GLOVER (A PSEUDONYM) v THE KING [2026] SASCA 18

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-23-013202 Appellant: GLOVER (A PSEUDONYM) Counsel: MR A PANOUSAKIS - Solicitor: TIM DIBDEN Respondent: THE KING Counsel: MS T COSTI WITH MS P YATES - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/02/2026 File No/s: SCCRM-25-017888 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. GLOVER (A PSEUDONYM) v THE KING [2026] SASCA 18 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice Stanley and the Honourable Justice B Doyle) 12 March 2026 APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - JUDGE'S SUMMING UP CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - DIRECTIONS TO JURY The appellant was found guilty of the indecent assault of a female complainant (BM) and of having committed sexual offences against another female complainant (ID) approximately one year after the indecent assault involving BM. Before the trial, the prosecution disavowed propensity reasoning as a basis upon the evidence of one complainant might be cross-admissible in respect of the charges concerning the other complainant. Instead, the prosecution contended that the complainants’ accounts contained similarities that were unlikely to have been the result of independent fabrication (‘improbability of similar account reasoning’). The appellant gave evidence at trial. He did not dispute many of the details of the complainants’ accounts, and his evidence was consistent with him having engaged in consensual interactions with each complainant. After the closing addresses, but before her summing up, the trial judge informed counsel that in circumstances where many of the similar features of the complainants’ accounts were not contentious, improbability of similar account reasoning had no part to play and that it would be withdrawn from the jury. In summing up, the judge directed the jury not to engage in improbability of similar account reasoning, or improbability reasoning of any kind. She directed the jury several times that they must consider the charges involving the complainants separately. She referred to a submission of the prosecution that the jury should not find the appellant guilty of an allegation made by a complainant unless they were satisfied beyond reasonable doubt of that complainant’s evidence. The judge gave -- 1 of 17 -- a bad person and propensity warning in respect of uncharged acts alleged by one of the complainants. The judge did not give an express direction that the jury should not use the evidence of one complainant to consider that the appellant had a propensity to engage in the kind of conduct alleged by the other complainant. The jury found the appellant guilty of the count concerning BM and two of the counts concerning ID. The jury was unable to reach a verdict on one count concerning ID. The appellant contended that: 1. the trial judge made a wrong decision on a question of law because s 34R of the Evidence Act 1929 (SA) required that she instruct the jury not to reason by reference to the evidence of one complainant that the appellant was more likely to have committed the alleged offending against the other complainant, because he had a propensity to engage in opportunistic sexual assault of the kind alleged in each case; and 2. alternatively, if such a direction was not required by s 34R, the failure to give such a direction occasioned a miscarriage of justice. Held, granting leave to appeal and an extension of time, but dismissing the appeal: 1. the judge ruled that the evidence of the complainants was not cross-admissible and directed the jury accordingly. There was no relevant evidence of discreditable conduct admitted under s 34P and, accordingly, s 34R was not engaged; 2. whilst it will often be necessary to direct a jury not to engage in propensity reasoning where multiple complainants allege sexual offending, the risk of propensity or tendency reasoning is not present in every case to the same extent, and the extent of the risk will depend upon the issues presented by the parties and the other directions given by the trial judge. There was no perceptible risk in the present case that the jury would use propensity reasoning to reason to guilt on any of the counts. Evidence Act 1929 (SA) ss 34O, 34P, 34R; Criminal Procedure Act 1921 (SA) ss 157(1), 158(1), 165(2); Criminal Law Consolidation Act 1935 (SA) ss 48(1), 48A(1), 56, referred to. Donald (a pseudonym) v The King [2024] SASCA 124; Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531, applied. Adamson (a pseudonym) v The King [2024] SASCA 91; Bell v The King [2025] SASCA 97; BRS v The Queen (1997) 191 CLR 275; Collins v The Queen [2020] SASCFC 96; De Silva v The Queen (2019) 268 CLR 57; Eddy (a pseudonym) v The King [2024] SASCA 115; Hughes v The Queen (2017) 263 CLR 338; JGS v The Queen [2020] SASCFC 48; Kane (a pseudonym) v The King [2024] SASCA 70; KRM v The Queen (2001) 206 CLR 221; Perera-Cathcart v The Queen (2017) 260 CLR 595; Phillips v The Queen (2006) 225 CLR 303; R v C, CA [2013] SASCFC 137; R v Dhir (2019) 133 SASR 452; R v Forrest (2016) 125 SASR 319; R v Golubovic [2016] SASCFC 144; R v Jones (2018) 131 SASR 532; R v Murray (1987) 11 NSWLR 12; R v Singh [2019] SASCFC 51; R v Tran [2017] SASCFC 99; Rezaei v The King [2024] SASCA 150, considered. -- 2 of 17 -- GLOVER (A PSEUDONYM) v THE KING [2026] SASCA 18 Court of Appeal – Criminal: Bleby, Stanley and B Doyle JJA 1 THE COURT: The appellant was found guilty of the indecent assault of a female complainant (BM) and of having committed sexual offences against another female complainant (ID) approximately one year after the indecent assault involving BM. 2 On each occasion, the conduct was alleged to have occurred in a car on the way home from a dance event attended by the appellant and the complainant. The appellant did not dispute that there had been a sexual interaction on each occasion, although particular aspects of the conduct described by the complainants were disputed. The appellant disputed that any non-consensual conduct occurred. 3 In closing address, the prosecution contended that, there being no suggestion of an opportunity for collusion between the complainants, it was improbable that they would independently have fabricated accounts which shared such similarities. Use of the evidence in that way had been foreshadowed before the trial. 4 However, reflecting on the fact that the appellant had given evidence which rendered non-contentious many of the features of the complainants’ accounts that were said to be similar, the trial judge considered that improbability reasoning of the kind invited by the prosecution was unavailable. The trial judge informed the parties that she would withdraw that use from the jury’s consideration. 5 In her summing up to the jury, the trial judge explained that despite what they had heard in addresses, there was no work for improbability reasoning to do in this case and that they must consider the charges separately. The jury was told that when considering the counts concerning one complainant, they must not have regard to the charge concerning the other complainant. This requirement to consider the evidence concerning the offences separately was repeated a number of times. No complaint was made by the appellant’s trial counsel about any aspect of the summing up. 6 The issue raised by the appeal is whether the trial judge made a wrong decision on a question of law1 by reason that s 34R of the Evidence Act 1929 (SA) required the judge to direct the jury not to engage in propensity reasoning, being an impermissible use of the evidence. Alternatively, the appellant contends that the judge’s omission specifically to direct against propensity reasoning occasioned a miscarriage of justice.2 7 For the reasons that follow, s 34R was not engaged in this case. The judge was nevertheless obliged to direct the jury that the evidence of one complainant 1 Criminal Procedure Act 1921 (SA) (‘CPA’), s 158(1)(b). 2 CPA, s 158(1)(c). -- 3 of 17 -- [2026] SASCA 18 The Court 2 was not admissible in proof of the offending alleged by the other. The directions satisfied that requirement. Whilst in some cases, a more particular direction not to engage in propensity or tendency reasoning may be required to avoid a miscarriage of justice, in the present case, having regard to the conduct of the case and the nature of the forensic issues, the directions given by the judge were sufficient to guard against there being a real risk of the jury using propensity reasoning to find the appellant guilty of any of the counts. 8 An extension of time within which to bring the appeal3 and, to the extent necessary, leave to appeal,4 should be granted, but the appeal must be dismissed. Background 9 The appellant was charged on Information with having committed sexual offences against six female complainants. The appellant was an instructor at a dance studio. The complainants were students or instructors associated with the studio. 10 The prosecution filed a Notice of Intention to Adduce Discreditable Conduct Evidence pursuant to s 34P(4) of the Evidence Act. That notice foreshadowed a contention that the evidence of the various complainants disclosed a willingness to act on a sexual interest in female students and instructors when the opportunity arose in circumstances involving a breach of trust and notwithstanding a risk of detection. 11 The appellant made an application for separate trials. The prosecution did not oppose the ordering of separate trials of some of the counts but maintained that the counts concerning ID, BM and a third complainant, CV, should proceed together. In written submissions, the prosecution contended that the evidence respecting each of those three complainants was cross-admissible for non- propensity purposes pursuant to s 34P(2)(a). In particular, ‘improbability of similar account’ reasoning was relied upon. The prosecution disavowed reliance upon the propensity reasoning foreshadowed by its earlier notice. 12 Ultimately, the appellant did not press an application that there be separate trials of the counts respecting CV, ID and BM. The Court directed that a trial of those counts proceed before any other counts on the Information. The course of the trial 13 Prior to the empanelment of the jury, the prosecutor entered, and the Court noted, a nolle prosequi with respect to the counts on the Information involving the complainant CV. The trial was therefore limited to the counts concerning BM and ID. 3 CPA, s 165(2). 4 CPA, s 157(1)(a)(ii). -- 4 of 17 -- [2026] SASCA 18 The Court 3 14 The appellant was alleged to have indecently assaulted BM in the early hours of 26 February 2017 by grabbing her arm in an effort to place it on his exposed penis.5 The offending involving ID was alleged to have occurred on 27 January 2018. Two counts of rape were alleged, the first involving digital penetration, the second involving cunnilingus.6 A third count alleged compelled sexual self- manipulation.7 15 BM gave evidence she began dancing at the studio where the appellant worked in 2017 and sometimes attended his classes. On 25 February 2017, she attended an event associated with the studio at the Governor Hindmarsh Hotel. Although she did not interact with the appellant during the night, she went with a group to a pizzeria on Rundle Street afterwards and the appellant was present. At about 4 am, the studio’s owner asked BM if she could drive the appellant and another member of the group home. BM had not been drinking. The appellant was the last to be dropped off, at the appellant’s suggestion or insistence. He was directing her where to drive and suddenly requested that she pull over on a street with a dark reserve on one side. He told her to turn the car off, which she did, and he then exposed himself and urged her to look at his penis. She was looking away but he grabbed her left hand and put it on his erect penis. She pulled away after a few moments. His demeanour changed. 16 ID was also a student at the dance studio. She did not have much to do with the appellant at the studio. At an event at the Governor Hindmarsh Hotel on 27 January 2018, she noticed the appellant watching her and he later asked for her number, which she provided. As she was getting ready to leave, he telephoned her and asked if she could drop him home. He said he only lived five to 10 minutes away. She agreed. ID’s evidence was that he started flirting in the car, saying she looked like his ex-girlfriend and that sex was best with short girls (she was short). The appellant complimented her dancing. She pulled over at the location requested, and, as he was about to get out of the car, she said ‘You don’t even say thank you’. With that he closed the door, and to her surprise, leaned across and kissed her on the lips. She put her hands on his chest to push him away and asked what he was doing. He said ‘kiss me’ in Spanish. She was pushing him off her but he was forceful with the kiss. He started to touch her on the breasts and progressively started sliding his hands under her underwear, touching her vagina. She said in evidence he was applying a lot of strength and doing it in a way as if he had expected her to respond positively. 17 ID’s evidence was that the appellant then took his penis out of his pants and grabbed her forearm, in an attempt to make her right hand touch his penis. She did not want to do so and was pulling her hand back. She eventually pulled her hand back and wiped her hand on her clothes, as she said she felt pre-ejaculate. After she pulled her hand back, he kept touching her breast and vagina. He then 5 Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), s 56; count 9 on the Information, count 4 on the ‘dummy information’ provided to the jury. 6 CLCA, s 48(1); counts 6 and 7 on the Information, counts 1 and 2 on the ‘dummy information’. 7 CLCA, s 48A(1); count 8 on the Information, count 3 on the ‘dummy information’. -- 5 of 17 -- [2026] SASCA 18 The Court 4 requested that she move her seat back so that he could come on to her side of the car. ID said she complied with this because she viewed it as a demand. He moved into the driver’s side in-between her legs and was facing her. He pulled down her top and sucked on her nipples. He tried to take her shorts off but was unable to do so. He requested that she take them off. She removed her shorts and her underwear halfway. 18 On ID’s account the appellant then licked her vagina and he inserted two fingers in her vagina. After that he tried to insert his penis inside her vagina and she held it and said ‘No, no, no, no’. After a short while he jumped back to the passenger seat, but while she was putting her shorts back on he told her to expose her vagina while he masturbated. Hoping that this would mean he would not penetrate her, she complied. He ejaculated, zipped up his pants and left. 19 The appellant gave evidence. 20 In respect of the events of February 2017, whilst he had no recollection of going to the pizzeria, he agreed that BM dropped another person and then him home. They discussed the night and the performance and she made comments about his wife (on his account, she had earlier in the night said his wife was lucky to have him in her life). He asked her if she wanted to keep talking and they stopped at a reserve where they talked for 15 to 20 minutes. She said ‘You would not look at a girl like me’, and at some point he asked if he could kiss her. They both leaned in for a kiss and he said ‘You are a good kisser’. He put his hands on her ribs; she pushed against him; her hand was trying to get into his pants. BM unzipped his pants and he put his hand inside her pants. He touched her vagina. BM asked whether he had a condom. He did not, but he said they could still have some fun and they continued with consensual sexual activity for 10 to 15 minutes. 21 In relation to ID, the appellant said they had met at a social event. She had playfully touched him on the bottom and thigh at times. On the night of the allegations, he said they had a short conversation. He did not ask for or take her phone number. Later when people were leaving she came up behind him and said ‘Where is the after party?’. She asked him whether he was going to a party or to see another girl; he said he was not. They went towards the car and she was engaging in conduct he interpreted as flirtatious. 22 The appellant said the car stopped about 60 metres from his home and they continued flirting. He leaned in towards the driver’s seat and they started kissing. ID moved to the passenger seat and sat on top of him. They engaged in mutual sexual contact. After a few seconds, ID asked if they were going to be boyfriend and girlfriend and he pointed to his ring saying they could not be. She then got back into the driver’s seat and he got out of the car. 23 In his closing address, the prosecutor invited the jury to consider the improbability that the two complainants fabricated similar accounts of the appellant’s conduct. The prosecutor asked rhetorically, how could these two -- 6 of 17 -- [2026] SASCA 18 The Court 5 women conjure up these things independently of one another? He submitted that that was improbable and, if that was the case, it suggested they were telling the truth. 24 This was an appeal to ‘improbability of similar account’ reasoning. The nature of that reasoning, and the difference between it and propensity reasoning, was addressed in Eddy (a pseudonym) v The King.8 Where the details of multiple complainants’ accounts share features which are unlikely to have been independently fabricated, the probative value of the evidence may outweigh its prejudicial effect, warranting its cross-admissibility within the framework of s 34P of the Evidence Act. In cases where collusion or innocent contamination between the complainants can be excluded, the evidence can be very powerful. 25 When evidence is used in this way, it does not rely upon, though it may incidentally reveal, a propensity.9 Of course, in some cases, the evidence may also qualify for admission on the basis that it strongly demonstrates a propensity which, if established, has a material bearing on the likelihood of guilt.10 It has been observed, however, that relying both on improbability of similar account and propensity reasoning can introduce complexities and risks that are undesirable.11 26 In the present case, the prosecutor made no appeal to propensity reasoning, and the appellant accepts on appeal that if and to the extent that a jury may have been minded to engage in reasoning of that kind, it was by virtue of the inherent features of the evidence, rather than the conduct of the prosecution. 27 Amongst the other points made in the closing address by the appellant’s counsel was the submission that in circumstances where the appellant did not dispute a number of the shared features of the two complainants’ accounts, the improbability of independent fabrication submission was not persuasive. He also invited the jury to consider the inherent plausibility of ID’s account that the appellant was able to position himself so as to engage in cunnilingus whilst she sat in the driver’s seat. 28 Before the trial judge embarked upon her summing up, the judge expressed the view, in the absence of the jury, that in circumstances where a number of details of the complainants’ accounts were not in issue, improbability reasoning had no part to play and, if left to the jury, may carry the risk that it may be wrongly used. The prosecutor submitted that there remained disputed elements of their accounts that were similar (and unlikely to have been independently fabricated), but the judge was against the prosecutor and indicated she was ‘not going to leave [improbability reasoning] to them in the circumstances of this case’. 8 [2024] SASCA 115. 9 [2024] SASCA 115 at [87] (Bleby and David JJA, B Doyle AJA). 10 [2024] SASCA 115 at [134] (Bleby and David JJA, B Doyle AJA). 11 [2024] SASCA 115 at [135]-[137] (Bleby and David JJA, B Doyle AJA). -- 7 of 17 -- [2026] SASCA 18 The Court 6 The judge’s summing up 29 After making a number of introductory remarks and giving the jury a number of general directions in conventional terms, the judge referred to the fact that the jury had heard from counsel about ‘improbability reasoning’. She went on to say that in light of the common ground between the evidence of the complainants and the appellant, there was ‘no work for improbability reasoning to do in relation to this case’. 30 The judge went on to say: Improbability reasoning cannot be used by you to resolve any issue in relation to consent, or in relation to the accused's state of mind. It is for this reason that you must then consider the charges separately. … So as I was saying to you, because there is no improbability reasoning to engage in in this case, when you come to consider the charges, you look at the charges separately. When you come to consider the charges in relation to [ID], being two counts of rape and one count of compelled sexual manipulation, you do not have regard to the charge of indecent assault that has been laid in relation to [BM]. Similarly, when you come to consider the charge in relation to [BM], you do not have regard to the evidence in relation to the charges of [ID]. It becomes very important that you consider the evidence in relation to these cases quite separately. The evidence in relation to what was called 'improbability reasoning' could never have affected the issues in relation to consent, or the issues in relation to the accused's state of mind. So I tell you that you must not engage in any form of improbability reasoning in this case. You must look at the charges in relation to the complainants quite separately and deal with the evidence that is admissible in relation to those charges on their own merits. As I have said, each of the four counts is a separate charge and they must be treated separately upon its merits. When you come to return your verdicts, you will be asked successively in relation to each of the counts whether you find the accused guilty or not guilty of that charge. It does not follow that where an accused is charged with more than one count, simply that because you may be satisfied of guilt of one offence, that the accused is necessarily guilty of any other charge. The charges do not stand or fall together. Because there are separate charges on the information, it becomes very important to take special care to see that the method by which the guilt of the accused is considered in relation to a particular charge is established by only considering the evidence that is offered in relation to that charge and not the evidence in relation to the information as a whole, except to the extent that the evidence indicates the general relevant background, context and sequence of events. As I have said, you must consider the charges in relation to [BM] and [ID] quite separately. -- 8 of 17 -- [2026] SASCA 18 The Court 7 31 The judge then instructed the jury about the elements of the counts and the evidence relevant to them, emphasising on two further occasions the need for the jury to consider each count separately, before turning to some specific matters arising from the evidence. One of those was that ID had described sexual contact between the appellant and her which immediately preceded the charged acts. The judge gave directions about the limited use that could be given to that evidence. She said: If you accept this evidence, then it can help you to understand and to assess the direct evidence of the charged acts. In particular, you can use this evidence to show that [ID] is not saying that the charged act came completely out of the blue. There was a lead-up to it that was as I have explained to you. If you did not have this other evidence as to what had occurred prior to the charged act, you might think it implausible that the accused had performed an act of digital intercourse and then the act of cunnilingus upon her with no lead-up. It may also help you to understand how it was that the complainant felt she was compelled to act in the way that she did as the accused had committed these other acts upon her and behaved in the way that he did towards her. It may also help you to understand the issues of consent and the accused's state of mind as they arise in relation to the charged acts. These are the only ways that you may use this evidence. You may not use it for any other purpose. In particular, you must not use the evidence to reason simplistically that because the accused did these things to her, he is a bad person and therefore the sort of person who is likely to have committed the charged acts. Reasoning in this way would be wrong and unfair. You must also not allow the evidence of the uncharged acts to distract you from the need to consider whether the prosecution have proved each of the charges beyond reasonable doubt. You cannot reason that the accused has done something similar in the uncharged acts so that would be enough to prove that he committed the charged offences. Again, that sort of reasoning is wrong and unfair. 32 Later in the summing up, echoing a submission attributed to the prosecution, the judge again instructed the jury that they needed to look at the cases separately and that they needed to be satisfied beyond reasonable doubt of the evidence of a particular complainant before they might convict in respect of counts relating to that complainant. 33 After completing her summing up, the trial judge gave counsel an opportunity to raise any concerns. Neither counsel raised a concern. 34 The jury returned majority verdicts of guilty in relation to two of the three counts respecting ID. They were unable to reach a verdict in relation to the count that involved cunnilingus. The jury found the appellant guilty of the indecent assault of BM. The appeal grounds 35 Shortly stated, the appellant’s two grounds of appeal are that: (1) the trial judge made a wrong decision on a question of law because s 34R of the Evidence Act required that she instruct the jury not to reason by reference to the evidence of one complainant that the appellant was more likely to have -- 9 of 17 -- [2026] SASCA 18 The Court 8 committed the alleged offending against the other complainant, because he had a propensity to engage in opportunistic sexual assault of the kind alleged in each case; and (2) alternatively, if such a direction was not required by s 34R, the failure to give such a direction occasioned a miscarriage of justice. Section 34R of the Evidence Act 36 Section 34R requires that, if evidence is admitted under s 34P, the judge must identify and explain the purpose for which the evidence may, and may not, be used. 37 It has been accepted that in a trial involving multiple complainants, the secondary use of evidence of offending against one complainant in connection with charged conduct involving another complainant attracts the application of s 34P.12 Further, it has been accepted that where discreditable conduct comes in ‘by consent’ without any ruling being made on its admissibility pursuant to s 34P it would involve too literal an approach to the introductory words to s 34R to say that no directions were required because the evidence was not ‘admitted under’ s 34P.13 38 However, it has also been held that where, in a trial by judge alone, a judge receives but ultimately rules evidence of discreditable conduct to be inadmissible, s 34R is not engaged. In such a case, the evidence has not been admitted under s 34P.14 That reasoning is consistent not only with the text, but with the evident purpose, of s 34R. Section 34R takes as its premise that the discreditable conduct evidence is available to be considered by the judge or jury (as the case may be) for some identified purpose or purposes. It recognises the desirability, in such a case, of an identification not only of the identified purposes, but of those purposes or uses which are forbidden. As is recognised by s 34P(3), keeping the permissible and impermissible uses separate can sometimes be difficult, even for experienced lawyers. Section 34R requires that the trier of fact be directed (or direct themselves) in a way that will avoid misuse. It does this by requiring an identification not only of the permissible use or uses but of the impermissible use or uses, albeit it is not prescriptive as to how that is done. Section 34R is not concerned, in terms, with the prejudice caused by evidence or material that is never admitted into evidence, and is therefore not available for use at all. 39 The position is more complicated where evidence is admitted because it forms part of the actus reus of charged offending, but is ruled inadmissible with respect to other counts or charges. In such a case, on a textual approach, evidence 12 Eddy (a pseudonym) v The King [2024] SASCA 115 at [63] (Bleby and David JJA, B Doyle AJA), Collins v The Queen [2020] SASCFC 96 at [144] (Blue J, Peek and Stanley JJ agreeing). 13 Kane (a pseudonym) v The King [2024] SASCA 70 at [60]-[63] (Doyle JA, David JA agreeing), R v Jones (2018) 131 SASR 532 at [28] (Nicholson J, Kourakis CJ and Hinton J agreeing). 14 Donald (a pseudonym) v The King [2024] SASCA 124 at [120] (Doyle JA, McDonald and Hall AJJA). -- 10 of 17 -- [2026] SASCA 18 The Court 9 will not have been admitted within the framework of s 34P.15 On the other hand, the dangers of misuse may remain. 40 However, to conclude that s 34R does not require warnings to be given about evidence which is received as part of the actus reus concerning one count but is inadmissible with respect to other counts does not mean that no directions are required. Outside the field of the section’s operation, the ordinary obligations of a trial judge remain. Where there is any prospect that a jury might entertain using (or be influenced by) evidence that is admissible in respect of one count in their consideration of another count in respect of which it is inadmissible, it is ordinarily necessary for the jury to be directed that the evidence is not admissible and is not able to be considered in respect of the other counts. That obligation arises as an aspect of the judge’s overarching obligation to explain such of the law as is relevant to the jury’s determination of the issues. More explicit directions may be necessary to avoid a perceptible risk of a miscarriage of justice in a particular case. 41 The mandatory obligation arising pursuant to s 34R is only attracted where evidence of discreditable conduct (not being the ‘conduct constituting the offence’) has some permissible use with respect to a particular charged offence. It is in those circumstances that the legislature has seen fit to bolster the requirements supplied by the common law by mandating an identification and explanation of both the permissible and impermissible use of the evidence.16 42 Whilst not formally expressed as such, the judge’s statement to counsel after addresses and prior to the summing up comprised a ruling that the evidence was not cross-admissible as between the complainants, with the consequence that s 34R was not engaged. 43 It remains necessary, however, to consider whether there was nevertheless a miscarriage of justice by reason that the judge did not specifically direct the jury not to engage in propensity or tendency reasoning. It is also convenient to consider whether, even if s 34R was engaged, it required a more explicit direction in this case than was given. Warnings against propensity or tendency reasoning 44 When it is engaged, the directions required to ensure compliance with s 34R will depend upon the circumstances of and real issues in the case.17 The authorities show that regard may be had to the forensic issues in the case, the addresses by the prosecution and defence, and the uses likely to be contemplated by the jury.18 15 Evidence Act, ss 34O and 34P. 16 See, eg, JGS v The Queen [2020] SASCFC 48 at [97] (Lovell J, Peek and Bampton JJ agreeing). 17 Perera-Cathcart v The Queen (2017) 260 CLR 595 at [53], [62], [66] (Kiefel, Bell and Keane JJ). 18 R v Golubovic [2016] SASCFC 144 at [80] (Blue J, Nicholson and Doyle JJ agreeing), R v Tran [2017] SASCFC 99 at [163] (Doyle J), R v Singh [2019] SASCFC 51 at [53] (Doyle J, Peek and Parker JJ agreeing), Adamson (a pseudonym) v The King [2024] SASCA 91 at [53]-[54] (Lovell, Doyle and Bleby JJA). -- 11 of 17 -- [2026] SASCA 18 The Court 10 45 A practical and holistic approach is also appropriate. So, for instance, where clear directions about the impermissible use of uncharged acts are given, there may be no reason to apprehend that the jury would not understand the same approach to be required in respect of the use of evidence concerning one count in relation to proof of another count, at least where clear separate consideration directions are also given.19 In other cases, where the evidence may permissibly be used for non- propensity purposes that are not articulated with sufficient clarity, a separate consideration direction will be inadequate to warn against propensity or tendency reasoning.20 The more clearly the permissible use can be identified, the less painstakingly may the impermissible uses need to be canvassed. The purpose of s 34R is to ensure the clear communication of the proper limits of evidence admitted under s 34P, not to require a ritual recitation and treatment of all conceivable uses. 46 It may be accepted, as the appellant’s counsel submitted, that multiple complainant cases raise additional issues, and may present a heightened risk of impermissible and prejudicial reasoning, than do single complainant cases.21 That is because greater antipathy can be generated by a jury seeing multiple complainants give evidence, and because where multiple complainants are concerned, a jury may choose to first consider the count which is most strongly supported by the evidence and, if satisfied of guilt, deploy a propensity revealed by that conduct to resolve a doubt arising on the other counts. But in deciding whether particular impermissible uses must be specifically warned against, either for the purposes of complying with s 34R, or in order to avoid a miscarriage of justice, it remains necessary to focus upon the issues in the case and the forensic conduct of the case. 47 In seeking to demonstrate the necessity of a direction against propensity reasoning in multiple complainant cases, the appellant relied upon the observations of McHugh J in BRS v The Queen22 (‘BRS’) and KRM v The Queen23 (‘KRM’). 48 In BRS, McHugh J said that criminal courts take it as axiomatic that where the evidence reveals the criminal convictions or propensity of an accused, there is a real risk that the jury will reason towards guilt by using the conviction or propensity. But he immediately added that it does not follow that the failure to give a direction as to the use the jury can make of the evidence always constitutes a miscarriage of justice.24 19 Rezaei v The King [2024] SASCA 150 at [52], [61] (Bleby and Stanley JJA, B Doyle AJA), R v Dhir (2019) 133 SASR 452 at [54] (Kourakis CJ, Stanley and Doyle JJ agreeing). 20 R v Golubovic [2016] SASCFC 144 at [69]-[70], [80], [86]-[87] (Blue J, Nicholson and Doyle JJ agreeing), Bell v The King [2025] SASCA 97 at [299] (S Doyle and David JJA). 21 Rezaei v The King [20204] SASCA 150 at [61] (Bleby and Stanley JJA, B Doyle AJA), R v C, CA [2013] SASCFC 137 at [61] (Kourakis CJ). 22 (1997) 191 CLR 275. 23 (2001) 206 CLR 221. 24 (1997) 191 CLR 275 at 308. -- 12 of 17 -- [2026] SASCA 18 The Court 11 49 In that case, the evidence potentially disclosing a propensity was evidence of an uncharged act against another young male. The prosecutor had urged reliance upon the evidence as corroborating a factual aspect of the alleged offending and as rebutting the suggestion of good character raised by the appellant in cross- examination. Whilst the judge in summing up made no reference to the evidence in question at all, it was not difficult to see that in circumstances where it was on the cards that some use was able to be given to the evidence in connection with the charged offending, a failure to warn against propensity or ‘bad man’ reasoning carried the risk that the jury might reason to guilt partly in reliance on such reasoning. In the present case, the jury was directed that the evidence of each complainant had no role to play in proof of the counts involving the other complainant. In BRS, the jury had been left without guidance one way or the other. 50 In KRM, McHugh J observed that where an accused is charged with multiple counts of similar offending concerning a single victim, it will not usually be necessary to give a direction against propensity reasoning; a separate consideration direction will suffice. He went on to say:25 In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts. Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice. But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together outweighs any risk of prejudice or, more usually, because a separate trial is not sought. If that occurs, a propensity warning will almost certainly be required. 51 Whilst supportive of the proposition that propensity warnings or anti- tendency directions will often, even usually, be required in cases involving multiple complainants (at least, where the requirements of s 34P(2)(b) have not been satisfied), McHugh J’s observation does not go so far as to suggest that a warning will always be required. 52 As the majority said in Hamilton (a pseudonym) v The Queen26 (‘Hamilton’): … the authorities, including KRM v The Queen, simply do not support the absolute proposition that a failure to give an anti-tendency direction in such circumstances always constitutes a miscarriage of justice. 25 (2001) 206 CLR 221 at [38]. 26 (2021) 274 CLR 531 at [42] (Kiefel CJ, Keane and Steward JJ) (citations omitted). -- 13 of 17 -- [2026] SASCA 18 The Court 12 53 The majority in Hamilton went on to emphasise that the risk of tendency reasoning is not present in every case to the same extent; rather, the extent of the risk will depend upon the issues presented by the parties and the other directions given by the trial judge.27 By way of example, they posited that the danger of a jury engaging in propensity reasoning might be higher where the issue is as to the identity of the offender and the evidence of identification is circumstantial.28 54 In Hamilton, the alleged offending was against three of the appellant’s five children. There was no question of identity. The defence case involved a positive hypothesis that the complaints were fabricated at the urging of their mother, the appellant’s former wife. The majority placed emphasis on the fact that: (1) the prosecution did not by its conduct of the case invite propensity reasoning; and (2) the judge gave separate consideration directions coupled with a direction to the effect that the jury could convict in respect of a count only if they were satisfied beyond reasonable doubt as to the reliability of the evidence of the complainant in respect of that count (a ‘Murray direction’29). Further, their Honours emphasised that whilst a failure of counsel to seek a direction is not determinative against successful challenge in a case in which a direction is required to avoid a perceptible risk of a miscarriage of justice, the absence of an application for such a direction may tend against a finding that such a risk was present.30 As in the present case, there had been no such application in Hamilton. 55 In reaching a different view on the ultimate issue, the minority judges considered that the nature of the particular charges (allegations of sexual abuse of three of the appellant’s own children) exacerbated the risk of the use of propensity reasoning.31 As well, their Honours perceived weaknesses in the articulation of the separate consideration direction and the Murray direction. As to the former, the jury was instructed to consider each count separately but they were not told they must consider each count only by reference to the evidence that applied to the count.32 As to the latter, the direction was given in a global fashion (the jury were told they should not convict unless ‘satisfied beyond a reasonable doubt that [the first child], [the third child], and [the fifth child] are both honest and accurate witnesses in the accounts that they have given you’). The minority judges were concerned that formulation might leave open a collective consideration of the complainants’ credibility and reliability.33 Consideration 56 Returning to this case, a number of matters should be noted. 27 (2021) 274 CLR 531 at [43] (Kiefel CJ, Keane and Steward JJ). 28 (2021) 274 CLR 531 at [44] (Kiefel CJ, Keane and Steward JJ). 29 R v Murray (1987) 11 NSWLR 12. 30 (2021) 274 CLR 531 at [54] (Kiefel CJ, Keane and Steward JJ), referring to De Silva v The Queen (2019) 268 CLR 57 at [35] (Gageler and Gordon JJ). 31 (2021) 274 CLR 531 at [69], [71] (Edelman and Gleeson JJ). 32 (2021) 274 CLR 531 at [72] (Edelman and Gleeson JJ). 33 (2021) 274 CLR 531 at [74]-[75] (Edelman and Gleeson JJ). -- 14 of 17 -- [2026] SASCA 18 The Court 13 57 First, the alleged offending, whilst undoubtedly very serious, did not involve paedophilia or violence against a child. In cases where the allegations are so foreign to the ordinary experience of a jury, evidence that an accused is alleged to have acted in that way on another occasion may take on a significant role in overcoming the doubt the jury might otherwise entertain that a person would commit the alleged offending. Indeed, in some cases, that may give the evidence a probative force that justifies its admission for propensity purposes.34 But where the evidence has not qualified as admission for that purpose, the need for a warning may be heightened. That is all the more so where the conduct is of a kind which is likely to engender particular disgust or antipathy. None of this is to suggest that the allegations in this case did not involve conduct which, if committed with the alleged state of mind, was abhorrent and serious. It is simply to recognise that there is a spectrum upon which allegations more likely to excite impermissible reasoning exist. 58 Secondly, and relatedly, there were numerous issues in the case in respect of each count. Insofar as the physical acts were disputed, the jury had to be satisfied those acts occurred. The jury had to be satisfied that the complainant did not consent to sexual contact of the kind they described. And in each case, they had to be satisfied the appellant knew of, or was recklessly indifferent about, the absence of consent. Propensity reasoning was only likely to be relevant to the last of those issues; it is unlikely to be deployed as to the absence of consent.35 It therefore did not have the likely prominence or centrality that it might have in a case where there was a complete denial of any sexual interaction, or where the only issue was identification. 59 Those observations having been made, it can be accepted that, in the nature of the two accounts, there was at least a possibility that, subject to the conduct of the case, a jury given inadequate instruction might engage in propensity or tendency reasoning. 60 In this context it is important to observe that at no stage did the prosecution invite propensity or tendency reasoning by its conduct of the case. Whilst, consistent with the pre-trial history of the matter, the prosecution’s closing address invited improbability of similar account reasoning, the judge withdrew that reasoning from the jury and, for good measure, directed the jury not to engage in improbability reasoning of any kind. 61 That direction simplified the jury’s task. Had improbability of similar account reasoning been left to the jury, the risk of potential confusion about its limits would very likely have required a specific anti-propensity or anti-tendency direction. But the jury was told repeatedly (in the context of an appropriately concise summing up) that they must confine their consideration to the evidence relevant to each count. The evidence relevant to each count was in a relatively 34 cf. Hughes v The Queen (2017) 263 CLR 338 at [60] (Kiefel CJ, Bell, Keane and Edelman JJ). 35 cf. Phillips v The Queen (2006) 225 CLR 303. -- 15 of 17 -- [2026] SASCA 18 The Court 14 narrow compass and there was no risk that the jury would be left unsure what was meant by that direction. 62 There are three further important features of the summing up. First, as noted earlier, the jury was directed against bad person and propensity reasoning in respect of the uncharged acts. They were told reasoning of that kind was wrong and unfair. Secondly, the jury was told that they had to analyse each complainant’s evidence separately and consider whether they could accept it beyond reasonable doubt before they could find the appellant guilty on the count under consideration. That was a kind of Murray direction that guarded against propensity reasoning acting as a make-weight in respect of the evidence (or part of the evidence) of a complainant about which the jury was otherwise entertaining a reasonable doubt. The formulation of those directions was not susceptible to the criticisms made by the minority in Hamilton. Thirdly, as earlier explained, the judge emphasised to the jury that the charges did not stand or fall together and that it did not follow that where an accused is charged with more than one count, satisfaction of guilt of one offence makes the accused guilty of any other charge. The fact that the jury did not reach a verdict on one of the counts may tend to reinforce that these instructions were followed. 63 The appellant pointed out that a direction of the third kind mentioned above may sometimes fall short, instancing the observations of Kourakis CJ in R v Forrest.36 It was considered necessary in that case specifically to direct the jury against treating a finding in respect of other discreditable conduct as making it more likely that the accused was guilty of charged conduct. But that was in circumstances where: (1) the evidence of discreditable conduct did have a nuanced, but not properly explained, permissible use; and (2) the prosecution had urged the jury to treat the evidence as showing that the accused was the kind of person who might act in the way alleged.37 Neither of those features is present here. 64 Standing back and considering the issues the jury had to decide, the inherent likelihood that they would consider engaging in propensity reasoning, the conduct of the prosecution, and the directions given by the judge as a whole, we are not persuaded that there remained a real risk that the jury would use propensity reasoning to reason to guilt on any of the counts. The judge clearly stated that the evidence of one complainant could not be used in any way in respect of another complainant and that the jury should not convict in respect of a count concerning a complainant unless the jury was satisfied beyond reasonable doubt that that complainant’s evidence was relevantly credible and reliable. 65 In those circumstances, there was no omission or defect in the summing up that occasioned a miscarriage of justice. Further, even if s 34R was engaged, it did not require more in this case. The purpose to be served by the requirement that the permissible and impermissible uses be identified and explained was achieved. 36 (2016) 125 SASR 319. 37 (2016) 125 SASR 319 at [46], [47] (Kourakis CJ, Kelly and Lovell JJ agreeing). -- 16 of 17 -- [2026] SASCA 18 The Court 15 That is because it was made clear the evidence of one complainant was not relevant at all to how the jury might approach their consideration of the evidence of the other, and because the jury was (albeit in a different context) told that propensity or bad person reasoning was unfair and wrong. 66 It is conceivable that to have introduced the spectre of propensity reasoning for the first time at the end of the case, only to dismiss it, might have operated to the disadvantage of the appellant. At all events, it is sufficient to conclude that such a direction was not required by s 34R, nor necessary to avoid a miscarriage of justice. The circumstance that the appellant’s counsel did not request any further or additional direction is consistent with that assessment, but it is not critical to it. Disposition 67 The appeal must be dismissed. -- 17 of 17 --