusion of Mr Kelly’s statements in the case against Mr Martin. Mr Martin’s counsel argued that the position as against his client was different from that of the other defendants. There was no evidence, separate from Mr Kelly’s statements, that supported his involvement in the alleged offending; that is, apart from evidence establishing that he was present. So far as Mr Kelly’s statements were concerned, Mr Martin was only implicated in two paragraphs of the second affidavit (in which Mr Kelly said that he ‘now remembered’ that Mr Martin had assaulted him by punching him three or four times while he was in the bath, and subsequently). And this was in circumstances where Mr Kelly had said in his first affidavit that 13 R v Haines [2016] SASC 96. -- 15 of 66 -- [2026] SASCA 46 S Doyle JA 13 Mr Martin ‘didn’t get involved’, and had not otherwise (at least, not clearly) implicated Mr Martin in the offending. 65 The judge considered that, in these circumstances, he was not able to be satisfied that Mr Martin would receive a fair trial in the absence of an ability to cross-examine Mr Kelly. In particular, as there was no apparent explanation for the marked disparity as to Mr Martin’s involvement between the two signed statements, made only a few days apart, the inability to test the reliability of Mr Kelly’s statements implicating Mr Martin through cross-examination would result in an unacceptable forensic unfairness to Mr Martin. The judge excluded the statements relating to Mr Martin from the two impugned paragraphs in Mr Kelly’s second affidavit. 66 As mentioned earlier, the prosecution subsequently decided not to pursue the charges against Mr Martin. 67 The judge concluded that the appellants (Ms Collins, Mr Harris and Mr Simpson) were in a different position. His Honour commenced his consideration of their position with the general observations that Mr Kelly’s statements were consistent as to their participation in the alleged offending, and had a high probative value; and that Mr Kelly’s later reference to having ‘made up’ the allegations could be satisfactorily weighed by the jury in the absence of cross-examination. 68 The judge noted the appellants’ reliance upon their inability to cross-examine Mr Kelly about matters such as: his later statement that he ‘made up’ the allegations; his reasons for not wanting to pursue the charges; the differences between the first and second affidavits as to how Mr Kelly travelled to Ms Collins’ house, and as to the number of blow torches and flick knives that were used; Mr Kelly’s drug use on the day and more generally, and the potential for this to have affected his perception and reliability; and Mr Kelly’s possible motivation to fabricate the allegations to secure free accommodation and a flight to Queensland. The judge did not consider that the inability to cross-examine on these topics would substantially affect the ability of the jury to rationally assess the weight to be attached to Mr Kelly’s statements, or otherwise render the trial of the appellants unfair. They were matters that could be raised on the evidence, and could be the subject of submissions and directions to the jury. 69 The judge considered that, despite Mr Kelly’s later statement that he ‘made up’ the allegations, the situation was readily distinguishable from R v Haines. There was a considerable body of independent evidence that could assist the jury in assessing Mr Kelly’s statements, including the credibility of his statement that he made the allegations up. Whilst it was clear that the witness in R v Haines would have given evidence in terms of her subsequent statement, it was speculative to think that Mr Kelly would have adhered to his suggestion that he ‘made up’ the allegations. Although the other evidence against each defendant differed, there was a substantial body of evidence admissible against each which would provide -- 16 of 66 -- [2026] SASCA 46 S Doyle JA 14 assistance in assessing and testing Mr Kelly’s statements.14 There would not be an unsatisfactory ‘trial on the papers’ between two directly competing accounts in the sense contemplated in R v Haines. 70 For these reasons, the judge declined to exclude Mr Kelly’s out of court statements as against Ms, Mr Harris and Mr Simpson. Reasons on the application for a stay of proceedings 71 Turning to the application for a permanent stay of proceedings, the judge commenced by observing that the grounds advanced in support of a stay focussed upon the prosecution decision to reinstitute the proceedings against the defendants after Mr Kelly’s death, and to pursue a trial in which the prosecution relied upon Mr Kelly’s out of court statements. 72 In order to put the appellants’ submissions in context, the judge outlined the events that occurred following Mr Kelly’s indication that he wanted the charges to be withdrawn, including the death of Mr Kelly, the further investigation and evidence, and the decision to reinstitute the prosecution. 73 The judge then addressed the principles governing a stay of proceedings. His Honour explained that because it involved the court declining to exercise its jurisdiction to hear a matter, it was ‘an extraordinary step which will rarely be justified’.15 At the same time, where there is a defect in the process which is so profound as to offend the integrity and functions of the court, it may be necessary to stay the proceedings in order to prevent the administration of justice falling into disrepute.16 A stay may also be necessary to avoid an abuse of process, or to avoid unfairness or oppression of a type or nature which would bring the administration of justice into disrepute. 74 The judge referred to the appellants’ submission to the effect that the prosecution should be stayed in circumstances where: the prosecution had discontinued the charges while Mr Kelly was alive; Mr Kelly had indicated he did not wish to proceed with the charges and had disavowed the version of events in his statements; and, if the prosecution were to proceed as proposed, it would involve reliance upon statements containing the version which Mr Kelly had disavowed and which he was unlikely to have given in court if he had been alive and given evidence. The appellants argued that to permit the proceedings to continue would be to permit the prosecution to gain an unfair tactical advantage by reason of a witness being unavailable. They argued that the prosecution should be held to its 2019 decision not to prosecute; and that by deciding not to proceed 14 Noting that it was assumed at this stage that Ms Crammond would give evidence of the out of court statements made to her by Mr Harris. 15 Strickland v DPP (2018) 266 CLR 325 at [100] (Kiefel CJ, Bell and Nettle JJ). 16 Strickland v DPP (2018) 266 CLR 325 at [106] (Kiefel CJ, Bell and Nettle JJ). -- 17 of 66 -- [2026] SASCA 46 S Doyle JA 15 in 2019, and then re-instigating the charges after Mr Kelly’s death, the prosecution had caused the situation where the defendants could not cross-examine Mr Kelly. 75 In addressing these submissions, the judge began by observing that he did not accept the full force of the submission to the effect that, had Mr Kelly not died, he would not have given evidence in accordance with the version in his statements, or at all. Whilst acknowledging that Mr Kelly had not sought to reinstate the charges prior to his death, the judge said that it could not be known whether Mr Kelly would have changed his mind. Mr Kelly had not refused to give evidence, and had not formally retracted his statement. While he had said at one point that he ‘made up’ the allegations, the judge observed that this was ‘quite obviously not true’. In the judge’s view, what Mr Kelly would have said if called to give evidence was ‘highly speculative’. 76 The judge added that, in his view, Mr Kelly’s reluctance to give evidence, and his request that the charges not proceed, were not a result of his statements being untrue; and the prosecution did not discontinue the prosecution because Mr Kelly was an unreliable or dishonest witness. His Honour was satisfied that Mr Kelly’s reference at one point to having ‘made up’ the allegations was ‘capable of being readily dismissed in light of the evidence obtained by the police, including the medical evidence, crime scene, forensic, CCTV, listening devices, surveillance devices and prison call evidence (appreciating not all evidence is admissible against each accused)’. In circumstances where Mr Kelly’s statement that he ‘made it all up’ could not be true, there was nothing about the decision to prosecute which could reasonably bring the administration of justice into disrepute. 77 In summary, the judge acknowledged that Mr Kelly’s statements to the effect that he did not want the matter to proceed were a relevant consideration. However, they were not decisive. There was a public interest in serious crimes being prosecuted. 78 The judge rejected the submission that the prosecution caused the situation whereby the defendants could not cross-examine Mr Kelly. His Honour explained that, had the original prosecution been maintained, it would not have reached a trial prior to Mr Kelly’s death in January 2020. As such, it could not be said that the prosecution’s decision to discontinue the proceedings deprived the defendants of the opportunity to cross-examine Mr Kelly. 79 The judge noted that there was no allegation of impropriety on the part of the police. There was no basis to suggest, for example, that they had been waiting for Mr Kelly to die in order to prosecute the case. In circumstances where the appellants were suspects in the possible murder of Mr Kelly, it was appropriate that MCIB reviewed the case. And during the course of the subsequent investigation, various pieces of evidence were identified that strengthened the prosecution case. Some of that evidence (the prison calls) had been available but not considered prior to Mr Kelly’s death; other evidence was fresh and in some cases compelling. -- 18 of 66 -- [2026] SASCA 46 S Doyle JA 16 80 The judge concluded his reasons by drawing together his conclusions in relation to the admissibility of Mr Kelly’s statements under s 34KA and the application for a stay: Section 34KA makes admissible statements made by a deceased person, provided the pre- conditions for admission are met, which they are in this case. Upon review of all of the evidence, taking into account the fresh evidence, and having regard to s 34KA, the police were faced with a body of evidence that provided a sound basis to re-charge the accused with serious criminal offending. The loss of the opportunity to cross examine the accused is not a basis to exclude the evidence and nor is it a basis to order a permanent stay. I am satisfied for the reasons I have given that the s 34KA statements are admissible against [Collins, Harris and Simpson]. It follows I am satisfied that they can get a fair trial. I take that into account in the context of the permanent stay application. Accepting that the circumstances of this case are unusual, the decision to recharge the accused after the charges were withdrawn, given the chronology of events, provides no basis to conclude that there had been a defect that goes to the root of the administration of justice such that a permanent stay should be ordered. I do not consider that the facts of this case come anywhere near requiring the exceptional or extreme result, that is a permanent stay. If I were to do so it would be a result prone to ‘forfeit public confidence’.17 It was submitted by counsel for [Harris] that the manner in which s 34KA is sought to be used is alien to its purpose. It was submitted that Parliament did not intend for the section to be used in a case like this and essentially for policy reasons it should not be permitted. That was said to be a basis on which to order a permanent stay or to exclude the out of court statements. I do not accept that submission. There is nothing in the wording of the section that negates its application. Indeed, a plain reading of the section permits the admission of the out of court statements in this case, subject to discretionary exclusion. 81 For these reasons, the judge ruled that Mr Kelly’s out of court statements were admissible against Ms Collins, Mr Harris and Mr Simpson, and that there was no basis for a stay of proceedings. The admissibility of out of court statements under s 34KA of the Evidence Act 82 As recounted above, various out of court statements made by Mr Kelly were received in evidence under s 34KA of the Evidence Act. The judge declined to exclude those statements under s 34KD(2) of the Evidence Act as an exercise of his ‘discretion’ to exclude evidence on unfairness grounds. 83 Sections 34KA to 34KD of the Evidence Act were introduced by the Statutes Amendment (Serious and Organised Crime) Act 2012 (SA). They relevantly provide as follows: 17 Jago v District Court (NSW) (1989) 168 CLR 23 at 50 (Brennan J). -- 19 of 66 -- [2026] SASCA 46 S Doyle JA 17 34KA—Admissibility of evidence of out of court statements by unavailable witnesses (1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and (b) the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and (c) any 1 of the conditions specified in subsection (2) is satisfied. (2) The conditions are as follows: (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of a bodily or mental condition; (c) that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence. (3) For the purposes of subsection (2)(e) fear is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to— (a) any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and (b) the statement's contents; and (c) any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross-examine the person); and (d) any other measures that could be taken by the court in relation to the relevant person; and (e) any other relevant circumstances. (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— (a) by the person in support of whose case it is sought to give the out of court statement in evidence; or (b) by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement). -- 20 of 66 -- [2026] SASCA 46 S Doyle JA 18 (6) Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement. (7) This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence. (8) In this section— prescribed proceedings means— (a) proceedings for a criminal offence; or (b) proceedings under the Serious and Organised Crime (Control) Act 2008. 34KB—Credibility (1) This section applies if in prescribed proceedings— (a) a statement not made in oral evidence in the proceedings (an out of court statement) is admitted as evidence of a matter stated; and (b) the maker of the out of court statement does not give oral evidence in connection with the subject matter of the statement. (2) In a case to which this section applies— (a) any evidence which (if the person who made the out of court statement had given such evidence) would have been admissible as relevant to the reliability of the statement and the person's credibility as a witness is so admissible in the proceedings; and (b) evidence may, with the court's leave, be given of any matter which (if the person who made the out of court statement had given such evidence) could have been put to the person in cross-examination as relevant to the reliability of the statement and the person's credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and (c) evidence tending to prove that the person who made the out of court statement made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that the person contradicted himself or herself. (3) If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation. (4) In this section— prescribed proceedings means— (a) proceedings for a criminal offence; or (b) proceedings under the Serious and Organised Crime (Control) Act 2008. 34KC—Stopping the case where evidence is unconvincing (1) If on a defendant's trial before a judge and jury for an offence the judge is satisfied at any time after the close of the case for the prosecution that— (a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings (an out of court statement); and -- 21 of 66 -- [2026] SASCA 46 S Doyle JA 19 (b) the evidence provided by the out of court statement is so unconvincing that, considering its importance to the case against the defendant, a conviction of the offence would be unsafe, the judge must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury. (2) Where— (a) a jury is directed under subsection (1) to acquit a defendant of an offence; and (b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence, the defendant may not be found guilty of that other offence if the judge is satisfied as mentioned in subsection (1) in respect of it. (3) This section does not prejudice any other power a judge may have to direct a jury to acquit a person of an offence or to discharge a jury. 34KD—Court's general discretion to exclude evidence (1) In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if— (a) the statement was made otherwise than in oral evidence in the proceedings; and (b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. (2) Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise). (3) In this section— prescribed proceedings means— (a) proceedings for a criminal offence; or (b) proceedings under the Serious and Organised Crime (Control) Act 2008. 84 At common law, out of court statements are, of course, generally inadmissible as hearsay. Section 34KA of the Evidence Act represents a departure from this general position, rendering admissible an out of court statement made by a person (‘the relevant person’) who is ‘unavailable’ in one of the senses contemplated by ss 34KA(2)(a) to (e). Where the relevant person is unavailable because he or she is dead or unfit to give evidence (s 34KA(2)(a) and (b)), the statement is admissible without more. Where the relevant person is unavailable because he or she is outside of the State or cannot be found (s 34KA(2)(c) and (d)), the statement is admissible if it is not reasonably practicable to secure their attendance or find them. Where the relevant person is unavailable by reason of fear (s 34KA(2)(e)), the statement is admissible if the Court gives leave. 85 As elaborated upon below, s 34KA has the potential to operate to the prejudice or detriment of an accused by reason of the inability to test the evidence through the usual mechanism of cross-examination. However, ss 34KB to 34KD seek to ameliorate this prejudice or detriment to an accused. -- 22 of 66 -- [2026] SASCA 46 S Doyle JA 20 86 Section 34KB permits an accused to adduce evidence that affects the reliability of the statement or the credibility of the statement maker. Section 34KC empowers the Court to direct an acquittal at the close of the prosecution case where it considers that the evidence provided by the out of court statement is so unconvincing that a conviction may be unsafe. 87 Importantly for present purposes, s 34KD confers on the Court a statutory discretion to exclude an out of court statement having regard to the danger that its admission would result in an undue waste of time (s 34KD(1)),18 and preserves the common law ‘discretions’ to exclude evidence on the ground that the prejudice exceeds its probative value,19 or on the grounds of unfairness20 or impropriety21 (ss 34K(2)). 88 In R v Haines,22 Kourakis CJ described s 34KA as involving not only a fundamental departure from the common law approach to hearsay, but also from the common law principle that an accused should be able to test the evidence of any witnesses through cross-examination in open court. Whilst the operation of s 34KA is obviously predicated upon the ability for a trial to proceed with hearsay evidence and without cross-examination, nevertheless the forensic disadvantage associated with the receipt of hearsay evidence and the loss of the procedural right to cross-examine must be accorded substantial weight in determining whether, for example, the evidence should be excluded on the ground of unfairness.23 89 As Kourakis CJ explained, when evaluating the forensic disadvantage or unfairness to an accused, relevant considerations will include:24 • The value of the evidence. • The significance of the statement to the prosecution case overall. • Whether the statement is supported in material respects by other prosecution evidence. • Whether the statement constitutes a major part of the prosecution case. • The reliability of the evidence that the statement was made. • The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken. • The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement. 18 R v Haines [2016] SASC 96 at [39] (Kourakis CJ). 19 R v Christie [1914] AC 545. 20 R v Lobban (2001) 80 SASR 550. 21 Bunning v Cross (1978) 141 CLR 54. 22 R v Haines [2016] SASC 96 at [40] (Kourakis CJ). 23 R v Haines [2016] SASC 96 at [40]-[41] (Kourakis CJ). 24 R v Haines [2016] SASC 96 at [40] (Kourakis CJ). -- 23 of 66 -- [2026] SASCA 46 S Doyle JA 21 • Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify. 90 In R v Haines, Kourakis CJ excluded the statement of the relevant witness (who was too ill to attend to give evidence) on the ground of forensic unfairness. The witness had given a statement to police in which she gave a version which did not suggest any defensive aspect to the violence that she saw the accused perpetrate towards the victim. As his Honour acknowledged, the statement provided strong evidence of the commission of the charged murder.25 However, there were several considerations which told against its admission, including: the duration of the process of taking the statement, combined with the stressful circumstances in which it was taken; the absence of any clear evidence to suggest that an appropriate degree of care was taken to ensure that the statement accurately reflected the witness’ version of what had occurred; the lack of any contemporaneous record of the witness’ acknowledged reference when speaking to police to a defensive purpose; the appearance of what the judge described as a strategy to obtain an incriminating statement (for example, by excluding the witness’ family from the interview room, and the absence of any independent observer or record of the interview); the fact that the witness later prepared an affidavit in which she gave a different version of events which included a clear defensive purpose on the part of the accused; and the fact that it was unlikely that the witness would have given evidence in the terms of the challenged statement had she been available to give evidence. Kourakis CJ observed that, particularly in light of the last two of these matters, if the statement were admitted, the trial would involve a contest between the two inconsistent versions said to have been given by the witness, without any cross-examination to assist the jury in their task. The prosecution of the accused for murder would, for all practical purposes, take place ‘on the papers’.26 In his Honour’s view, ‘the forensic unfairness of a trial in that form for this offence and in the circumstances of this case is too great to countenance’.27 91 Subsequently, in Mullen v DPP,28 Lovell J emphasised that the existence and terms of s 34KA mean that the inability to cross-examine cannot, of itself, amount to a sufficient reason to exclude a statement otherwise admissible under that section on the ground of unfairness. In referring to Kourakis CJ’s reasons in R v Haines, Lovell J explained that the decision in that case was predicated upon the witness having given two statements which were fundamentally inconsistent with each other, with one of them being clearly unreliable, and without there being any scope for s 34KB to ameliorate the potential harshness or unfairness of this to the accused.29 25 R v Haines [2016] SASC 96 at [42] (Kourakis CJ). 26 R v Haines [2016] SASC 96 at [51] (Kourakis CJ). 27 R v Haines [2016] SASC 96 at [51] (Kourakis CJ). 28 Mullen v DPP (2020) 136 SASR 274 at [39] (Lovell J). 29 Mullen v DPP (2020) 136 SASR 274 at [38], [87] (Lovell J). -- 24 of 66 -- [2026] SASCA 46 S Doyle JA 22 92 Although Lovell J was prepared to accept that there was a general or residual discretion to exclude evidence on the ground of unfairness, his Honour emphasised that the discretion was predicated not upon unfairness in some general or loose sense. Rather, its operation was predicated upon a conclusion that receipt of the evidence would involve a risk that the accused would not receive a fair trial.30 Further, his Honour also emphasised that a determination of the significance of the forensic disadvantage to an accused associated with admission of a statement under s 34KA, and hence whether a statement might be excluded on the ground of unfairness, must occur in the context of the statutory scheme of which s 34KA forms part31 – being a scheme which was plainly designed to permit, in appropriate cases, the admission of hearsay evidence from witnesses who were unavailable to give evidence and be cross-examined. 93 Lovell J ultimately declined to interfere with the magistrate’s decision in that case to admit the two statements relied upon by the prosecution. As his Honour explained, the magistrate, in declining to exercise his discretion to exclude the statements, had appropriately had regard to: the significant value of the evidence to the prosecution case; the reliability of each statement, bearing in mind the witness’ ability to perceive the matters addressed in the statement; the circumstances in which the statements were taken; and the extent of the forensic disadvantage associated with the loss of the common law facility of cross- examination. In the circumstances of that case, Lovell J was not satisfied that admission of the statements gave rise to any unacceptable miscarriage of justice, or was otherwise in error.32 94 In R v Sahlstorfer,33 a prosecution for murder, Stein J admitted the transcript of the evidence of a witness given in a previous trial pursuant to s 34KA of the Evidence Act. The witness had since died, and was the only eyewitness to the events that led to the victim’s death. Her Honour declined to exclude the evidence under s 34KD on the ground of unfairness or otherwise. 95 In commencing her consideration of ss 34KA and 34KD, Stein J made reference to some of the jurisprudence in relation to the operation of similar legislation in the United Kingdom.34 Her Honour noted that, in applying that legislation, the courts had focussed upon the risk of the statement being unreliable, and the ability for that risk to be assessed and tested. Relevant considerations in that regard included the circumstances in which the statement was made and recorded, the interest or disinterest of the maker of the statement in the relevant matter, any independent evidence which corroborated or dovetailed with the statement, and the availability of material to test the reliability of the unavailable 30 Mullen v DPP (2020) 136 SASR 274 at [45]-[46] (Lovell J). 31 Mullen v DPP (2020) 136 SASR 274 at [42] (Lovell J); and at [51], citing Police v Dunstall (2015) 256 CLR 403 at [83] (Nettle J). 32 Mullen v DPP (2020) 136 SASR 174 at [83], [89]-[90] (Lovell J). 33 R v Sahlstorfer [2024] SASC 55. 34 R v Sahlstorfer [2024] SASC 55 at [51] (Stein J), referring to Riat v The Queen [2012] EWCA Crim 1509 at [5]-[8] (Hughes LJ). -- 25 of 66 -- [2026] SASCA 46 S Doyle JA 23 witness’ statement. It was also relevant to have regard to the importance of the evidence to the prosecution case. 96 After a detailed consideration of the reasons of Kourakis CJ and Lovell J in R v Haines and Mullen v DPP, Stein J declined to exclude the challenged evidence in that case on the ground of unfairness.35 Her Honour relied upon considerations including that: the evidence had probative value and was significant to the prosecution case; the evidence was supported in material respects by other evidence (such as CCTV footage, telephone records and the evidence of some other witnesses); and there were not the same concerns about reliability as existed in R v Haines. In relation to the reliability of the evidence, Stein J acknowledged that the witness was not a disinterested person. However, there was no concern about the process by which the evidence was obtained from the witness, and there was material which would assist in assessing and testing the evidence. In addition to the supporting evidence mentioned above, the vantage point of the witness was known, his evidence was consistent with earlier statements he had given to police, and there was some material which could be used to challenge the witness’ credibility or reliability (such as his psychological history, his drug use and his antecedents). Even though the defendant would suffer some forensic disadvantage from an inability to cross-examine the witness, it could not be said, bearing in mind the statutory regime of which ss 34KA and 34KD form part, that admission of the evidence would result in an unfair trial. The admissibility of Mr Kelly’s out of court statements 97 The appellants’ submissions challenging the judge’s refusal to exclude Mr Kelly’s statements in an exercise of the unfairness discretion fall within two broad categories. 98 The first category of submissions focusses upon the potential unreliability of Mr Kelly’s statements, and the extent of the forensic disadvantage by reason of the inability to cross-examine Mr Kelly. They generally entail an application of the principles arising from the decisions in R v Haines, Mullen v DPP and R v Sahlstorfer, as summarised above. The second category of submissions focusses upon the unusual circumstances in which s 34KA of the Evidence Act was sought to be invoked by the prosecution in the present case; that is, in the context of the reinstitution of a prosecution that had earlier been discontinued upon Mr Kelly’s request that the charges be withdrawn. As will be seen, this latter category of submissions overlaps with the grounds for challenging the judge’s refusal to grant a stay of the proceedings. 99 Returning to the first category of submissions, the appellants advance several overlapping contentions. 35 R v Sahlstorfer [2024] SASC 55 at [76]-[91] (Stein J). -- 26 of 66 -- [2026] SASCA 46 S Doyle JA 24 100 The appellants commence by acknowledging the central importance of Mr Kelly’s statements to the prosecution case. His statements undoubtedly have a high probative value. The appellants acknowledge that this is, at one level, a consideration in favour of admission of the evidence. Admission of the evidence would tend to serve the public interest in prosecuting serious crimes with the benefit of all relevant evidence. However, the appellants also emphasise the double-edged nature of this consideration. They argue that the importance of Mr Kelly’s statements to the prosecution case also tends to underscore the risks associated with the potential unreliability of this evidence, and the forensic disadvantage to the appellants in not being able to cross-examine Mr Kelly. There is some force in this submission, although its ultimate weight can only be assessed after considering the balance of the parties’ submissions in relation to the risk of unreliability in Mr Kelly’s statements. 101 In addressing the risk of unreliability in Mr Kelly’s statements, the starting point is that there is no reason to doubt the accuracy of the statements as a record of things said by Mr Kelly. In the case of the triple-zero phone call and the footage from the body-worn camera, the evidence consists of recordings of the words said on the relevant occasions. In the case of the first and second affidavits, they were prepared by police officers, following processes designed to ensure the accuracy of those affidavits as a record of Mr Kelly’s version of events. There is no challenge to the trial judge’s finding that the affidavits are likely to be an accurate record of what the relevant officers were told by Mr Kelly. Like the trial judge, I do not attach much significance to any failure to properly administer the oath in respect of the second affidavit. I see no reason to doubt the judge’s conclusion that the circumstances and process were sufficient to ensure that Mr Kelly understood the seriousness of the occasion and the importance of accuracy. 102 Next, it is relevant that Mr Kelly, as the victim of the offending, was plainly in a position to make the observations he recounted in his statements. It is also relevant that he made those statements at a time when the relevant events were fresh in his mind. I acknowledge that some allowance must be made for the likely traumatic nature of the events and for the potential for his observations or recollection to have been affected by any drugs he had taken. However, there is no reason to think that Mr Kelly would not have been able to accurately recount, at least in general terms, the offending which was described in his statements. As for the timing of the statements, the triple-zero phone call and body-worn footage contain statements which were made in the immediate aftermath of the relevant events, and at a point in time when it is inherently unlikely Mr Kelly would have fabricated a version of events. Although the statements in his affidavits were made some time later, they were consistent with the version given in the earlier statements, but with additional detail. 103 In the circumstances described, there is no reason to have any significant concerns about the reliability of Mr Kelly’s statements as a record of the words said by him, and of events that he was in a position to observe and describe. -- 27 of 66 -- [2026] SASCA 46 S Doyle JA 25 104 Nor, in my view is there any reason to have any significant concerns about the general reliability of Mr Kelly’s version of events. 105 The appellants place significant reliance upon the evidence that Mr Kelly subsequently told police that he had ‘made up’ the allegations. However, this statement must be understood in the context in which it was made, and in the context of the other evidence of what occurred on the night in question. 106 The reference by Mr Kelly to having ‘made up’ the allegations occurred in the context of him telling police that he wanted the charges against the appellants withdrawn. Mr Kelly’s suggestion that he made the allegations up in order to obtain a victim of crimes payment was implausible given that he never made, or showed any interest in making, an application for a payment. It was also accompanied by the apparently contradictory suggestion that what had happened to him was the result of some sexual infidelity or betrayal. At the same time, or soon after, he also offered several other reasons for not wanting to be involved in any prosecution of his allegations, including health concerns. While the police at the time were quite reasonably sceptical about all of the reasons given by Mr Kelly for wanting the charges withdrawn, there was no basis for the Court to determine with any confidence what his true motivation was. However, it is of some significance that Mr Kelly did not repeat, or appear to maintain, his initial reference to the allegations having been ‘made up’ or untrue. 107 Further, and in any event, the bald statement by Mr Kelly that he had ‘made up’ the allegations cannot have been true. As outlined earlier, and by the judge, there was ample evidence (some of which was objective, and independent in its source) to support key aspects of what Mr Kelly had alleged occurred that evening. I include in this respect the evidence: from the scene (including weapons or items found in Ms Collins’ home); from the CCTV footage; from the telephone records; from the examination of Mr Kelly’s injuries; and from the telephone intercepts. Much of this evidence was consistent with, or ‘dovetailed’ with, key aspects of the description of what occurred in Mr Kelly’s statements. 108 In light of this other evidence, the most that could be said is that Mr Kelly might have made up, or embellished, some of the detail of what occurred. Whilst ultimately a matter for the jury, it is fair to say that Mr Kelly’s claim to have ‘made it all up’, or to have ‘made up’ the allegations, is not a sound basis for suggesting that there was a significant risk that Mr Kelly’s statements were generally unreliable. 109 For similar reasons, I do not accept that there is a sound basis for submitting that Mr Kelly gave two fundamentally different or inconsistent versions of events in the sense that the unavailable witness did in R v Haines. In R v Haines, the witness did not simply disavow in some general way a previous version of events. Rather, she subsequently swore an affidavit containing a positively different version of events. There were also circumstances capable of explaining why the earlier version might have been incomplete and inaccurate. -- 28 of 66 -- [2026] SASCA 46 S Doyle JA 26 110 In summary, the suggestion that Mr Kelly recanted or disavowed the version of events in his statements is misleading. It is perhaps true that he did so in the literal sense that he later said he ‘made up’ the allegations. But for the reasons I have given, I do not accept that it is true to say that he did so in any real or meaningful sense. Although Mr Kelly made clear that he was no longer willing to cooperate with the prosecution of the charges that had been laid, or no longer wanted to have any involvement in the prosecution of those charges, I do not think there is any sound basis for impugning the general reliability of the statements he had made. 111 None of the above is to deny that there may well have been some scope to challenge the reliability of certain aspects of the detail of Mr Kelly’s statements. Indeed, there were some internal inconsistencies that may well have been fertile ground for cross-examination. Most notably, there was a discrepancy between the first and second affidavits in relation to Mr Martin’s involvement.36 There was also a discrepancy in relation to how Mr Kelly travelled to Ms Collins’ house (by walking or driving), and as to whether Ms Collins and Mr Harris each had a flick knife and blow torch. In addition to these, and some other more minor internal inconsistencies, there was also some tension between Mr Kelly’s description of the ways in which he was assaulted, and the evidence as to his injuries. There were, for example, only limited signs of any of the blows said to have been inflicted using a tomahawk and bat, and of some of the blow torch burns that he described. 112 The respondent contends that, to the extent that there might be a proper basis for impugning some aspects of the detail of Mr Kelly’s statements, they are matters of relative insignificance. Further, any forensic disadvantage or unfairness would be limited because the areas of challenge could be identified for the jury, and the parties and judge could provide the jury with appropriate assistance in assessing their significance. 113 The appellants, however, emphasise the potential significance of these matters of detail in the forensic context of the present matter. They argue that, even accepting the reliability of the evidence suggesting their presence and general involvement, the case was one which involved allegations of several different criminal acts, and encompassed criminal responsibility through participation in a joint criminal enterprise. As such, the detail of matters such as the time at which each person arrived, the sequence of events, and the number and nature of the weapons or implements used to inflict the violence, was potentially relevant to the knowledge, agreement and participation of each individual. 114 Once again, there is some force in these submissions. The admission of Mr Kelly’s statements without the opportunity for any cross-examination as to these matters would undoubtedly result in some forensic disadvantage or unfairness to the appellants. However, as Lovell J emphasised in Mullen v DPP, 36 Noting that this was excluded from the evidence, and hence that this discrepancy was not available at trial as a means of challenging Mr Kelly’s reliability. -- 29 of 66 -- [2026] SASCA 46 S Doyle JA 27 the enactment of s 34KA involved a clear legislative intention that at least some degree of forensic disadvantage through the inability to cross-examine would be tolerated in pursuit of the public interest in prosecuting serious crimes with all relevant evidence. The issue is whether the circumstances of the particular case would result in an unfair trial, having regard to statutory context in which s 34KA exists. 115 In my view, for the reasons set out above, the present case is readily distinguishable from the circumstances in R v Haines. The concerns about the reliability of the out of court statements in that case were of a quite different nature and magnitude to the concerns in the present case. Despite the usual importance of cross-examination in securing a fair trial, but bearing in mind the legislative context of which s 34KA forms part, I am not persuaded that the inability to cross- examine Mr Kelly would result in an unfair trial. With appropriate directions, the jury would have been able to make an adequate assessment of the credibility and reliability of the pertinent aspects of Mr Kelly’s statements. The forensic disadvantage or unfairness to the appellants was tolerable; it was not inconsistent with the appellants receiving a fair trial. 116 For completeness, I do not think that the repetitious nature of the allegations in Mr Kelly’s statements was a matter of much significance. Any potential prejudice or unfairness arising from this repetition was able to be addressed by appropriate directions from the judge (such as the directions that were in fact given in this case). 117 In my view, consideration of the second category of submissions advanced by the appellants does not alter the analysis. 118 The appellants put their submissions within this category in various ways. They argue that, in passing s 34KA, the legislature cannot be taken to have intended or contemplated that the section would be used in the unusual circumstances that arose in the present case. They argue that the section was intended for use in circumstances where a prosecution might be undermined by the death or other unavailability of a witness; that it was not intended for use in order to revive or reinstitute proceedings which the prosecution had previously decided to discontinue. They argue that the section was not intended for use in circumstances in which the relevant witness was already unavailable (by reason of his refusal to cooperate), quite apart from his death qualifying him as unavailable under s 34KA(2)(a); and in the circumstances where the prosecution had, in effect already, accepted the consequences of this unavailability by discontinuing the relevant criminal proceedings. 119 I am not persuaded that there is any merit in these submissions. It may be accepted that the circumstances that arose in this case were unusual, and unlikely to have been within the (subjective) contemplation of the legislature at the time of the relevant amendments to the Evidence Act. However, that is not to the point. To the extent that the ‘intention’ of the legislature is relevant, it is only relevant in -- 30 of 66 -- [2026] SASCA 46 S Doyle JA 28 the sense that the objective intention or purpose of the legislature may inform the task of construing the words used. One does not apply legislation by considering whether a particular outcome was one that may or may not have been intended or contemplated by the legislature in some general or loose sense. One applies legislation by construing the words used, albeit having regard to the context and evident purpose of the provisions under consideration. 120 Here, it is plain that Mr Kelly’s death triggered the operation of s 34KA and provided for the admissibility of his out of court statements. The background circumstance that the prosecution had, prior to Mr Kelly’s death, decided to discontinue an earlier prosecution is not relevant to that conclusion. 121 The only relevant qualification to this admissibility of Mr Kelly’s statements under s 34KA is the Court’s ability to exclude those statements under s 34KD(2) through an exercise of its general unfairness discretion. The meaning of ‘unfairness’ in this context must be considered in accordance with the ordinary common law principles, as considered in cases such as R v Haines, Mullen v DPP and R v Sahlstorfer. That invites a focus primarily upon the issues already addressed, and in particular the risk of unreliability and the extent of forensic disadvantage as a result of the inability to cross-examine. In my view, there is limited, if any, scope for consideration of the matters the subject of this second category of submissions. 122 As Lovell J emphasised in Mullen v DPP, any evaluation of the forensic disadvantage to an accused person from the admission of evidence under s 34KA must occur in a context informed by the plain intention of the legislative scheme to permit, in appropriate cases, the admission of hearsay evidence without any ability to test that evidence through cross-examination. Whether an accused person’s right to a fair trial would be intolerably compromised by the admission of evidence under s 34KA must be determined in this context. However, I do not think that the evaluation of the forensic disadvantage to the accused, or of the ability for there to be a fair trial, extends to consideration of the circumstances in which the witness became unavailable, or the circumstances in which the prosecution has been instituted or pursued, in some more general sense which is not connected with any impact upon the risk of unreliability or forensic disadvantage. 123 There was and is no submission that Mr Kelly’s out of court statements should be excluded on the ground of any illegality or impropriety. The appellants’ submissions being confined to exclusion on the grounds of unfairness, I do not think the broader considerations sought to be relied upon are relevant. It may be that, in an extreme case, it would involve an abuse of the court’s processes to seek to rely upon evidence otherwise admissible under s34KA. This might warrant exclusion of the evidence pursuant to the Court’s separate power to exclude evidence which was obtained through illegality or impropriety. Alternatively, as considered in the next section of these reasons, it might warrant a stay of -- 31 of 66 -- [2026] SASCA 46 S Doyle JA 29 proceedings. However, I do not think these broader circumstances are relevant to a determination of whether out of court statements otherwise admissible under s 34KA should be excluded under s 34KD(2) on the ground of unfairness. 124 In any event, for the reasons explained in the next section of these reasons, I see no reason to be critical of the prosecution’s reliance upon s 34KA in the present case. It cannot be said that the prosecution set out to achieve any illegitimate tactical advantage, for example, by delaying a prosecution so as to benefit from the unavailability of a witness. Indeed, the death of Mr Kelly was not, of itself, the reason for the prosecution revisiting its earlier decision to discontinue the proceedings against the appellants. Although that death was a circumstance which led to further investigation work, that further work revealed additional evidence. The existence of this additional evidence justified a reconsideration of whether the appellants should be prosecuted. In deciding whether to recommence the criminal proceedings against the appellants, and in determining the evidence to be relied upon in those proceedings, there was no reason for the prosecution to eschew reliance upon Mr Kelly’s out of court statements. It was entirely appropriate that the prosecution pursue the admission of that evidence under s 34KA of the Evidence Act. 125 In the circumstances, I agree with the trial judge’s determination that Mr Kelly’s out of court statements were admissible under s 34KA of the Evidence Act. There was no basis for their exclusion under s 34KD(2) on the grounds of unfairness. The principles governing a permanent stay of proceedings 126 Turning to the appellants’ challenge to the judge’s refusal of their application for a permanent stay of proceedings, it is appropriate to commence with a consideration of the applicable principles. 127 By way of summary, it is well accepted that a superior court’s power to control and supervise proceedings extends to permanently staying criminal proceedings in order to protect its processes from abuse.37 128 It is for the moving party to satisfy the court of the existence of facts or circumstances which justify the grant of a stay. Consistently with the statements of principle set out below, the onus has been described as ‘a heavy one’.38 129 The categories of a case in which the court may grant a stay of proceedings are neither closed nor capable of strict definition or articulation.39 At the same time, the circumstances warranting a stay of proceedings are not entirely at large. The grant of a stay will usually require, for example, circumstances which involve 37 Jago v District Court (NSW) (1989) 168 CLR 23 at 25 (Mason CJ); Williams v Spautz (1992) 174 CLR 509 at 518 (Mason CJ, Dawson, Toohey and McHugh JJ). 38 Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ). 39 Rogers v The Queen (1994) 181 CLR 251 at 255 (Mason CJ). -- 32 of 66 -- [2026] SASCA 46 S Doyle JA 30 vexation, oppression or unfairness to a party to the litigation, or which would otherwise bring the administration of justice into disrepute.40 130 A permanent stay of proceedings is often described as a remedy of last resort, only to be granted in rare or exceptional circumstances.41 As Kiefel CJ, Gageler and Jagot JJ explained in GLJ v Roman Catholic Church for the Diocese of Lismore:42 … the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute. 131 Consistently with this description of the exceptionality of the grant of a stay, a general complaint of unfairness or potential prejudice will not be sufficient. A stay predicated upon the inability of a defendant to receive a fair trial requires demonstration of a fundamental defect in the process that ‘goes to the root of the trial’, and which cannot be satisfactorily addressed or mitigated through procedural orders, directions or other mechanisms available to the court.43 132 In determining whether it is appropriate to grant a stay, and in particular whether an anticipated defect in the trial process would result in intolerable detriment to the administration of justice, the court must also take into account the countervailing public interest in the prosecution of serious criminal offences. As the plurality observed in Walton v Gardiner:44 … the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the appellant, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. 40 Rogers v The Queen (1994) 181 CLR 251 at 256 (Mason CJ). 41 Jago v District Court (NSW) (1989) 168 CLR 23 at 31, 34 (Mason CJ), 60 (Deane J), 76 (Gaudron J); William v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); R v Glennon (1992) 173 CLR 592 at 605 (Mason CJ and Toohey J); Dupas v The Queen (2010) 241 CLR 237 at [33]-[35] (the Court); Strickland v DPP (Cth) (2018) 226 CLR 325 at [62], [106] (Kiefel CJ, Bell and Nettle JJ). 42 GLJ v Trustees for the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442 at [3] (Kiefel CJ, Gageler and Jagot JJ). 43 Jago v District Court (NSW) (1989) 168 CLR 23 at 34 (Mason CJ); William v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ). 44 Walton v Gardiner (1993) 177 CLR 378 at 396 (Mason CJ, Deane and Dawson JJ). -- 33 of 66 -- [2026] SASCA 46 S Doyle JA 31 133 Kiefel CJ, Bell and Nettle JJ made observations to similar effect in Strickland v DPP (Cth):45 Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of proceedings should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute. 134 By way of elaboration upon the above, and reflecting the observations made by Lovell J in Mullen v DPP (in the context of whether the forensic disadvantage to a defendant would result in unfairness justifying the exclusion of evidence under s 34KD(2) of the Evidence Act), consideration of the significance of any interference with the fairness of the trial process must be informed by any relevant statutory context. In other words, whilst there is obviously some immutable core to the notion of a fair trial, consideration of the significance of the unfairness associated with a trial proceeding with hearsay evidence from a witness who is not available to give evidence must be informed by the legislative policy underpinning s 34KA of the Evidence Act. That section plainly reflects a legislative policy that tends to favour the prosecution of serious criminal offences over the usual level of protection afforded to a defendant by the general inadmissibility of hearsay and availability of cross-examination. 135 There are several decisions which have considered the operation of the above principles in the context of an attempt by the prosecution to pursue criminal proceedings reflecting charges which had previously been discontinued through the entry of a nolle prosequi. In R v B, GN,46 Blue J (with whom Kourakis CJ and Vanstone J agreed) reviewed the leading authorities before concluding that there was no ‘special category’ of abuse arising from the earlier entry of a nolle prosequi in respect of the same or similar offences. The determination of whether it is appropriate to grant a stay of the new proceedings in these circumstances requires an application of the same general principles as those described above. The fact that a nolle prosequi has earlier been entered in proceedings involving the same or similar offences is simply one of the circumstances to be taken into account in the 45 Strickland v DPP (Cth) (2018) 266 CLR 325 at [106] (Kiefel CJ, Bell and Nettle JJ) (footnotes omitted). 46 R v B, GN (2014) 121 SASR 43. -- 34 of 66 -- [2026] SASCA 46 S Doyle JA 32 application of those principles.47 That said, in considering the significance of the earlier nolle prosequi, his Honour identified several guiding propositions:48 • mere delay in the institution or prosecution of a proceeding, of itself, is not an abuse of process, but will be an abuse of process where the delay results in the trial being unfair;49 • the entry of a nolle prosequi does not amount to a determination of the issues in the proceeding and does not bar the institution of a new proceeding for the same offence;50 • the mere entry of a nolle prosequi at the trial of an earlier information for the same offences, of itself, is not an abuse of process;51 • the entry of a nolle prosequi is more likely to be oppressive or unfair the further a trial has proceeded towards a conclusion in favour of the accused;52 • in assessing whether there is unfairness, injustice, prejudice or oppression, regard is to be had to the conduct of the prosecution, the reasons for that conduct and its effect upon the accused.53 136 In that case, the defendant was charged with sexual offending against a child which was alleged to have occurred between 1985 and 1988, when the child was between about five and eight years of age. Following complaints by the child in 1988 to her mother, to a police officer and to a doctor, the defendant was arrested and charged. The committal hearing (at which the mother, the police officer and the doctor all gave evidence) took place in late 1989, and the defendant was committed for trial. The trial was listed to commence in early 1990. However, in mid 1989, while the prosecution was attempting to proof her, the complainant (who was by then 10 years of age) became distressed, and said she did not want to see the defendant again or give evidence. In early 1990, the prosecution was informed by the complainant’s mother that the complainant did not want to be proofed again or give evidence. Shortly before the commencement of trial, the prosecution entered a nolle prosequi. Some 18 years later, in 2008, the complainant attended a police station, reporting that she had been sexually assaulted by the defendant between 1985 and 1988. She told police the previous charges had not proceeded because she was too scared to give evidence, but that at 28 years of age, she was now ready to proceed with the matter and wished to re-agitate it. Following further investigation by the police, the defendant was again charged. The Court of 47 R v B, GN (2014) 121 SASR 43 at [39] (Blue J, Kourakis CJ and Vanstone J agreeing). 48 R v B, GN (2014) 121 SASR 43 at [38] (Blue J, Kourakis CJ and Vanstone J agreeing) (numbering removed). 49 Jago v District Court (NSW) (1989) 168 CLR 23 at 34 (Mason CJ); R v Jacobi (2012) 114 SASR 227 at [44], [57]-[59] (Gray and Sulan JJ). 50 R v Doyle [1988] 2 Qd R 434 at 435 (Connolly J, Vasta J agreeing), 438 (Shepherdson J); R v Swingler [1996] 1 VR 257 at 266 (Winneke P, Callaway JA and Crockett AJA). 51 R v Glencross (2000) 206 LSJS 158 at 161, 164-165 (Bleby J, Lander and Wicks JJ agreeing). 52 R v Jell; ex parte Attorney-General [1991] 1 Qd R 48 at 63 (Thomas J, Macrossan CJ and Lee J relevantly agreeing). 53 R v Swingler [1996] 1 VR 257 at 265 (Winneke P, Callaway JA and Crockett AJA). -- 35 of 66 -- [2026] SASCA 46 S Doyle JA 33 Criminal Appeal upheld the trial judge’s refusal to grant a permanent stay of the proceedings. The delay and consequential forensic disadvantage to the defendant, whilst relevant considerations, did not outweigh the public interest in having the charges tried. In circumstances where the evidence remained susceptible of rational and safe forensic evaluation, there was no abuse of process or other basis to permanently stay the proceedings.54 A stay of proceedings in the present case 137 In contending that the judge ought to have ordered a permanent stay of proceedings in the present case, the appellants rely upon several features of the proceedings. Their submissions commence with, or take as their premise, the unfairness or forensic disadvantage to the appellants by reason of the prosecution case against them being founded upon out of court statements by the key prosecution witness (the complainant, Mr Kelly) which cannot be tested by cross- examination. They repeat their submissions as to the potential unreliability of those statements given not only some inconsistencies in the statements made, but also the circumstance that Mr Kelly later suggested he ‘made up’ the allegations, and became unwilling to cooperate with the prosecution. Even accepting that the out of court statements by Mr Kelly were admissible under s 34KA, the appellants argue that the unfairness to them remained a relevant consideration in support of a stay. 138 However, the real gravamen of the appellants’ submissions in support of a stay is a challenge to the prosecution conduct in reinstituting criminal proceedings in circumstances where it had made a conscious decision to discontinue the earlier proceedings for the same offending because the complainant, Mr Kelly, had become unwilling to cooperate. They criticise the prosecution attempt to rely upon Mr Kelly’s death as rendering him unavailable to give evidence under s 34KA(2)(a) of the Evidence Act in circumstances where Mr Kelly had already become unavailable to give evidence (in the sense that the prosecution had accepted that he was unwilling to give evidence, and had discontinued the earlier proceedings against the appellants). Put differently, the appellants argue that, even though the prosecution did not cause Mr Kelly to become unavailable through his death, they had already accepted his unavailability by reason of his unwillingness to cooperate with the prosecution of the appellants. They argue that to utilise s 34KA in these circumstances, where Mr Kelly’s death was not the true or operative cause of his unavailability, and where the prosecution seeks to revive a discontinued prosecution rather than rescue an ongoing prospection, would be to utilise that section in a way which is alien to its intended field of operation and purpose. 139 The appellants submit that to permit the prosecution to rely upon Mr Kelly’s statements in these circumstances would be to confer an unfair and inappropriate tactical advantage upon the prosecution. They submit that to refuse to order a stay 54 R v B, GN (2014) 121 SASR 43 at [10]-[12], [47]-[49] (Blue J, Kourakis CJ and Vanstone J agreeing). -- 36 of 66 -- [2026] SASCA 46 S Doyle JA 34 of the proceedings would be to condone an abuse of process, or to permit the proceedings to continue in circumstances which would bring the administration of justice into disrepute. 140 In explaining why I do not accept these submissions, I would make several observations. 141 The first is that the reinstitution of criminal proceedings which have previously been discontinued does not, of itself, involve an abuse or otherwise bring the administration of justice into disrepute. As explained in R v B, GN, the previously discontinued proceedings are merely a relevant circumstance. In the present case, the previous proceedings were discontinued at an early stage, and well before the commencement of trial. Although the reason for discontinuing the earlier proceedings was the refusal of the complainant to cooperate, the refusal to grant a stay in R v B, GN demonstrates that this is not necessarily a barrier to later proceedings for the same offending. 142 It is true that the proceedings in R v B, GN were only reinstituted after the complainant changed her mind and became willing to cooperate. Whilst Mr Kelly did not indicate any equivalent change of mind prior to his death, I am not persuaded that this difference between the cases is a matter of great significance. 143 There is no basis to suggest that the prosecution’s conduct in the present case involved a cynical attempt to exploit s 34KA of the Evidence Act. It cannot be said that the prosecution deliberately delayed the proceedings in the anticipation or hope that Mr Kelly might die, and that his out of court statements might become admissible under s 34KA. Not only was the death of Mr Kelly unanticipated, but also that was not the only change in circumstances prior to the reinstitution of the criminal proceedings. 144 For understandable reasons, the death of Mr Kelly led to further investigations which in turn revealed significant further evidence probative of the appellants’ offending. Although some of this evidence was not strictly fresh (because, for example, it arose from police listening to telephone calls made by the appellants from prison that had been recorded some years earlier), some of it was fresh and compelling. It included highly probative admissions made by Ms Collins and Mr Simpson during the course of intercepted conversations they had with others. In my view, these significant advances in the investigation of the appellants’ offending, and the availability of additional evidence, provided a justification for the prosecution to revisit their earlier decision not to proceed with the charges against the accused. And in deciding whether to reinstitute charges with the benefit of that evidence, I see no reason for the prosecution to not also rely upon the death of Mr Kelly as triggering the admissibility of his out of court statements. 145 So far as Mr Harris is concerned, I do not think that it matters that the prosecution did not ultimately rely upon any additional or new evidence as against -- 37 of 66 -- [2026] SASCA 46 S Doyle JA 35 him. There are two reasons for this. The first is that I consider it artificial to focus too closely upon the positions of the individual appellants in this respect. When deciding whether to reinstitute criminal proceedings, it was appropriate for the prosecution to take a broader view. It was appropriate for the prosecution to focus upon the fact that their further investigations had revealed further evidence probative of the allegations generally. The second is that, to the extent that it is relevant to consider whether there was new or fresh evidence against each appellant, I have mentioned the evidence from Ms Crammond which implicated Mr Harris. I do not think that it matters that the prosecution did not ultimately seek to deploy this evidence in the trial. The potential availability of this evidence was a sufficient change in circumstances which justified revisiting the decision whether to pursue the criminal proceedings as against Mr Harris. 146 Having explained what I consider to be the legitimacy or appropriateness of the prosecution decision to reinstitute criminal proceedings which had previously been discontinued, the appellants’ complaints of abuse or unfairness fall away. To the extent that there remains any prejudice or unfairness to the appellants in permitting the prosecution to proceed, I regard this as no more than a function of the policy reflected in s 34KA of the Evidence Act. Even accepting that the legislature might have contemplated that the usual operation of s 34KA would be to permit the continued pursuit of criminal proceedings despite the death (or other intervening unavailability) of a witness, once it is accepted that the section also renders out of court statements admissible in circumstances such as the present case, there is no basis for contending that continuation of the proceedings would involve an abuse of process or otherwise bring the administration of justice into disrepute. Even accepting a degree of forensic disadvantage or unfairness to the appellants by reason of the admissibility of the out of court statements without the opportunity to cross-examine, this merely reflects the legislative policy inherent in ss 34KA to 34KD of the Evidence Act. Given this legislative policy, it cannot be said that the proceedings would involve an abuse of process or otherwise bring the administration of justice into disrepute. 147 For all of these reasons, the trial judge was correct to refuse the appellants’ application for a permanent stay of proceedings. The separate trial application 148 Mr Harris also appeals his convictions on the bases that the judge erred in law, or occasioned a miscarriage, either: by declining to order that the case against him proceed by way of a separate trial; or, in the alternative, by not ensuring the redaction of certain prejudicial material from the transcript of some out of court statements made by Mr Simpson during his police interview (which were admitted as against Mr Simpson). 149 In support of these grounds, Mr Harris relies upon the fact that there was a substantial body of evidence, admissible in the joint trial as against Ms Collins or Mr Simpson, which was not admissible as against Mr Harris. This evidence -- 38 of 66 -- [2026] SASCA 46 S Doyle JA 36 consisted largely of out of court statements made by Ms Collins and Mr Simpson during recorded telephone calls or conversations, and by Mr Simpson in a recorded police interview. Importantly, this evidence was not only inadmissible against Mr Harris, but also gave rise to three types of prejudice. The evidence was prejudicial because it included statements which implicated Mr Harris in the charged offending. It also included statements which tended to corroborate the version of events given by Mr Kelly in his out of court statements, in circumstances where the credibility and reliability of that version was central to the prosecution case against Mr Harris. And it included statements made by Mr Simpson which alleged previous discreditable conduct by Mr Harris. 150 Mr Harris accepts that the potential for prejudice to a defendant from evidence in a joint trial which is not admissible against that defendant may ordinarily be addressed by appropriate directions to a jury; that is, by directions which instruct the jury to give separate consideration to their verdicts against each defendant, and to confine their consideration of the case against each defendant to the evidence admissible against that defendant. However, Mr Harris submits that, as reflected in s 34T of the Evidence Act, there will be cases where the potential for prejudice is so significant that separate trials may be required. He submits that the combination of the three types of prejudice identified above make this such a case. 151 In addressing Mr Harris’ submissions, I propose to commence by summarising the evidence relied upon by the prosecution which was not admissible against Mr Harris, and the judge’s reasons for declining Mr Harris’ application for a separate trial. I will next identify and consider the principles governing an application for a separate trial in a case such as the present. I will then address more directly the merits of Mr Harris’ challenge to the judge’s refusal to grant him a separate trial. The evidence which was inadmissible against Mr Harris The out of court statements of Ms Collins 152 The prosecution case included two categories of out of court statements made by Ms Collins, being statements she made in phone calls made from prison, and in other conversations recorded through the use of listening devices. 153 During the most relevant of the prison phone calls, Ms Collins told her mother that she had lent Mr Kelly $1,000 because he was going to get his head ‘kicked in’, and Mr Kelly came to her needing money. She also said that she had told Mr Kelly that he broke her heart. These were both details that formed part of Mr Kelly’s version of events in his out of court statements. 154 As to the other conversations recorded through the use of listening devices, they included recordings in which Ms Collins: -- 39 of 66 -- [2026] SASCA 46 S Doyle JA 37 • referred to having said ‘are you not bashing him properly or is he not learning?’. In context, this was a reference to Mr Harris bashing Mr Kelly; • confirmed the truth of a reference in a newspaper article to Mr Kelly having agreed to pay $50,000 (which, on Mr Kelly’s version of events, was a demand made by Mr Harris); • said that one of the offenders had bandaged up Mr Kelly’s feet, put him in a car and driven him to an address (which, on Mr Kelly’s version of events, was done by Mr Simpson); and • referred to having said that either Mr Kelly was not being bashed properly or was not learning. 155 Importantly for present purposes, these out of court statements, which were admissible against Ms Collins but not against Mr Harris, tended both to corroborate aspects of Mr Kelly’s version of events, and to directly implicate Mr Harris in the offending. The out of court statements of Mr Simpson 156 The prosecution case also included out of court statements made by Mr Simpson, being statements he made in two police interviews, in phone calls made from prison, in other conversations recorded through the use of listening devices, and in some text messages and Facebook messages sent by Mr Simpson. 157 In his police interviews, Mr Simpson made a number of statements that tended both to corroborate aspects of Mr Kelly’s version of events and to directly implicate Mr Harris in the offending. For example, he said that Mr Kelly was already in bad shape when he (Mr Simpson) arrived; that there were gas torches in the kitchen when he arrived; that Mr Kelly looked like he had been through the wars and that he had been doused in petrol; that one of Mr Kelly’s hands was purple and red, as though it had been slammed in a door; that he gave Mr Kelly his phone after Ms Collins had thrown it on the ground; that he drove Mr Kelly home; and that the motive for the assaults related to money and mobile phones. Several aspects of this detail had been mentioned by Mr Kelly in his version of events. 158 Importantly, Mr Simpson’s case at trial was that he had been present at Ms Collins’ house when Mr Kelly was assaulted, but that he was not a willing participant and that to the extent he was involved he was only complying with directions given by Mr Harris, and did so because he was frightened of Mr Harris. Consistently with this, during his first police interview, Mr Simpson described his fear of Mr Harris (whom he referred to by his nickname). 159 In particular, Mr Simpson made reference on three occasions to previous violence by Mr Harris. He said that on an earlier occasion Mr Harris had ‘shot someone’s leg off’. He said that Mr Harris had been ‘picking on’ him for weeks prior to the incident, including by using Facebook to tag him in a picture of a -- 40 of 66 -- [2026] SASCA 46 S Doyle JA 38 knuckle duster and to call him a dog. Later in the interview, Mr Simpson referred to an occasion when he thought he was going to get ‘severely fucking bashed’ by Mr Harris. Later again, he returned to his reference to Mr Harris intimidating him and tagging him in a picture of a knuckle duster and calling him a dog. He also repeated his reference to an incident in which Mr Harris had been bashed by a ‘fucking scary dude’ named Bobby, whose voice sent ‘chills down the spine’, but that this had not stopped Mr Harris from ‘blowing his leg off’. 160 It is relevant to mention at this point the circumstances surrounding the admission of Mr Simpson’s police interviews. Although the prosecution proposed only to rely upon certain aspects of the first interview in the case against Mr Simpson, counsel for Mr Simpson pressed for the tender of the entirety of the interview, including the passages in which Mr Simpson referred to being intimidated by Mr Harris, and to Mr Harris having previously shot a man in the leg. In considering the admission of this interview, the judge at times referred to Mr Simpson applying to adduce this evidence of discreditable conduct by Mr Harris. However, it is accepted that, in reality, this evidence was admissible in the case against Mr Simpson by reason of the prosecution obligation to tender the entirety of the record of interview (that is, both its inculpatory and exculpatory aspects).55 It is also accepted that none of it was admissible against Mr Harris. 161 In due course, and at the request of counsel for Mr Simpson, the recording of the entire interview was played to the jury. Just as Mr Simpson’s case at trial was that his fear of Mr Harris was readily apparent from seeing and hearing how he spoke about Mr Harris in this interview, Mr Harris’ submissions on appeal emphasise the significance of the prejudice associated with the jury viewing this interview. 162 In addition to Mr Simpson’s police interview, the prosecution also relied upon recordings of phone calls made from prison in which Mr Simpson: • twice denied detaining Mr Kelly, saying that he had already been detained by the time he (Mr Simpson) arrived; • said that when he arrived, Mr Kelly was getting out of the shower; • said that it was Mr Harris and not him who sprayed Mr Kelly with petrol and set him on fire with a blow torch; and • said that he drove Mr Kelly home. 163 The prosecution also relied upon recordings of a number of other intercepted phone calls in which Mr Simpson made a large number of admissions, including repeated references to his use of a blow torch, his cutting Mr Kelly’s Achilles tendon with a scalpel, and the torture of Mr Kelly more generally. He also said 55 Nguyen v The Queen (2020) 269 CLR 299. -- 41 of 66 -- [2026] SASCA 46 S Doyle JA 39 that Mr Kelly was detained by others for about three and half hours before he (Mr Simpson) drove him home; and that Mr Kelly ‘nearly got killed over a thousand dollar debt and fucking a couple of mobile phones’. 164 Finally, the prosecution relied upon some out of court statements made by Mr Simpson in writing. These included text messages in which Mr Simpson referred to cutting an Achilles tendon, and to him having said he ‘done it … because the other two done nothing’; and a message he sent through Facebook messenger in which Mr Simpson said that he was ‘the one who done most of it’, and that he cut Mr Kelly’s Achilles tendon, broke his hands and blow torched him. 165 As with Ms Collins’ out of court statements, not only did several of Mr Simpson’s out of court statements implicate Mr Harris, but they also tended to corroborate several aspects of the detail of the version of the events provided by Mr Kelly in his out of court statements. The trial judge’s reasons for refusing to order a separate trial 166 After declining the appellants’ application to exclude the out of court statements of Mr Kelly, and their application for a permanent stay of the proceedings, the judge also heard and refused Mr Harris’ application for a separate trial. 167 In his voir dire ruling refusing Mr Harris a separate trial,56 the judge acknowledged that the prosecution case against Ms Collins and Mr Simpson included evidence which was not admissible as against Mr Harris, and yet which was prejudicial to Mr Harris. That evidence not only implicated him in the offending, but also disclosed some earlier discreditable conduct on his part. After stating that he had taken into account the common law principles governing joint trials, and s 34T of the Evidence Act, the judge concluded that the prejudice to Mr Harris could be adequately addressed through appropriate directions to the jury. 168 As mentioned earlier, at the conclusion of the prosecution case, counsel for Mr Harris renewed his application for a separate trial, or at least contended that there had been a mistrial by reason of the failure to order that his client have a separate trial.57 In support of the renewed application, Mr Harris’ counsel relied upon the fact that, contrary to what had been anticipated when his initial application for a separate trial had been determined, the prosecution had not in fact led any evidence from Ms Crammond as to out of court admissions by Mr Harris. As a result, the prejudice to Mr Harris from the joint trial fell to be assessed in a context where the only evidence of Mr Harris’ conduct within Ms Collins’ house (other than Mr Kelly’s statements) was the inadmissible out of court statements of Ms Collins and Mr Simpson. Mr Harris’ counsel also relied upon the fact that Mr Simpson’s out of court statements had included a more specific reference to 56 VDT362-364. 57 T660. -- 42 of 66 -- [2026] SASCA 46 S Doyle JA 40 Mr Harris having previously shot a man in the leg than had apparently been anticipated at the time of the voir dire. 169 The judge again declined the application, adhering to his earlier conclusion that the prejudice to Mr Harris could be adequately addressed through directions to the jury.58 The trial judge’s directions 170 No complaint is made about the directions that the trial judge ultimately gave to the jury. In several places in his summing up, he emphasised the importance of giving separate consideration to the case against each defendant, and to the need for the jury to confine their consideration to the evidence admissible against the relevant defendant. For example, in the context of addressing the out of court statements made by Ms Collins and Mr Simpson, the judge instructed the jury: When you come to consider this case, it is obviously not fair to sheet home to another accused something that someone else said about them when they were not present to respond to whatever they were saying. It is really the reason why you cannot use what they say in the case of another accused. It is important before I go through all of this that you always keep in mind that you have to compartmentalise the evidence. You are truly dealing with three separate trials being dealt with at once. If it is, members of the jury, and I am not suggesting you will do this, but if you were to take, for example, a more favourable view of [Mr Kelly’s] evidence because of admissions made by a particular accused, you do not carry that positive view that you may have formed about [Kelly’s] evidence because of some of the admissions into the case against the next accused. It is important that when you come to the next accused, you wipe the slate clean. To borrow what [counsel for [Mr Harris] said], you start with a fresh table, which is a good way to look at it. That is the fair way and the only way that you can approach it. 171 Later, when addressing Mr Simpson’s suggestion in his police interview that he had felt intimidated or threatened by Mr Harris, the judge instructed the jury to ignore this evidence when considering the case against Mr Harris: [Counsel for [Mr Simpson]] pointed to his client’s evidence that when he said that he did not feel like he had a choice. In his interview, he said he felt threatened by [Mr Harris] and explained his understanding about [Mr Harris’] reputation for violence. That explained, on [Simpson’s] case, why he complied and drove [Mr Kelly] home even though he had no involvement in what was going on. I remind you that what he said about [Mr Harris] is relevant only in the case against [Simpson]. It is inadmissible against [Mr Harris] and you cannot reason, in [Mr Harris’] case, that he did any of the things [Simpson] claims in his record of interview. The principles governing separate trials 172 The basic principles governing an application for separate trials are not in dispute. In particular, there is no challenge to the three basic common law 58 T663. -- 43 of 66 -- [2026] SASCA 46 S Doyle JA 41 principles identified in the joint reasons of Bray CJ, Mitchell and Sangster JJ in R v Harbach:59 • where defendants are charged with committing a crime jointly, there should ordinarily be a joint trial; • a joint trial may be held even if it will mean that the jury will be exposed to evidence which is admissible against one defendant, but inadmissible against another defendant; and • a joint trial may be held even where one defendant seeks to cast the blame for the charged offending on the other. 173 As to the first of these principles, it is accepted that the interests of justice will usually favour the jury having the whole picture presented to them. Put another way, it is usually desirable that the jury have before them the respective accounts and explanations given by all of the alleged criminal participants in the relevant incident; and that the jury be in a position to assess both the case of any defendant on whom blame might be cast, as well as the case of any defendant seeking to cast the blame on another.60 There is also a public interest in avoiding the risk of inconsistent verdicts, and in avoiding the additional burden upon resources and witnesses associated with multiple trials.61 174 The authorities accept that the public interest in favour of joint trials will generally be sufficiently cogent to warrant leaving it to the judge’s directions to the jury to safeguard against injustice.62 The authorities demonstrate a willingness to accept that juries can and will follow the trial judge’s directions to consider the position of each defendant separately, and by reference only to the evidence admissible against that defendant. The authorities also demonstrate a willingness to accept that juries can and will follow such directions, despite the ‘mental gymnastics’ that this may require in joint trials, where there is different evidence admissible against different defendants.63 175 That said, there will of course be cases where the interests of justice demand that a defendant have a separate trial.64 Indeed, in R v Harbach, the Court 59 R v Harbach (1973) 6 SASR 427 at 432 (Bray CJ, Mitchell and Sangster JJ); applied in numerous subsequent decisions, including R v Collie (1991) 56 SASR 302 at 307-310 (King CJ, Cox and Debelle JJ agreeing); and Talbot v The Queen [2019] SASCFC 112 at [55] (Stanley J, Kelly and Parker JJ agreeing). 60 R v Harbach (1973) 6 SASR 427 at 432 (Bray CJ, Mitchell and Sangster JJ); R v Glover (1987) 46 SASR 310 at 312 (King CJ, Jacobs and Millhouse JJ agreeing); R v Collie (1991) 56 SASR 302 at 308- 309 (King CJ, Cox and Debelle JJ agreeing); Talbot v The Queen [2019] SASCFC 112 at [55] (Stanley J, Kelly and Parker JJ agreeing). 61 R v Collie (1991) 56 SASR 302 at 308-309 (King CJ, Cox and Debelle JJ agreeing), citing R v Demirok [1976] VR 244 at 254 (the Court). 62 R v Harbach (1973) 6 SASR 427 at 433 (Bray CJ, Mitchell and Sangster JJ). 63 See, for example, Talbot v The Queen [2019] SASCFC 112 at [64] (Stanley J, Kelly and Parker JJ agreeing). 64 McNamara v The King (2023) 280 CLR 201 at [40] (Gageler CJ, Gleeson and Jagot JJ). -- 44 of 66 -- [2026] SASCA 46 S Doyle JA 42 recognised that the risk of prejudice associated with evidence which is not admissible against a particular defendant may be a ‘highly relevant consideration’ in determining whether to order separate trials.65 176 Where the interests of justice lie in the particular case will turn on matters of fact and degree, including what may be the cumulative significance of several potential sources of prejudice. It requires consideration of the nature and extent of the evidence in the joint trial which is inadmissible against the defendant applying for a separate trial,66 and the resulting risk of prejudice to that defendant having regard to the real issues in the case against that defendant, the forensic context of the joint trial more generally, and the likely effectiveness of judicial directions as a safeguard against the risk of prejudice. The issue is ultimately one of whether the inadmissible evidence is so prejudicial as to intolerably jeopardise that defendant’s right to a fair trial.67 177 The common law principles governing joint and separate trials were recently considered by the High Court in McNamara v The King.68 In summarising the principles in terms consistent with the above, Gageler CJ, Gleeson and Jagot JJ drew upon several of the key South Australian authorities:69 For reasons also specifically endorsed on appeal by three members of this Court70, King CJ went on to reject a distinct argument that the trial judge should have ordered separate trials of Webb and Hay71. Drawing on his earlier discussion of principle in R v Collie72, King CJ referred to there being "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together", especially "where each seeks to cast the blame on the other", leading to the conclusion "that ordinarily persons accused of committing a crime jointly ought to be tried jointly". Reasons of principle and policy earlier identified in R v Collie to support the joint trial of two or more co-accused charged with the same offence centrally include the desirability of a jury having before them "the respective accounts and explanations which are given by all of the alleged criminal participants in [an] incident" in order "to arrive at the truth of the matter"73. It was there emphasised that, "particularly when each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it"74. Pursuit of that objective would be thwarted were evidence given by a co-accused not available to be weighed by the jury in considering their verdicts in respect of each other co-accused, subject to such 65 R v Harbach (1973) 6 SASR 427 at 432 (Bray CJ, Mitchell and Sangster JJ). 66 R v Harbach (1973) 6 SASR 427 at 435 (Bray CJ, Mitchell and Sangster JJ). 67 Talbot v The Queen [2019] SASCFC 112 at [61] (Stanley J, Kelly and Parker JJ agreeing); Bannah v The King [2025] SASCA 89 at [41] (the Court). 68 McNamara v The King (2023) 280 CLR 201. 69 McNamara v The King (2023) 280 CLR 201 at [39]-[42] (Gageler CJ, Gleeson and Jagot JJ). 70 (1994) 181 CLR 41 at 56, 89. 71 (1992) 59 SASR 563 at 585. 72 (1991) 56 SASR 302 at 307-311. 73 (1991) 56 SASR 302 at 309, quoting R v Glover (1987) 46 SASR 310 at 312. 74 R v Collie (1991) 56 SASR 302 at 308, citing R v Gibbins and Proctor (1918) 13 Cr App R 134 at 137, R v Grondkowski [1946] KB 369 and R v Kerekes (1951) 70 WN (NSW) 102. See also Ali v The Queen (2005) 79 ALJR 662 at 670 [58]; 214 ALR 1 at 12. -- 45 of 66 -- [2026] SASCA 46 S Doyle JA 43 particular exclusions or limitations on use as might be warranted in the circumstances of a particular trial. Other important reasons of principle and policy which have properly been recognised to support a joint trial include the avoidance of inconsistent verdicts75 and the delay in the administration of justice, the increased public expense, and the increased trauma and inconvenience to witnesses, associated with the conduct of separate trials76. Mindful that such reasons of principle and policy might not prevail against countervailing considerations in every case, and could not in any case prevail against the fundamental right of an accused to a fair trial, the common law recognised the power of a court presented with a joint indictment to sever the indictment by ordering separate trials of any one or more charges against any one or more accused where the court was satisfied that the overall interests of justice affirmatively required that course to be taken. The power was exercisable before trial and remained exercisable at any stage during the trial. … Given that it is in the nature of a joint trial that evidence adverse to one or more co-accused can become known to the jury which would not be known to separate juries were separate trials of each co-accused to be conducted, the existence of some risk of forensic prejudice to an accused arising from the admission of such evidence is inherent in any joint trial and is not of itself inconsistent with the overall interests of justice supporting the conduct or continuation of the joint trial. Prejudice to a co-accused will not result in the ordering of a separate trial if it is amenable to nullification by judicial direction to the jury77. Having regard to the strength of the reasons of principle and policy which ordinarily weigh in favour of a joint trial, however, even substantial prejudice to a co-accused of a kind not really amenable to nullification by judicial direction will not result in the ordering of a separate trial "as a matter of course"78. To justify the ordering of a separate trial, the particular prejudice to a co-accused must rather be shown to be such as would occasion "positive injustice"79. In a joint trial, as in any other trial, "[a] fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused"80. 178 The reasons of Gordon and Steward JJ contain a similar summary of the common law principles.81 179 A number of cases have sought to grapple with the circumstances in which the risk of prejudice to a defendant may be so great as to require a separate trial for that defendant. 180 For example, in R v Collie,82 the Court held that the nature and extent of the evidence which was not admissible against all six defendants was such that the joint trial resulted in a miscarriage of justice. In so holding, the Court relied upon the cumulative prejudicial effect of two aspects of the evidence which were inadmissible hearsay against the defendants Kranz and Collie, but tended to implicate them in the charged offending. The first related to some prejudicial 75 Webb v The Queen (1994) 181 CLR 41 at 89, citing R v Demirok [1976] VR 244 at 254. 76 R v Demirok [1976] VR 244 at 254. 77 R v Henry [2008] NSWCCA 248 at [12]. 78 See also R v Jones (1991) 55 A Crim R 159 at 164, citing R v Ditroia [1981] VR 247. 79 Caleo v The Queen (2021) 290 A Crim R 352 at 377-378 [137]-[138]. 80 Awad v The Queen (2022) 296 A Crim R 561 at 587 [115], quoting Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84 at 90. 81 McNamara v The King (2023) 280 CLR 201 at [98]-[101] (Gordon and Steward JJ). 82 R v Collie (1991) 56 SASR 302 at 310-311, 318-319 (King CJ, Cox and Debelle JJ agreeing). -- 46 of 66 -- [2026] SASCA 46 S Doyle JA 44 hearsay evidence admissible against the defendant Carter (who faced related charges, but not charges of joint offending with the other defendants), and the second related to some prejudicial hearsay which was relevant to the defendant Lovegrove’s defence of the case against him. In the circumstances of that case, it was considered unsatisfactory for the jury to be required to consider the same issue (in relation to the involvement of Kranz and Collie) upon two different bodies of evidence. 181 In R v Iaria,83 the defendants were jointly charged with murder. In addressing the defendant Panozzo’s application for a separate trial, Nettle J described the common principles governing the application in terms consistent with those outlined above. His Honour then identified some circumstances in which directions to the jury intended to ensure that the case against each defendant was considered separately may be ineffective:84 … there are some cases in which such a direction will be ineffective and they may occur where one or at least more than one of the following considerations apply: where out-of- court statements of co-accused contain grave allegations of bad character of the accused; where there is evidence irrelevant to any issue between the Crown and the accused and is highly prejudicial to the accused; where evidence irrelevant to any issue between the Crown and the accused is admissible against a co-accused, and as against the co-accused serves to corroborate or reinforce the evidence of an eyewitness, not only in what he or she may say against the co-accused, but also in what he or she may say as against the accused, at least where the Crown places heavy reliance upon that witness to implicate the accused and the evidence is open to serious challenge. 182 In that case, the defendant Panozzo advanced three reasons for a separate trial. First, the prosecution case against the defendant Iaria included out of court statements by Iaria which were prejudicial to Panozzo (in that they tended to implicate him in the charged offending), but which were inadmissible against him. Secondly, it was anticipated that the defendant Iaria would elicit evidence of bad character against Panozzo. Thirdly, the case against Iaria was significantly stronger than the case against Panozzo, with the result that the inadmissible evidence was likely to assume a disproportionate significance, particularly in respect of the credit of a significant eyewitness. It was argued that, in these circumstances, any judicial directions intended to prevent the apprehended prejudice would be ineffective. 183 However, despite the case involving some of the features identified by Nettle J as potentially warranting a separate trial, his Honour did not ultimately accede to the application in that case. Whilst leaving open the possibility that the application might be renewed at some later point, his Honour was not satisfied that appropriate directions would be ineffective; or that there was a realistic chance that the jury would not, or would not be able to, follow the anticipated directions. 83 R v Iaria [2004] VSC 110. 84 R v Iaria [2004] VSC 110 at [6] (Nettle J). -- 47 of 66 -- [2026] SASCA 46 S Doyle JA 45 184 Reference may also be made in this context to the reasons of Lovell J in R v Mitchell (No 2).85 In that case, the defendant Rigney applied for a separate trial on the basis that it was anticipated that the cases against his co-defendants would include evidence of a number of out of court statements by those defendants which were prejudicial to Rigney, by reason both that they tended to implicate him in the charged offending, and that they included reference to him having a bad character. In rejecting Rigney’s application, Lovell J was satisfied that the potential prejudice could be addressed through appropriate directions to the jury. In the context of that case, the directions would be straightforward; namely that evidence which was not admissible against Rigney could not be used in any manner when considering the case against him.86 185 That said, as events transpired, and once it became clear that one of the co- defendants (Howell) proposed to run a defence case to the effect that he acted under duress which was predicated upon a fear of Rigney arising out of earlier violent criminal conduct of Rigney, and that certain prejudicial evidence which the prosecution had not planned to rely upon would now be relied upon by Howell, Lovell J ultimately ordered that there be a separate trial for Howell. 186 Before concluding this discussion of the principles governing an application for separate trials in a case alleging joint offending, it is appropriate to mention two further matters of potential significance in the present case. 187 The first of these matters is the particular difficulty, or potential for prejudice, associated with evidence which is inadmissible against one defendant, but which corroborates or supports the credibility or reliability of a key prosecution witness in the case against that defendant. 188 This was a matter mentioned in the passage from Nettle J’s reasons in R v Iaria set out above. As his Honour said, a direction intended to cure prejudice to a defendant may be ineffective where there is evidence which is not admissible in the case against that defendant, but which serves to corroborate or reinforce the evidence of an eyewitness in what he or she says against the defendant (at least where the prosecution places heavy reliance upon that witness to implicate the defendant, and the evidence of that witness is open to serious challenge). 189 This issue was also considered in the earlier Victorian decisions in R v Demirok87 and R v Jones.88 In both of these cases the defendants were jointly charged with murder, and it was held that the decision to hold a joint trial occasioned a miscarriage of justice. Although not the only source of prejudice, a significant consideration in each case was the prejudice to a defendant by reason of there being evidence which was only admissible in the case against the other 85 R v Mitchell (No 2) [2020] SASC 148. 86 R v Mitchell (No 2) [2020] SASC 148 at [43] (Lovell J). 87 R v Demirok [1976] VR 244. 88 R v Jones (1991) 55 A Crim R 159. -- 48 of 66 -- [2026] SASCA 46 S Doyle JA 46 defendant, but which had the potential to support the credibility of a key prosecution witness. 190 In R v Jones, Smith J described the difficulty in the following terms:89 First, in considering the case against Jones, the jury would have considered, among other things, whether to accept Mrs Maloney’s evidence on the question of causation and on the question of whether Jones was acting in concert with or aiding and abetting Waghorn. It would have had little difficulty in accepting her evidence against Jones because it was extensively supported by his record of interview and his unsworn evidence. Thus, before considering the case against Waghorn the likelihood is that the jury would have accepted her evidence, evidence crucial to the case against Waghorn. It would then have been extremely difficult for the jury to consider afresh whether to accept her evidence against Waghorn. It may be doubted whether a specific direction to the jury would have been effective and none was attempted. 191 Crockett J expressly agreed with this passage,90 adding his view that any direction intended to avoid this prejudice would be so ‘unreal and contrived’ as to be incapable of being understood or being effective:91 It might be said that the essential problem faced by the applicant in the present case (and for that matter in Demirok’s case) could, in a sense, be overcome by an appropriate warning to the jury. It might be told, for instance, that when dealing with the case against Waghorn it should when considering Maloney’s evidence put out of its mind any opinion it had formed of her credibility when considering the case against Jones by calling in aid Jones’s police statement. It might then be told that it should consider afresh Maloney’s credibility without recourse to the evidence against Jones which was inadmissible against Waghorn. But such a direction is so unreal and contrived, not to say convoluted, that a judge might be excused from attempting to give it, or a jury from failing to understand it, still less for failing to act upon it. No direction in such a specific form appears to have been given in this case although it seems that in Demirok’s case some such direction may have been undertaken … 192 Murphy J reasoned to like effect, explaining that he could not be satisfied that any warning by a trial judge could hope to persuade a jury, which first accepted Mrs Maloney’s evidence implicating Jones in the killing (based on Jones’ out of court admissions confirmatory of that evidence), to reconsider Mrs Maloney’s evidence implicating Waghorn while disregarding its prior acceptance of that evidence.92 193 Whilst this difficulty in relation to the credibility of a key prosecution witness appears to have been the primary basis for concluding that there had been a miscarriage, each of their Honours also relied upon other prejudicial evidence which was not admissible against Waghorn. This included some evidence which 89 R v Jones (1991) 55 A Crim R 159 at 180; see also at 184 (Smith J). 90 R v Jones (1991) 55 A Crim R 159 at 163 (Crockett J). 91 R v Jones (1991) 55 A Crim R 159 at 164 (Crockett J). 92 R v Jones (1991) 55 A Crim R 159 at 167 (Murphy J). -- 49 of 66 -- [2026] SASCA 46 S Doyle JA 47 suggested that Waghorn had a propensity for violence and criminality which, their Honours held, was likely to have influenced the jury.93 194 Similar difficulties arose, and were held to have required separate trials in both R v Pham94 and R v Swan.95 195 In R v Pham, the evidence of two significant prosecution witnesses in a joint trial against two defendants was relevantly corroborated through an out of court statement made by one defendant which was admissible against one defendant, but not the other. The New South Wales Court of Criminal Appeal was not prepared to accept that the jury could realistically have ignored or avoided the corroborating effect of this evidence. Hulme J (with whom Spigelman CJ agreed) explained:96 Whether or not the jury could have put out of its mind when considering the case against the Appellant the recorded interview, inadmissible against him, there was no practical way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the Appellant than they had or would have done in the case against [the other defendant]. Thus in effect, the interview must have intruded into the case against the Appellant when it was not admissible against him. In reaching this conclusion, I do not disregard the judge’s directions to the jury nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form [two] assessments of the reliability of each of the Crown’s principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it. 196 Similarly, in R v Swan, the Queensland Court of Appeal held that there ought to have been separate trials in a case where the out of court admissions of one defendant in a police interview tended to bolster the credit of a prosecution witness, but were inadmissible against the other defendant. Holmes JA (with whom Applegarth and Jackson JJ agreed) explained:97 What was not capable of being so resolved was the problem that Smith’s account reinforced Mondientz’ on aspects that were critical in establishing a case against Swan: the story of his violence to Ms Quirk at the roadside with, at the same time, the withdrawal of Smith from the attack on Ms Quirk and her indication in the admonition ‘that’s enough’, that no further harm should be done to the woman. It was inevitable that the jury would regard Mondientz’ account as more credible for that reinforcement; and, as I have indicated, those circumstances were pivotal to the conviction of Swan. 197 Finally, I mention the decision of the Victorian Court of Appeal in Destanovic v The Queen.98 In their joint reasons in that case, Weinberg and Beach JJA treated the cases mentioned above as illustrations of the particular difficulty that may arise in joint trials where there is evidence which is capable of corroborating an important prosecution witness, but which is inadmissible against 93 R v Jones (1991) 55 A Crim R 159 at 165 (Crockett J), 167 (Murphy J), 184-185 (Smith J). 94 R v Pham [2004] NSWCCA 190. 95 R v Swan [2013] QCA 217. 96 R v Pham [2004] NSWCCA 190 at [8] (Hulme J, Spigelman CJ agreeing). 97 R v Swan [2013] QCA 217 at [42] (Holmes JA, Applegarth and Jackson JJ agreeing). 98 Destanovic v The Queen (2015) 49 VR 276. -- 50 of 66 -- [2026] SASCA 46 S Doyle JA 48 one defendant. Their Honours distilled the following helpful summary of the relevant principles:99 The relevant legal principles that govern this matter seem to us to be as follows. First the general rule is that crimes alleged to have been committed jointly should be tried jointly. Nothing that we say is intended to diminish the importance of that proposition. Secondly, an accused who is tried jointly with other co-offenders is entitled to have his or her guilt determined solely on the basis of the evidence admissible in his or her trial. That is the basis for the separate consideration direction invariably given in such cases. Thirdly, a jury considering the credibility of a key witness in the trial of a particular accused may have to be told, in clear terms, that some matters that bear positively upon that credibility can only be taken into account in the case of one accused, and not another. That is the logical product of the rule that an accused is to be tried solely upon the basis of the evidence admissible against him or her in his or her case. Fourthly, in the vast majority of cases no issue as to divisibility of the credibility of a single witness will arise. Character will, in that sense, be regarded as indivisible. The task of assessing the witness’s credibility will be undertaken by having regard to the entirety of that witness’s evidence. The jury will not be left in a situation where they may have to conclude that the witness is truthful insofar as he gives an account that implicates one accused, but not truthful insofar as that same account implicates the other. Fifthly, there will be some cases where that relatively straightforward approach requires modification. A witness whose testimony is suspect, but who is amply corroborated by evidence admissible only against one accused, and not the other, may be accepted by the jury where there is corroboration, and rejected where there is not. A good example is where the witness’s account is supported by a series of admissions made by one accused which, self-evidently, are not admissible against the other. Sixthly, the fact that the evidence against each accused differs, and may be far stronger in the case of one than in the case of the other, is not of itself determinative as to whether a separate trial should be ordered. It is, however, a factor to be taken into account in the exercise of judicial discretion. Seventhly, there is always the ultimate question to be determined as to whether the trial itself was fair, and whether any error on the part of the judge gave rise to a substantial miscarriage of justice. The weight of authority seems to us to support each of the principles set out above. 198 Their Honours later added:100 Both Pham and Swan are useful examples of the difficulties that can arise in joint trials where matters of credibility are in issue. They provide support for the approach that we think has long prevailed in this State. An accused is entitled to be tried on the evidence admissible against him or her, and solely on that evidence. The accused is not to be 99 Destanovic v The Queen (2015) 49 VR 276 at [99]-[107] (Weinberg and Beach JJA). 100 Destanovic v The Queen (2015) 49 VR 276 at [130] (Weinberg and Beach JJA). -- 51 of 66 -- [2026] SASCA 46 S Doyle JA 49 convicted by a ‘side wind’, through evidence that bolsters the credibility of a key prosecution witness, but forms no part of the Crown case against that accused. 199 As to when the risk of prejudice from inadmissible corroborating evidence will require a separate trial, their Honours said:101 The judge will have to determine whether, notwithstanding the separate consideration direction that will be given, there is a real risk that the jury may find the task of compartmentalising the evidence altogether too difficult. 200 On the facts of that case, the risk of prejudice had been exacerbated by a prosecution submission which invited the jury to take a global approach to the credit of the relevant prosecution witness, and the judge’s failure to correct this by reminding the jury of the need to consider the credibility of this witness separately as against each defendant having regard only to the evidence admissible against that defendant.102 201 To the extent that it might be said that credit is to be approached on the basis that it is indivisible, or that a global approach to credit is appropriate,103 the above cases involve a clear rejection of that suggestion.104 They establish that in a joint trial, the cases against each defendant, including the credibility and reliability of witnesses who have given evidence against all defendants, must be assessed by reference only to the evidence admissible against that defendant. To the extent that this gives rise to practical difficulties associated with approaching the evidence, and assessments of credibility and reliability, in a divisible or compartmentalised manner, that may be a significant consideration in determining whether there should be joint or separate trials. But it cannot be ignored. In some cases, the difficulty may be adequately addressed through directions to the jury, and reliance upon their ability to adhere to those directions. In other cases, the difficulty may require separate trials, or result in a miscarriage of justice where the matter proceeds as a joint trial. 202 The second matter of potential significance in the present case is the guidance provided by s 34T of the Evidence Act: 34T—Severance Where— (a) 2 or more defendants are charged in the same information; and (b) a party proposes to adduce discreditable conduct evidence; and 101 Destanovic v The Queen (2015) 49 VR 276 at [134] (Weinberg and Beach JJA). 102 Destanovic v The Queen (2015) 49 VR 276 at [135]-[138] (Weinberg and Beach JJA). 103 R v Jones (2006) 161 A Crim R 511 at [361]-[362] (Bleby J, Anderson J agreeing); cf [114]-[140] (Duggan J, dissenting on this issue); see also Maxwell P’s dissent in Destanovic v The Queen (2015) 49 VR 276. 104 See also Bannah v The King [2025] SASCA 89 at [52]-[53] (the Court). -- 52 of 66 -- [2026] SASCA 46 S Doyle JA 50 (c) a defendant (the applicant) applies prior to or during a trial for a separate trial or for a charge to be severed from the information, the court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudiced by— (d) evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or (e) evidence proposed to be adduced by another defendant which is not admissible against the applicant; or (f) the applicant's inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of section 34P. 203 Under s 34T(b), a pre-condition to its application is that a party proposes to adduce discreditable conduct evidence. Here, it was anticipated that the prosecution would (as it did) adduce evidence of Mr Simpson’s police interview. As explained earlier, this was ultimately tendered in its entirety, with the result that it included some (hearsay) assertions by Mr Simpson of previous discreditable conduct by Mr Harris (that is, that he had shot someone in the leg). On appeal, the parties proceed on the basis this involved the prosecution adducing discreditable conduct evidence for the purposes of s 34T(b). 204 Like Lovell J in R v Mitchell (No 2),105 I am content to proceed on the basis that this was sufficient to enliven the operation of s 34T, without expressing a concluded view. I am content to do so because I do not consider that s 34T significantly alters the operation of the common law principles I have described above. In my view, in requiring that I attach ‘strong weight’ to ‘a real possibility’ that the defendant may be prejudiced by evidence which is not admissible against him, the section is essentially declaratory of the common law principles. This would be consistent with the reference in the second reading speech to this section ‘confirming and reinforcing’ the existing practice in this area. 205 Whether attaching ‘strong weight’ to the risk of prejudice will ultimately be sufficient to justify a separate trial will still require consideration of not only the countervailing public interest in joint trials, but also the extent to which the risk of prejudice might be effectively addressed through directions to the jury. Application to Mr Harris 206 In addressing the complaint by Mr Harris that he ought to have been granted a separate trial, the appropriate focus is upon whether the failure to grant him a separate trial occasioned a miscarriage of justice.106 105 R v Mitchell (No 2) [2020] SASC 148 at [51] (Lovell J); cf Talbot v The Queen [2019] SASCFC 112 at [71] (Stanley J, Kelly and Parker JJ agreeing); see also R v MJJ; R v CJN (2013) 117 SASR 81 at [49] (Kourakis CJ), [120]-[121] (Gray J). 106 R v MJJ; R v CJN (2013) 117 SASR 81 at [58] (Kourakis CJ); [123] (Gray J); R v Harbach (1973) 6 SASR 427 at 433 (Bray CJ, Mitchell and Sangster JJ); R v Collie (1991) 56 SASR 302 at 310 (King CJ, -- 53 of 66 -- [2026] SASCA 46 S Doyle JA 51 207 The issue could be addressed through consideration of whether the trial judge erred in declining Mr Harris’ voir dire application for a separate trial, in declining to redact certain passages from Mr Simpson’s police interview which were prejudicial to Mr Harris,107 or in declining Mr Harris’ application for a mistrial at the conclusion of the prosecution case. However, in circumstances where the issue of a separate trial is raised on appeal, it is preferable that it be considered by reference to the evidence that was in fact led at trial, and the forensic contest as it in fact eventuated at trial. In the context of the present case, that enables this Court to have regard: to the fact that evidence was not ultimately led from Ms Crammond; to the fact that the only evidence in support of Ms Collins’ and Mr Simpson’s versions of events remained out of court statements which were not admissible against Mr Harris; and to the prejudicial evidence in fact adduced through Mr Simpson’s out of court statements, rather than what was anticipated at some earlier point in time. 208 In analysing this issue, it is appropriate to commence by acknowledging the public interest in the joint trial of defendants charged with having jointly committed the same or similar crimes. As the authorities surveyed above make clear, this public interest is usually a weighty consideration in favour of a joint trial. 209 That said, in assessing the particular weight to be afforded to this public interest in the context of the present case, there are some matters that warrant elaboration. 210 First, it is to be accepted that the present case did involve allegations of joint offending by the defendants Mr Harris, Ms Collins and Mr Simpson. Whilst the case against each differed in some respects, and the prosecution only pursued Counts 5, 6 and 8 against Mr Simpson,108 there was nevertheless a substantial overlap in the prosecution cases and evidence against each defendant. There was a risk of inconsistent verdicts in the event of separate trials. On the other hand, the burden upon resources and witnesses associated with separate trials in the present matter ought not to be overstated. It is significant in this respect that the critical evidence in this case was the evidence of Mr Kelly’s out of court statements, rather than any oral evidence from Mr Kelly. Although separate trials would have required more than one attendance from some witnesses, this was not a case where Cox and Debelle JJ agreeing); R v Jones (1991) 55 A Crim R 159 at 162 (Crockett J); R v Demirok [1976] VR 244 at 252 (the Court); McNamara v The King (2023) 280 CLR 201 at [101] (Gordon and Steward JJ). 107 Noting that there is some authority for the discretionary exclusion of evidence which is probative of an issue in the case against one defendant where its probative value in that respect (even in support of the defendant’s innocence) is outweighed by the prejudicial effect upon another defendant in the same trial: McNamara v The King (2023) 280 CLR 201 at [45]-[50] (Gageler CJ, Gleeson and Jagot JJ); [105]- [109] (Gordon and Steward JJ). 108 Noting that the judge directed an acquittal in relation to Count 7 for all defendants. -- 54 of 66 -- [2026] SASCA 46 S Doyle JA 52 a significant or vulnerable witness would have been exposed to the inconvenience and stress of giving evidence more than once. 211 Secondly, it is also to be accepted that the mere fact that the defence cases of the other defendants, particularly Mr Simpson, sought to implicate Mr Harris, was not a reason for Mr Harris to be given a separate trial. As explained above, it will usually be desirable in such a case that the jury have before them the accounts or explanations of all defendants. Hearing this evidence, and having it tested through cross-examination, will usually assist the jury to arrive at the truth of the matter. 212 However, it is important to bear in mind that the public interest in favour of the jury having the evidence from all defendants before them when considering the criminal responsibility of each is a public interest in having all of the admissible evidence before them. There is no public interest in the jury having before them evidence which is not admissible against a particular defendant when considering the responsibility of that defendant. As events transpired in the present case, none of the defendants gave evidence or otherwise called any evidence in their defence. The only evidence before the jury as to the accounts or explanations of the defendants was the out of court statements of Ms Collins and Mr Simpson, which evidence tended to implicate Mr Harris, but was not able to be tested through cross- examination and was inadmissible in the case against Mr Harris. In other words, it cannot be said in the circumstances of this case that the jury would have benefitted in their consideration of Mr Harris’ responsibility from any evidence as to the accounts or explanations of the other defendants. To the contrary, the only evidence that the jury had of these matters from Ms Collins and Mr Simpson was not admissible against Mr Harris and needed to be ignored by the jury. 213 In any event, the public interest in joint trials needs to be weighed against the countervailing concern to ensure that Mr Harris received a fair trial. In contending that the joint trial was unfair to him, and involved a miscarriage of justice, Mr Harris relies upon the very significant body of evidence in the joint trial which was not admissible against him. As outlined earlier, this evidence consisted of a large number of out of court statements made by both Ms Collins and Mr Simpson. In addition to the extent of this inadmissible evidence, and the relative significance it assumed in the joint trial, Mr Harris relies upon the cumulative effect of three prejudicial aspects of that evidence. 214 The first aspect of the prejudice stemmed from the fact that a number of the out of court statements by both Ms Collins and Mr Simpson implicated Mr Harris in the violent offending alleged against Mr Kelly. The effect of these statements has been outlined earlier, but they included reference to Mr Harris being responsible for significant aspects of the violence alleged to have been perpetrated against Mr Kelly. On the versions of Ms Collins and Mr Simpson, Mr Harris was generally portrayed as the instigator and leader of the violent assaults (albeit that he was also described at times as being ineffectual). Even with clear directions to the jury, one may legitimately question how a jury could disentangle from the other -- 55 of 66 -- [2026] SASCA 46 S Doyle JA 53 evidence, and put entirely to one side when considering the case against Mr Harris, Ms Collins’ and Mr Simpson’s relatively detailed descriptions of Mr Harris’ involvement in the assaults. 215 The second aspect of the prejudice stemmed from Mr Simpson’s reference to an earlier occasion when, according to Mr Simpson, Mr Harris had shot a man in the leg. As explained earlier, this hearsay assertion of discreditable conduct by Mr Harris was treated as admissible as against Mr Simpson. It was treated as probative of Mr Simpson’s case that he felt threatened or intimidated by Mr Harris, and that this explained some of his actions (for example, in bringing a blow torch with him for defensive purposes, and in agreeing to drive Mr Kelly home after he had been detained and assaulted). 216 Consistently with this, Mr Simpson’s counsel sought to emphasise what he contended was the frightened demeanour of Mr Simpson when recounting to police his previous experience of Mr Harris acting violently. But in addition to whatever the jury made of Mr Simpson’s demeanour during this interview, the extreme nature of the violence attributed to Mr Harris, and the colourful terms in which it was described (namely, that there was a ‘fucking scary dude’ who sent ‘chills down the spine’, but that Mr Harris had ‘blown’ or ‘shot his leg off’) were likely to have had an impact on the jury. 217 The risk of prejudice associated with the jury being privy to this inadmissible evidence of previous discreditable conduct was particularly significant in circumstances where it involved an alleged incident of extreme, if not unhinged, violence, and the prosecution case in the present matter was that Mr Harris had engaged in extreme, if not unhinged, violence against Mr Kelly. Once again, as elaborated upon below, one may legitimately question the likely efficacy of the judge’s instruction to the jury that they put this evidence out of their minds when considering the case against Mr Harris. 218 The third aspect of the prejudice stemmed from the significance of the out of court statements of Ms Collins and Mr Simpson in tending to corroborate key aspects of Mr Kelly’s out of court statements, and hence in tending to buttress the credibility and reliability of Mr Kelly’s version of events. 219 As explained earlier in these reasons, the prosecution case against each of the appellants relied heavily upon the jury accepting Mr Kelly’s version of what happened to him in Ms Collins’ house. In this respect it is important to keep in mind that the charges were broken down into not only an allegation of kidnapping (Count 1) but also several different assaults of Mr Kelly (namely, Count 2 (tomahawk to the back of his head), Count 3 (blow torch to burn the hair on his hands and head), Count 4 (blow torch to burn him while in a bathtub), Count 5 (baseball bat to the back of his hands), Count 6 (spraying him with a liquid and using a blow torch to burn him) and Count 8 (cutting his ankle or Achilles with a scalpel)). -- 56 of 66 -- [2026] SASCA 46 S Doyle JA 54 220 Understood in this way, it is apparent that the prosecution case in respect of the individual charges required more than an acceptance of the general credibility and reliability of Mr Kelly’s version of events. It required that the jury consider and assess Mr Kelly’s allegations in respect of each of the assaults that he alleged he had been subjected to. It was entirely possible that the jury might accept his version in relation to some of the assaults but not others. Indeed, given the verdicts in fact reached (finding Mr Harris and Ms Collins guilty of only Counts 1, 4 and 6, and finding Mr Simpson guilty only of Counts 6 and 8), it is apparent that the jury did entertain a doubt about some aspects of Mr Kelly’s version of what occurred. They appear to have had a doubt, for example, about Mr Kelly’s allegations of being hit to the head with a tomahawk and to his hands with a bat or bats. 221 There was undoubtedly some other evidence which corroborated or established some aspects of Mr Kelly’s version of events. There was evidence which tended to establish the presence of the appellants at Ms Collins’ house at the relevant time. There was evidence that police located several weapons or items consistent with those described by Mr Kelly, in Ms Collins’ premises. There was also some independent evidence of Mr Kelly’s injuries, which confirmed the existence of some injuries consistent with some aspects of Mr Kelly’s account of what occurred while he was at Ms Collins’ house. However, apart from this evidence, the only other evidence of what occurred in Ms Collins’ house – which, as I have emphasised, was critical to the responsibility of each of the appellants for the charged offending – was the out of court statements of Mr Kelly, Ms Collins and Mr Simpson. 222 As against Ms Collins and Mr Simpson, their own out of court statements tended to corroborate additional aspects of the detail of Mr Kelly’s description of the offending. For example, Ms Collins referred to Mr Kelly being ‘bashed’ (by Mr Harris) as a result of a debt that was owed, to Mr Kelly agreeing to pay $50,000, to Mr Kelly’s feet needing to be bandaged, and to one of the offenders driving Mr Kelly home. Mr Simpson referred to Mr Kelly having been doused in petrol, having been burnt with a blow torch, having a purple hand, being placed in a shower, having his phone smashed, having his Achilles cut using a scalpel, and being driven home. 223 However, given that this corroborative evidence was not admissible in the case against Mr Harris, the jury were required to consider the credibility and reliability of Mr Kelly’s version afresh when considering their verdicts in the case against him. Even accepting the conceptual clarity of this task, as emphasised in the run of authorities surveyed above, there may be a real practical difficulty for a jury in faithfully performing this task where the inadmissible evidence to be ignored provides significant support for the credibility and reliability of a critical prosecution witness (here, the complainant). Put another way, having permissibly used the out of court statements of Ms Collins and Mr Simpson in order to form a view as to the credibility and reliability of Mr Kelly’s version in the cases against -- 57 of 66 -- [2026] SASCA 46 S Doyle JA 55 those defendants, one may legitimately question the practical reality of the jury being able to avoid any lingering effects of those statements when considering the case against Mr Harris. 224 Importantly in the present case, it is necessary to be mindful of the cumulative effect of the three types of prejudice to Mr Harris that I have outlined. Whilst each operated in slightly differing ways, they all came from a common source (the out of court statements of Ms Collins and Mr Simpson), and must be considered together. Even if their individual effects, had they existed alone, might have been tolerable and consistent with a fair trial, I am satisfied that their cumulative effect has occasioned a miscarriage of justice. 225 In reaching this conclusion, I have not overlooked the significance of the directions given to the jury. I have earlier mentioned the directions given by the trial judge. No criticism has been made of those directions. It is to be accepted that his Honour directed the jury in appropriately clear terms that, when considering the case against Mr Harris, they were required to ignore the evidence in the cases against Ms Collins and Mr Simpson which was inadmissible against Mr Harris. This included a specific direction intended to ensure that, when assessing Mr Kelly’s out of court statements, they understood the need to do so separately for each defendant; that even if they formed a favourable view of his version in the case against one defendant, they needed to ‘wipe the slate clean’ when they came to consider the next defendant. 226 Nor have I overlooked the general principle that juries are taken to understand and comply with the directions they are given. However, as the authorities to which I have referred demonstrate, there are limits to this general principle. There will be circumstances in which the required directions become ‘unreal and contrived’. One category of case in which that may occur is where there is a risk of prejudice through the credibility of a key witness being illegitimately bolstered by evidence which is not admissible in the case of a particular defendant. 227 At the risk of repetition, there were several features of the present case which combined to present an unacceptable risk of prejudice to Mr Harris. The out of court statements by Ms Collins and Mr Simpson gave rise to the risk of prejudice arising from statements which not only implicated him in the offending, and alleged at least one previous episode of extreme violence by Mr Harris, but also tended to bolster the credibility and reliability of Mr Kelly’s version of events. This was in circumstances where the detail of Mr Kelly’s evidence was critical to the prosecution case. Whilst admissibly corroborated in some (relatively general) respects, the jury’s acceptance beyond a reasonable doubt of various aspects of the detail of Mr Kelly’s version of events was critical to the prosecution case in respect of the various charges against Mr Harris. As reflected in the jury’s verdicts, even accepting the general effect of Mr Kelly’s version, there was room to challenge the credibility and reliability of several aspects of that version. -- 58 of 66 -- [2026] SASCA 46 S Doyle JA 56 228 Finally, a factor which makes this case distinguishable from the authorities I have surveyed, and which favours a separate trial, is the fact that not only was Mr Kelly’s version of events critical to the prosecution case, but it was given by way of out of court statements received by the Court pursuant to s 34KA of the Evidence Act. As such, neither Mr Harris, nor the jury, had the benefit of Mr Kelly’s version of events being tested through cross-examination. The jury was left to assess the credibility and reliability of the evidence of Mr Kelly’s version of events on its own terms, and in the context of the balance of the evidence at trial. In those circumstances, it seems to me that the risk of any illegitimate bolstering of Mr Kelly’s version of events by reason of the inadmissible corroboration of aspects of that version through the out of court statements of Ms Collins and Mr Simpson was a matter of particular concern. 229 As I have explained, the legislature’s enactment of s 34KA evinces a clear intention or policy in favour of the admissibility of out of court statements of witnesses, including the evidence of a key eyewitness such as the complainant in the present case. The legislature plainly contemplated that a defendant, such as Mr Harris, might be convicted on the basis of evidence which has not been tested through cross-examination. However, s 34KA says nothing about the impact that the admission of the out of court statement of a key witness might have upon the appropriateness of a joint trial. It seems to me that, as I have endeavoured to explain in the preceding paragraph, the reliance upon out of court statements under s 34KA may give rise to a particular risk of prejudice where a joint trial would involve hearing evidence which is inadmissible against one defendant but which tends to corroborate the credibility and reliability of out of court statements which are probative against all defendants. It is one thing to permit those out of court statements to be admitted without being tested by cross-examination. It is quite another thing to permit that to occur in circumstances where there is a risk of those out of court statements being illegitimately corroborated by evidence which is not admissible against a particular defendant. Whilst the legislature has expressly permitted the former despite it involving a departure from the usual way in which a jury would assess the credibility and reliability of a key witness, it has not addressed the latter. The latter may involve an additional, sometimes intolerable, impairment of the jury’s ability to perform that task in a way that is fair to the affected defendant. 230 In conclusion, I am satisfied that the failure to give Mr Harris a separate trial has, in the unique combination of circumstances that arose in this case, resulted in a miscarriage of justice. There was a real risk, despite the commendably clear directions from the trial judge, that the jury would not have been able to avoid the lingering prejudicial effects of the out of court statements by Ms Collins and Mr Simpson when considering the case against Mr Harris. 231 This was not a case, as commonly occurs with joint trials, where the jury were instructed to, and could realistically be expected to, compartmentalise and ignore a relatively peripheral and contained aspect of the evidence against one -- 59 of 66 -- [2026] SASCA 46 S Doyle JA 57 defendant which was inadmissible against another defendant. The out of court statements of Ms Collins and Mr Simpson were more than peripheral in the context of the joint trial, and their significance was not easily compartmentalised or contained. Despite the best intentions of the jury, there was a risk that these statements would have had a lingering effect, even if subconscious, upon their consideration of the case against Mr Harris. 232 Considered from a different perspective, had Mr Harris been given a separate trial, that trial would have taken on a radically different forensic complexion. It would have turned largely upon the jury’s assessment of Mr Kelly’s version of events, assisted only by the limited independent evidence which corroborated certain general features of that evidence. In my view, challenges to the reliability of Mr Kelly’s version – drawing, for example, upon some of the inconsistencies within Mr Kelly’s accounts, and between his injuries and the violence he described – may have taken on a quite different significance in a separate trial. 233 Finally, I do not think it is an answer to the concerns I have outlined to say that the case against Mr Harris was a reasonably strong one, even when confined to the evidence which was admissible against him. I am not sure one can say that with confidence given that the jury found Mr Harris not guilty of some of the counts alleged against him. But in any event, it is enough to establish a miscarriage of justice that there was a real risk of prejudice to Mr Harris from the evidence which was not admissible against him despite the directions that were given, and that this was capable of affecting the jury’s reasoning to guilt. In my view, that has been established. 234 I am satisfied that Mr Harris has established a miscarriage of justice. In the absence of any submission that this Court should apply the proviso to the common form appeal provisions, I would allow his appeal against conviction. The sentence appeal 235 Having decided to allow Mr Harris’ appeal against conviction, there is no occasion to address his appeal against sentence. I would dismiss that appeal on the basis that it has no utility. Conclusion 236 I would grant permission to appeal in each of the appeals against conviction. 237 I would dismiss the appeals of Ms Collins and Mr Simpson. 238 I would allow Mr Harris’ appeal against conviction, set aside his convictions, and order that he be retried. 239 I would dismiss Mr Harris’ appeal against sentence on the basis that it has no utility. -- 60 of 66 -- [2026] SASCA 46 Kimber AJA 58 240 STANLEY JA: For the reasons given by S Doyle JA and the separate reasons of Kimber AJA, I would allow the appeals. I agree with the orders Doyle JA proposes. 241 KIMBER AJA: I agree with the orders proposed by S Doyle JA. I am grateful for his outline of the evidence and comprehensive summary of relevant authorities and principles. 242 I only wish to make some observations of my own with respect to one aspect of the appeal of Mr Harris. Namely, that a miscarriage of justice is established due to Mr Harris being tried jointly with Ms Collins and Mr Simpson. The three types of prejudice 243 As S Doyle JA has identified, there were three types of prejudice occasioned to Mr Harris because he was tried jointly with Ms Collins and Mr Simpson. All three arose because the out of court statements of Ms Collins and Mr Simpson were before the jury but were inadmissible in the case against Mr Harris. The bulk of the inadmissible statements which implicated Mr Harris are summarised by S Doyle JA. The three types of prejudice were the following. Firstly, those out of court statements implicated Mr Harris in offending with which he was charged. Secondly, those out of court statements tended to support the evidence of the statements of Mr Kelly admitted pursuant to s 34KA of the Evidence Act 1929 (SA), those statements being central to the case against Mr Harris but not the subject of cross-examination. Thirdly, bearing in mind that all offences with which Mr Harris was charged may be characterised as acts of violence, the out of court statements of Mr Simpson included assertions that Mr Harris had shot someone in the past, had picked on him before the incident involving Mr Kelly and caused him to think Mr Harris was going to bash him. As S Doyle JA identifies, it is the combined effect of the prejudice which must be considered. The issue is whether the overall effect of the prejudice was such that it was not capable of amelioration by direction with the result that Mr Harris was deprived of his right to a fair trial.109 244 In my view, it is the second and third types of prejudice arising out of the inadmissible statements of Mr Simpson which, viewed in combination, have the most significance. My reasons follow. 245 As to the first type of prejudice, Mr Harris conceded on appeal that if the prejudice was limited to such statements, it was capable of amelioration by direction. I agree. The inadmissible statements which implicated Mr Harris were a significant body of evidence. Those statements were made by both of his co- accused, at least one of whom was, on the prosecution case, acting with Mr Harris at the time of his alleged offences. That the inadmissible statements had more than one source is an important consideration in evaluating whether the prejudice occasioned could be ameliorated by direction. However, it is a common feature of 109 McNamara v The King (2023) 280 CLR 201, [42]–[43]. -- 61 of 66 -- [2026] SASCA 46 Kimber AJA 59 a joint trial that inadmissible evidence adverse to a defendant can become known to the jury.110 In this case, the statements inadmissible in the case of Mr Harris were readily identifiable and the directions of the trial Judge were clear. In my view, if the first type of prejudice was viewed in isolation, it was amenable to the amelioration by direction essential for a fair trial. 246 As to the second type of prejudice, while not as common as the first, it is still a common feature of a joint trial that a jury must separately evaluate the credibility and reliability of a key prosecution witness considering only evidence admissible in the case of a defendant. In some cases, that has been held to be a prejudice which can be ameliorated by direction.111 In other cases, the contrary has been held.112 This demonstrates that the evaluation of whether prejudice can be ameliorated by direction is case specific. The necessary evaluation demands close attention to the evidence of the witness; the significance of the evidence of the witness in the case of the defendant; the parts of their evidence in dispute; and the extent to which the disputed parts of the evidence of the witness are supported by admissible and, most importantly, inadmissible evidence. It is only then that a view can be formed as to the degree of prejudice and whether, notwithstanding directions, the essential compartmentalisation of the evidence is too difficult for a jury. 247 In the case of Mr Harris, it was not in dispute that he arrived at the house where the alleged offences occurred very shortly after Mr Kelly. There was also no dispute that Mr Harris was then present at that house during the relevant period. In the case of Mr Harris, there was also a substantial body of admissible evidence which could support important aspects of the accounts of Mr Kelly about the nature of the attacks upon him when Mr Harris was present at the house (i.e. – injuries and relevant items found at the house). However, importantly, the admissible evidence just mentioned could not prove any offence with which Mr Harris was charged beyond a reasonable doubt. Proof of the mere presence of Mr Harris was not sufficient nor was support for the statements of Mr Kelly about being assaulted and/or about at least some of the weapons used. In the case of Mr Harris, the key issue in each of his alleged offences was what, if any, role he played. In each alleged offence, proof of that key issue relied on the statements of Mr Kelly. As S Doyle JA sets out, the inadmissible out of court statements of Ms Collins and Mr Simpson directly implicated Mr Harris in aspects of what Mr Kelly alleged had occurred. As will be seen, in my view, while both sets of statements were prejudicial, that was more so with respect to the inadmissible statements of Mr Simpson than those of Ms Collins. 248 For my part, I doubt that the admission of the statements of Mr Kelly pursuant to s 34KA of the Evidence Act 1929 (SA) and the absence of cross- 110 McNamara v The King (2023) 280 CLR 201, [42]. 111 See, eg, R v Iaria [2024] VSC 110; R v Alzuain & Ors [2025] SASC 67, [780]–[786] (suppressed). 112 See, eg, R v Bunting (No 3) [2003] SASC 251, [456]–[457]; R v Jones (1991) 55 A Crim R 159, 163– 164, 167, 180, 184. -- 62 of 66 -- [2026] SASCA 46 Kimber AJA 60 examination increased the risk of prejudice or made it less capable of amelioration by direction. The absence of oral evidence from Mr Kelly might be said to make the essential compartmentalisation of the evidence and the ‘mental gymnastics’ involved in separately assessing credibility and reliability more readily undertaken. Nevertheless, the separate compartmentalisation of the credibility and reliability of what Mr Kelly said about the role played by Mr Harris was still a difficult exercise for a jury. 249 In the case of each defendant, the difficulty is illustrated by the fact that it demanded separate evaluation for three defendants; the consideration of only admissible evidence; and the disregard of any view formed in the case of two other defendants. The difficulty is further illustrated by the fact that, in the separate cases of Ms Collins and Mr Simpson, due to their respective out of court statements, there was more admissible support for a positive view of the credibility and reliability of Mr Kelly, including support for his accounts that both had participated in at least some of the offences charged, than there was in the case of Mr Harris. In the case of Mr Harris, in contrast to his co-accused, there was no admissible out of court statement that directly supported the credibility and reliability of Mr Kelly about Mr Harris having participated in an offence charged. 250 Notwithstanding the above, if the prejudice to Mr Harris were limited to the first two types, I might not be satisfied that Mr Harris had established a miscarriage of justice. The inadmissible evidence was readily identifiable and the directions were clear. Further, for reasons to be given, the verdicts might offer some support for the jury having applied the directions about the need for separate consideration of the credibility and reliability of the statements of Mr Kelly. 251 However, there is also the third type of prejudice and, as mentioned, the three types must be considered in combination. 252 As mentioned, the joint trial of Mr Harris with Mr Simpson resulted in the jury having before it statements of Mr Simpson about serious past violence by Mr Harris, about Mr Harris picking on him and about fearing being bashed by Mr Harris, those statements being inadmissible in the case of Mr Harris. I agree with S Doyle JA that the risk of prejudice associated with that evidence was particularly significant. Important is that the inadmissible statements appear to relate to, and be based on, a previous incident capable of being characterised as one like that alleged by Mr Kelly. That is, as S Doyle JA appropriately describes, two incidents involving ‘extreme, if not unhinged, violence’. 253 Bearing in mind there was no dispute that Mr Harris was present at the house in the relevant period; the significant inadmissible support for at least some aspects of the accounts of Mr Kelly about being detained and assaulted at the house; and that the key issue in the case of Mr Harris was whether he had participated in the kidnapping and assaults with which he was charged, the third type of prejudice was significant. In short, given Mr Harris was present at the house, there was a significant risk of the jury reasoning that he was likely to have been involved in at -- 63 of 66 -- [2026] SASCA 46 Kimber AJA 61 least some of the offences alleged due to, at least in part, the inadmissible statements by Mr Simpson about the past violence of Mr Harris, him picking on Mr Simpson and causing him to fear he was going to be bashed. Put another way, there was a significant risk of the jury assuming participation and guilt or at least using the relevant statements of Mr Simpson as a makeweight. The verdicts 254 Before reaching a conclusion about whether the second and third types of prejudice resulted in a miscarriage of justice, it is appropriate to consider whether the verdicts returned by the jury weigh against that finding. 255 S Doyle JA has set out the conduct alleged in each count, the weapons used and the verdicts. The jury found Mr Harris guilty of Count 1 (Aggravated Kidnapping), Count 4 (Aggravated Causing Harm) and Count 6 (Aggravated Causing Harm) but not guilty of Counts 2, 3, 5 and 8 (each an offence of Aggravated Causing Harm). Counts 3, 4 and 6 involved Mr Kelly being torched or burned with a blowtorch, Counts 4 and 6 after a liquid was applied to him. Counts 2, 5 and 8 involved assaults other than with a blowtorch. Ms Collins was found guilty of Counts 1, 4 and 6 and not guilty of Counts 2, 3, 5 and 8. Mr Simpson was charged with Counts 5–8. He was found guilty of Counts 6 and 8 and not guilty of Count 5. In the case of all appellants, Count 7 is not relevant as no case was found. 256 In the separate cases of each appellant, the verdicts of the jury are suggestive of it not being prepared to convict without admissible support for the statements of Mr Kelly. While Mr Kelly had injuries, Count 2 involved being struck to the back of the head with a tomahawk; Count 3 involved the use of a blowtorch to the back of both his hands, his back and the hair on his head; and Count 5 involved blows to the hands with a baseball bat(s) after Mr Kelly had been asked to place his hands against a hard surface immediately before being struck. With respect to Count 2, while a tomahawk was found, the only observable injury to the head of Mr Kelly seen on medical examination was a bruise not visible to the naked eye. With respect to Count 3, the jury were told in the Summing Up that it might consider Mr Kelly’s account was not supported by the medical evidence. With respect to Count 5, no baseball bat was found like that described by Mr Kelly to commit that count and while police saw some swelling to the left hand of Mr Kelly, there was no evidence of bruising or other relevant injury to either hand. Only Mr Simpson was found guilty of Count 8, an allegation that Mr Kelly had been cut with a scalpel. In the case of Mr Staurt, there was evidence of an admission which directly supported the account of Mr Kelly that Mr Simpson had committed that offence. In contrast, there was no admissible support for Mr Harris or Ms Collins having participated in Count 8. 257 In Count 1 and bearing in mind that there was no dispute that Mr Harris and Ms Collins were both present at the house at the time of the alleged detention, Mr Kelly alleged that he was detained in the context of threats involving flick- -- 64 of 66 -- [2026] SASCA 46 Kimber AJA 62 knives and two blowtorches. A knife fitting that description and blowtorches were found. Further, that Mr Kelly had injuries also tended to support that he had been detained for a period. Count 4 involved an allegation of a burn to the arm and Count 6 involved a burn to the hip. The weapon alleged was a blowtorch. Unlike in Counts 2, 3 and 5, the injuries consistent with those the subject of Counts 4 and 6 were observed by a medical practitioner. 258 Further, the verdicts with respect to Mr Harris can be seen as consistent with the jury not using the out of court statements of Ms Collins. While her inadmissible statements tended to support that Mr Harris had ‘bashed’ Mr Kelly, Mr Harris was found not guilty of the two counts which alleged what might be characterised as a ‘bashing’ (i.e. – Counts 2 and 5). In addition, while the inadmissible statements of Ms Collins directly implicated Mr Harris in other ways, those statements did not directly support that he had kidnapped Mr Kelly (i.e. – Count 1) or that he had used a blowtorch to harm him (i.e. – Counts 4 and 6). 259 However, the statements of Mr Simpson more directly implicated Mr Harris in Counts 1, 4 and 6. In addition to what is set out by S Doyle JA, Mr Simpson said during a prison call that Mr Kelly was already detained when he arrived at the house. Bearing in mind that Mr Harris was present at the house throughout and given a kidnapping might have required the combined actions of more than one person, that inadmissible statement tended to support that Mr Harris was a participant in Count 1. As set out by S Doyle JA, Mr Simpson also said that when he arrived, it looked like Mr Kelly had been doused in petrol. That statement directly supported an aspect of what Mr Kelly had said about Count 4. In addition to what is set out by S Doyle JA, Mr Simpson also said in a prison call that it was Mr Harris who had sprayed Mr Kelly and lit him on fire. Bearing in mind that Mr Simpson was also found guilty of Count 6, that statement directly supported the involvement of Mr Harris in that count as it was capable of being interpreted by the jury as something observed by Mr Simpson after he arrived at the house. 260 It might also be considered that the not guilty verdicts with respect to Mr Harris weigh against the jury using the inadmissible statements of Mr Simpson to assume the guilt of Mr Harris or as a makeweight. Notwithstanding that there was no dispute that Mr Harris was present at the house at the time of all offences alleged, the jury found Mr Harris not guilty of Counts 2, 3, 5 and 8. 261 In short, the verdicts of the jury tend to support that it heeded the clear directions not to rely upon the inadmissible statements of Ms Collins to support the credibility and reliability of Mr Kelly in the case of Mr Harris. That then tends to support that the jury was vigilant in taking the same approach to the inadmissible out of court statements of Mr Simpson. Further, given the not guilty verdicts, the verdicts can be construed as being consistent with the jury not using the third type of prejudice to convict Mr Harris. For these reasons, I consider whether Mr Harris has established a miscarriage of justice is finely balanced. -- 65 of 66 -- [2026] SASCA 46 Kimber AJA 63 Conclusion 262 In the case of Mr Harris, there was admissible support for the account of Mr Kelly about being detained and burned to the parts of the body alleged in each of Counts 4 and 6. Nevertheless, although there was no dispute that Mr Harris was present at the house at all relevant times, there was no direct admissible support for his participation in Counts 1, 4 and 6. Notwithstanding the admirably clear directions of the trial Judge and the capacity for the verdicts to be construed in a way consistent with those directions being followed, I am satisfied that there remains a risk that the jury was influenced by the out of court statements of Mr Simpson. The inadmissible statements of Mr Simpson directly implicated Mr Harris in Counts 1, 4 and 6. Viewed in isolation, that prejudice was likely capable of amelioration by direction. More significantly, the inadmissible statements of Mr Simpson about the past conduct of Mr Harris gave rise to a significant risk of the jury assuming his participation and guilt notwithstanding the directions. When the two types of prejudice arising out of the inadmissible out of court statements of Mr Simpson are considered together, despite the verdicts tending to support that the directions were followed, I am satisfied that there was a substantial risk of that prejudice not being ameliorated by the directions of the trial Judge. 263 It follows that I agree with S Doyle JA that Mr Harris has established a miscarriage of justice. -- 66 of 66 --