RAAN MARLEY KOUL WAWU v THE KING [2026] SASCA 41

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE WHITE) DCCRM-24-001495 Appellant: RAAN MARLEY KOUL WAWU Counsel: MS M BARNES WITH MS R LANE - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MS A CAIRNEY WITH MS B FERGUSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 11/03/2026 File No/s: SCCRM-25-024982 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. WAWU v THE KING [2026] SASCA 41 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David) 23 April 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE 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 - IMPROPER ADMISSION Appeal against conviction. Following a trial by jury, the appellant was convicted of one count of aggravated recklessly causing serious harm contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that the appellant and his co-accused assaulted the victim, Mr Panchol, at a social gathering in a reserve in Kilburn, causing Mr Panchol several significant injuries. The appellant raises five grounds of appeal, each relating to the evidence of two witnesses, Ms Yuot and Ms Tong. The appellant complains that: -- 1 of 28 -- 1. the judge erred in admitting Ms Yuot’s evidence pursuant to s 34KA of the Evidence Act 1929 (SA) (Ground 1A); 2. the trial miscarried by reason of Ms Tong giving prejudicial evidence about the appellant’s involvement in a different, uncharged assault (Ground 2); 3. the judge erred in declaring Ms Tong a hostile witness and granting the prosecution’s s 27 application to cross-examine her (Ground 3); 4. the judge erred in failing to adequately direct the jury as to the permissible and impermissible uses of Ms Tong’s evidence (Ground 4); and 5. the judge erred in failing to give the jury a corroboration direction about Ms Yuot as an accomplice witness (Ground 5). Held, per the Court, dismissing grounds 1A, 3 and 5: 1. There was no error in the judge admitting the evidence of Ms Yuot pursuant to s 34KA of the Evidence Act 1929 (SA). 2. The challenges to the judge’s decision to declare Ms Tong a hostile witness and permit the prosecutor to cross-examine her have not been made out. 3. The judge was not required to give an accomplice direction in circumstances where the evidence fell short of providing a basis for concluding that Ms Yuot assisted or encouraged the assault on Mr Panchol. Held, per the Court, upholding ground 2 and allowing the appeal: 4. The evidence of Ms Tong alleging a separate assault by the appellant and providing hearsay support for his involvement in the assault of Mr Panchol was inadmissible by reason of its prejudicial effect. 5. Despite any directions by the judge, this prejudice was unable to be dispelled or negated and there was a realistic possibility that the jury would have been influenced by it in their decision making. 6. As such, a miscarriage of justice was occasioned by the introduction of the evidence of Ms Tong. Criminal Law Consolidation Act 1935 (SA) ss 21, 23(3); Evidence Act 1929 (SA) ss 27, 34KA, 34KD, 34P, 34R, referred to. Davies v Director of Public Prosecutions (UK) [1954] AC 378; Glover (a pseudonym) v The King [2026] SASCA 18; Mullen v DPP (2020) 136 SASR 274; Police v Dunstall (2015) 256 CLR 403; R v Glastonbury (2012) 115 SASR 37; R v Haines [2016] SASC 96; R v Jacquier (1979) 20 SASR 543; R v Sahlstorfer [2024] SASC 55; R v Smith (No 2) (1995) 64 SASR 1; Riat v The Queen [2012] EWCA Crim 1509, considered. -- 2 of 28 -- WAWU v THE KING [2026] SASCA 41 Court of Appeal – Criminal: S Doyle, Bleby and David JJA 1 THE COURT: The appellant, Raan Wawu, was convicted by a jury of a single count of aggravated recklessly causing serious harm.1 The offence was aggravated by reason of it being committed in the company of other people. 2 The appellant was charged alongside three co-accused: Deng Deng, Thon Deng and Monychol Monychol. It was alleged that these men assaulted the victim, Garang Panchol, at a social gathering for a barbeque in a reserve in Kilburn, on 25 March 2023. 3 As Mr D Deng was not able to be located, the trial proceeded against three defendants: the appellant, Mr T Deng and Mr Monychol. The appellant was found guilty, but his two co-accused were found not guilty. 4 There was no dispute at trial that Mr Panchol was assaulted, and that he sustained several injuries – most significantly a subdural haematoma which required neurosurgical intervention. By the point of closing submissions, it was not disputed that Mr Panchol had suffered ‘serious harm’.2 5 The issue in dispute at trial was the identity of the person(s) who assaulted Mr Panchol. 6 The prosecution case included evidence from three lay witnesses who attended the gathering. 7 The first was the victim, Mr Panchol, who gave evidence of being assaulted by the defendants. 8 The second was Athok Yuot, who was in the early stages of a relationship with Mr Panchol. She had previously been in a relationship with the appellant. She witnessed the assault, and gave a statement to police on 8 April 2023 in which she named the appellant as one of the assailants. Ms Yuot died before the trial, however her statement was received in evidence pursuant to s 34KA of the Evidence Act 1929 (SA). 9 The third was Aluel (Lola) Tong. She was expected to give evidence that she witnessed the assault of Mr Panchol, and that the appellant was one of the assailants. However, she instead gave evidence that she did not see Mr Panchol being assaulted; that she arrived at the reserve in Kilburn after Mr Panchol had left. However, Ms Tong did say that she saw the appellant later assault another person. 1 Contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). 2 As defined in s 21 of the CLCA. -- 3 of 28 -- [2026] SASCA 41 The Court 2 10 The appellant seeks permission to appeal his conviction on five grounds, each of which relates to the evidence of Ms Yuot or Ms Tong. In particular, the appellant contends that: • the judge erred in admitting the evidence of Ms Yuot pursuant to s 34KA of the Evidence Act (Ground 1A3); • the trial miscarried as a result of Ms Tong giving prejudicial evidence about the appellant having committed a different, uncharged assault (Ground 2); • the judge erred in declaring Ms Tong a hostile witness and permitting the prosecutor to cross-examine her pursuant to s 27 of the Evidence Act (Ground 3); • the judge erred in failing to adequately direct the jury about the permissible and impermissible uses of Ms Tong’s evidence (Ground 4); and • the judge erred in failing to give the jury a corroboration direction about Ms Yuot as an accomplice witness (Ground 5). 11 For the reasons which follow, we grant permission to appeal. We dismiss the grounds relating to Ms Yuot’s evidence. The judge was correct to admit her statement under s 34KA of the Evidence Act, and there was nothing in the evidence that required an accomplice direction. The evidence of Ms Tong was more problematic. We agree with the judge’s decision to declare her hostile and to permit cross-examination by the prosecutor. However, Ms Tong’s evidence about the appellant’s involvement in a second assault was highly prejudicial to the appellant, and was not ultimately able to be neatly quarantined from the forensic contest at trial. In our view, despite the judge’s directions to ignore Ms Tong’s evidence, there remained a real risk that it would have influenced the jury’s consideration of the case against the appellant. We are satisfied that the trial miscarried, and that the appeal should be allowed. The prosecution case 12 As mentioned, the prosecution case included evidence from each of Mr Panchol, Ms Yuot and Ms Tong. It is appropriate to commence by summarising the evidence given by each. Mr Panchol’s evidence 13 Mr Panchol gave evidence that he was in a relationship with Ms Yuot. They had been together at his house on the morning of 25 March 2023. They both had plans to go to a gathering at a reserve in Kilburn later in the day. Ms Yuot left for the function first, and he made his way there later. 3 The appellant’s Ground 1 was abandoned and replaced with this Ground 1A. -- 4 of 28 -- [2026] SASCA 41 The Court 3 14 When he arrived at the reserve, at about 10.00 am or 11.00 am, the atmosphere was relaxed. There were about 15 people in attendance, including Ms Yuot, the appellant and the co-accused. Mr Panchol already knew Mr D Deng, Mr T Deng and Mr Monychol, but he only met the appellant that day, at the barbeque. 15 An hour or so after arriving, Mr Panchol went to purchase some alcohol. After returning to the reserve, he became involved in an argument. In particular, he was pulled aside by Mr D Deng, who confronted him about an allegation that he (Mr Panchol) had been physically aggressive towards Ms Yuot. During the argument that followed, Mr D Deng grabbed Mr Panchol. Mr Panchol resisted, and several other men, including the appellant, Mr T Deng and Mr Monychol, ran over to them. The appellant punched him in the head, and the co-accused joined in and began punching him. Mr Panchol said that the appellant, Mr T Deng and Mr Monychol repeatedly punched and kicked him, including after he had fallen to the ground. 16 After they eventually left him alone, Mr Panchol left the reserve and went home. He later went to the hospital for treatment. His injuries included a fractured cheek bone and a subdural haematoma. 17 Mr Panchol participated in a police photograph identification procedure, and identified the man in the appellant’s photograph as ‘Raan’ (the appellant’s first name), and as the man who punched him in the head. A video recording of this identification procedure was shown to the jury. Ms Yuot’s out of court statement 18 In her statement to police, dated 8 April 2023, Ms Yuot said that Mr Panchol invited her to attend a barbeque in a park in Kilburn on 25 March 2023. She was also invited to attend the same gathering by the appellant. She described this as ‘very awkward’ for her as she was beginning a relationship with Mr Panchol, but she had previously been in a relationship with the appellant (who was the father of her two children). 19 Ms Yuot said that her conversation with Mr Panchol about the gathering turned into an argument. She left to catch the train to the barbeque, with Mr Panchol saying he was not going to attend because he was mad with her. 20 Ms Yuot said that there were a number of people at the barbeque, including the appellant. She had a conversation with the appellant which commenced with a discussion about their children, but then turned to the topic of her relationship with Mr Panchol. The appellant asked her if Mr Panchol had ever laid hands on her, and she told him that Mr Panchol had kicked her off a bed about two months earlier, and that this had resulted in a physical altercation between the two of them. 21 Soon after this, Mr Panchol arrived at the barbeque – despite Ms Yuot thinking he was not going to attend, given what he had said to her earlier in the -- 5 of 28 -- [2026] SASCA 41 The Court 4 day. Ms Yuot saw the appellant approach Mr Panchol with a group of at least four males and one female. She saw a fight break out between the group and Mr Panchol. She saw the appellant punch Mr Panchol, but said that she ‘couldn’t confirm where it was on his body’. She described it as a ‘large fight’, with Mr Panchol fighting back when the group set on him. 22 According to Ms Yuot, the fight stopped after she yelled out to the appellant to stop punching Mr Panchol. Mr Panchol eventually left the reserve. 23 Ms Yuot’s statement concluded with a reference to a message from Mr Panchol the following day suggesting that she had ‘set him up’. She denied that she had, saying that she was under the impression that he was not going to attend the barbeque, and that she had not wanted or expected that Mr Panchol would be assaulted. 24 Ms Yuot died in April 2024. Her statement was received in evidence pursuant to s 34KA of the Evidence Act. Ms Tong’s statements and evidence 25 Ms Tong gave three statements to the police, dated 20 April 2023, 28 March 2025 and 16 May 2025. The first statement was taken by Constable Zito, and the second and third statements were taken by Brevet Sergeant Fisher. The second statement was recorded using a body-worn video camera. The third statement was taken following a proofing session at the office of the Director of Public Prosecutions in the week before the commencement of trial. 26 In these statements, Ms Tong had said that she attended the reserve in Kilburn for a barbeque on 25 March 2023. While she was there, she observed a group of people calling out abuse to Mr Panchol (whom she had known since high school). She recognised the appellant as one of the people yelling abuse at Mr Panchol. Ms Tong said that she saw the appellant punch Mr Panchol several times with a closed fist. She also said that, following the assault, she rendered first aid to Mr Panchol. 27 When Ms Tong was called by the prosecution to give evidence at trial, she gave a different version of events. She acknowledged that she was at the gathering. She knew Mr Panchol and the appellant, but not well. She knew Ms Yuot and the co-accused well. There were over 20 people at the gathering. 28 Significantly, Ms Tong said that she did not see Mr Panchol at the reserve on 25 March 2023. She said she was told about a fight involving Mr Panchol but did not see it. He had left by the time she arrived. However, she said that the appellant did start a fight while she was there with another person, a friend of hers named ‘Fly D’. She said that Fly D was ‘the second person he assaulted that day’. 29 In the absence of the jury, the prosecutor made an application to have Ms Tong declared a hostile witness. In the voir dire that followed, Ms Tong was -- 6 of 28 -- [2026] SASCA 41 The Court 5 cross-examined by the prosecutor. When asked about the references to her seeing the appellant assault Mr Panchol in her statements, Ms Tong said that when police took each of the statements from her, she had referred to ‘Fly D’ and not ‘Panchol’; that the police had misheard or misunderstood what she said. At the same time, Ms Tong also acknowledged that she had concerns about giving evidence – in particular, she was worried about the safety of her younger brother, whom she believed was incarcerated with the appellant. Indeed, Ms Tong went so far as to acknowledge that she was not prepared to say that she saw the appellant assaulting Mr Panchol because of concerns for her brother. 30 After hearing evidence from Constable Zito and Brevet Sergeant Fisher (in which they denied that Ms Tong ever mentioned ‘Fly D’ when they were taking her statements), the judge acceded to the prosecution’s hostile witness application, and ruled that the prosecutor was permitted to cross-examine Ms Tong to the extent of challenging the veracity of her denial that she saw Mr Panchol being assaulted (but stopping short of suggesting that she saw the appellant perpetrate that assault). 31 Upon the resumption of the trial before the jury, and during cross- examination by the prosecutor, Ms Tong adhered to her evidence that the person she witnessed being assaulted was Fly D, and not Mr Panchol. She said that she had told police it was Fly D and not Mr Panchol who was assaulted, despite what appeared in her witness statements. She said that she called the police after Fly D had been assaulted. Other evidence 32 The prosecution called evidence from two doctors about the injuries to Mr Panchol. 33 The prosecution also called evidence from Brevet Sergeant Fisher,4 who gave evidence about the investigation generally, as well as the process of taking statements from Ms Tong and Ms Yuot. In relation to the former, Brevet Sergeant Fisher denied that Ms Tong mentioned the name ‘Fly D’ to him when he was taking her second and third statements. In relation to the latter, Brevet Sergeant Fisher explained that both he and Constable Zito attended Ms Yuot’s house. As she appeared to engage more with him than Constable Zito, he took a statement from her. He did so in their police vehicle outside Ms Yuot’s house, using a tablet to type out her account of what had occurred. He described Ms Yuot as softly spoken and as appearing scared, in the sense of ‘not wanting to get people in trouble’. He said that Ms Yuot was given a chance to, and did, read over her statement, although he could not recall if she requested any corrections. She then signed her statement electronically. 34 The prosecution relied upon several agreed facts, which included agreement that Constable Zito’s evidence was that, when taking the first statement from Ms Tong on 20 April 2023, Ms Tong did not refer to anyone by the name of Fly D. 4 That is, to give evidence in the trial, as opposed to his evidence in the voir dire (outlined earlier). -- 7 of 28 -- [2026] SASCA 41 The Court 6 As for the reference in that statement to Mr Panchol being assaulted, Constable Zito’s evidence was that Ms Tong ‘would have told me that’. The defence case 35 The appellant and his co-accused did not give evidence, and did not call any evidence in their defence. Course of the trial 36 Given the nature of the matters raised on appeal, it is appropriate to provide an overview of the course of the trial. 37 The prosecution application to rely upon Ms Yuot’s statement under s 34KA of the Evidence Act was made, and granted, prior to the commencement of the trial. 38 The trial commenced on 20 May 2025, and concluded with verdicts taken on 2 June 2025. 39 After the prosecution opening, Mr Panchol gave evidence, as summarised above. 40 Ms Tong was then called to give evidence. As outlined above, when she unexpectedly gave evidence to the effect that she did not see Mr Panchol being assaulted, the judge held a voir dire in order to determine whether she should be declared hostile, and the prosecution have permission to cross-examine her. The voir dire proceeded over two days, however it was interrupted so as to resume the trial to hear the medical evidence. At the conclusion of the voir dire, the judge ruled in the prosecutor’s favour, and Ms Tong was then cross-examined in the trial. 41 After completing Ms Tong’s evidence, the prosecution tendered Ms Yuot’s statement. It was marked for identification, and read to the jury. As objection was taken, a hard copy of the statement was not provided to the jury. 42 Some evidence was taken from Brevet Sergeant Fisher. This included him describing the process by which statements were taken from Ms Tong and Ms Yuot. 43 After informing the jury of some agreed facts, the prosecution closed its case. 44 Counsel for the appellant had earlier made an application for a mistrial as a result of Ms Tong’s evidence (in particular, her reference to seeing the appellant assault Fly D). This application was first made during the adjournment of the trial in order to hear the prosecutor’s hostile witness application. However, consideration of the application for a mistrial was twice deferred. It was first deferred to complete the medical evidence and the hostile witness voir dire. It was then further deferred to complete the prosecution case. -- 8 of 28 -- [2026] SASCA 41 The Court 7 45 Following the conclusion of the prosecution case, submissions were made on the application for a mistrial. The judge declined the application. 46 There was no evidence in the defence cases. 47 During the summing up, the judge received a note from the jury requesting a copy of Ms Yuot’s statement. Counsel for the appellant objected to the statement being provided to the jury. However, the judge permitted the prosecution to re- open its case, and the hard copy of Ms Yuot’s statement was tendered and received as Exhibit P5. The jury were provided with copies. 48 Counsel for the appellant made a further mistrial application, relying upon concerns about the judge’s directions in relation to Ms Tong’s evidence, including submissions that had been made in relation to that evidence by counsel for the co- accused Mr T Deng. That application was refused. 49 The judge completed his summing up. The jury deliberated and ultimately returned a verdict of guilty in relation to the appellant, and verdicts of not guilty in relation to the co-accused. The appeal 50 The five grounds of appeal relied upon by the appellant have been set out earlier in these reasons. 51 It is convenient to commence by addressing Grounds 1A and 5, which relate to the evidence of Ms Yuot, before then addressing Grounds 2, 3 and 4, which relate to the evidence of Ms Tong. Ground 1A: admission of Ms Yuot’s statement 52 In Ground 1A, the appellant contends that the judge erred in admitting the evidence of Ms Yuot pursuant to s 34KA of the Evidence Act. 53 The principles governing the admissibility of out of court statements under s 34KA are not in dispute. They have been addressed in several decisions of this Court. However, it is convenient to commence with a brief summary of the relevant principles. 54 Section 34KA of the Evidence Act represents a fundamental departure from the common law position, which generally requires the exclusion of any out of court statements as inadmissible hearsay. Instead, s 34KA, upon satisfaction of certain preconditions, provides for the admissibility of an out of court statement made by a person who is ‘unavailable’ in one of the senses contemplated by ss 34KA(2)(a) to (e). Where, as here, the person is unavailable because he or she is dead (s 34KA(2)(a)), the statement is admissible without more. 55 Section 34KA has the potential to operate to the prejudice or detriment of an accused by reason of the inability to test the evidence rendered admissible by this -- 9 of 28 -- [2026] SASCA 41 The Court 8 section through the usual mechanism of cross-examination. However, ss 34KB and 34KC seek to ameliorate this prejudice or detriment in the ways specified in those sections. In addition, s 34KD both confers on the Court a statutory discretion to exclude an out of court statement where there is a danger that its admission would result in an undue waste of time (s 34KD(1)), and preserves the common law ‘discretions’ to exclude evidence on the ground that its prejudicial effect exceeds its probative value, or on grounds of impropriety or unfairness (s 34KD(2)). 56 In R v Haines,5 Kourakis CJ described s 34KA as a fundamental departure from the common law approach to hearsay, and 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, his Honour considered that the forensic disadvantage associated with the receipt of hearsay evidence, and the loss of the procedural right to cross- examine, must nevertheless be accorded substantial weight in determining whether, for example, the evidence should be excluded on the ground of unfairness.6 57 As Kourakis CJ explained, when evaluating the forensic disadvantage or unfairness to an accused, relevant considerations will include:7 • 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. • 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. 58 In deciding to invoke the unfairness discretion in that case, Kourakis CJ relied upon the combination of a number of considerations, including (i) the 5 R v Haines [2016] SASC 96 at [40] (Kourakis CJ). 6 R v Haines [2016] SASC 96 at [40]-[41] (Kourakis CJ). 7 R v Haines [2016] SASC 96 at [40] (Kourakis CJ). -- 10 of 28 -- [2026] SASCA 41 The Court 9 potential for unreliability in the police statement of the relevant witness given the unsatisfactory circumstances in which it was taken, and (ii) the fact that the witness subsequently prepared an affidavit containing a fundamentally inconsistent version of events. It was in these circumstances that the inability to test the witness’ statement through cross-examination, or any other means, resulted in an intolerable unfairness. 59 Subsequently, in Mullen v DPP,8 Lovell J emphasised that the very 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. His Honour also emphasised that exclusion on the ground of unfairness could not be justified by unfairness in some general or loose sense. Rather, it required a conclusion that receipt of the evidence would involve a risk that the accused would not receive a fair trial.9 Lovell J also emphasised that a determination of the significance of the forensic disadvantage to an accused, and hence a determination of whether the statement might be excluded on the ground of unfairness, must occur in the context of the statutory scheme of which s 34KA forms part10 – it being a scheme which was plainly designed to permit, in appropriate cases, the admission of hearsay evidence from witnesses who are unavailable to give evidence and be cross-examined. 60 Finally, in R v Sahlstorfer,11 Stein J admitted a 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. Stein J referred to some of the jurisprudence in relation to the operation of similar legislation in the United Kingdom.12 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 witness’ statement. It was also relevant to have regard to the importance of the evidence to the prosecution case. 61 In the present case, there is no dispute that Ms Yuot’s police statement qualified for admission under s 34KA. The issue on appeal is whether the judge erred in declining to exclude the statement under s 34KD(2). Whilst the appellant’s submissions were focussed upon a complaint that the judge ought to 8 Mullen v DPP (2020) 136 SASR 274 at [39] (Lovell J). 9 Mullen v DPP (2020) 136 SASR 274 at [45]-[46] (Lovell J). 10 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). 11 R v Sahlstorfer [2024] SASC 55. 12 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). -- 11 of 28 -- [2026] SASCA 41 The Court 10 have excluded the statement on the ground of unfairness, reliance was also placed upon the ground that the evidence was more prejudicial than probative. 62 In challenging the judge’s refusal to exclude Ms Yuot’s statement on the ground of unfairness, and in line with the authorities mentioned above, the appellant made detailed submissions addressing the probative value of the statement, its significance to the prosecution case, its consistency with other evidence, its reliability given matters including the process by which it was prepared, and the extent of the forensic disadvantage to the appellant as a result of the inability to cross-examine Ms Yuot. 63 In terms of the probative value of Ms Yuot’s statement, it is accepted that it had a high probative value. According to Ms Yuot, she was at the reserve in Kilburn, and witnessed the assault of Mr Panchol. Importantly, given that the real issue at trial was identity, Ms Yuot identified the appellant as one of the assailants. She said she saw the appellant punch Mr Panchol. As the partner of Mr Panchol, and former partner of the appellant, these men were both well known to Ms Yuot. 64 That said, and as the appellant emphasises, Ms Yuot’s statement was lacking in detail in several critical respects. She did not describe the fight, or the appellant’s involvement in it, in any significant detail. She did not identify any of the other participants in the fight, or how long it lasted. The only detail she gave of the appellant’s involvement was that she saw him punch Mr Panchol, but even in relation to that punch she said she ‘couldn’t confirm where it was on his body’. In assessing the probative value of Ms Yuot’s statement, it is also significant that she did not say how far she was from the fight, or anything else about her vantage point. It seems implicit in her reference to the appellant having stopped punching Mr Panchol when she yelled out to him that she was not far away, but she did not reveal in her statement whether there were any people or other obstructions which might have impeded her view. Nor did Ms Yuot say whether she, like others at the gathering, had been drinking alcohol. 65 Ms Yuot’s evidence was important to the prosecution case, but not critical to it. The prosecution case also included evidence from Mr Panchol which was relevantly consistent in identifying the appellant as one of the assailants. It had been anticipated that the prosecution case would also include relevantly consistent evidence from Ms Tong although, as addressed elsewhere in these reasons, that did not come to pass. The evidence of Mr Panchol’s injuries was also corroborative in a general way of Ms Yuot’s evidence, although only as to Mr Panchol being assaulted and not as to the identity of his assailants. 66 On appeal, the appellant challenges the reliability of the process by which Ms Yuot’s statement was taken. He points to the fact that the statement was taken by Brevet Sergeant Fisher in a police vehicle, using a tablet. This was said to be significant because it was apparent from the body-worn camera footage, disclosed during the hostile witness voir dire, that there were some deficiencies in the process by which Brevet Sergeant Fisher had taken a statement from Ms Tong in similar -- 12 of 28 -- [2026] SASCA 41 The Court 11 circumstances. In particular, the appellant relies on the following features of the process by which Ms Tong’s statement was taken: the use of narrowly focussed and leading questions to elicit information; the ‘rushed’ process of reading the statement back to her; the limited opportunity for consideration of whether to make any corrections; the use of an electronic signature which was then replicated across each page of the statement; and the failure to properly affirm or swear, or even seek an express acknowledgement of, the truth of the contents of the statement. The appellant submits that these deficiencies suggest a risk that Brevet Sergeant Fisher might have been similarly lax in taking Ms Yuot’s statement. Whilst this challenge to the process by which Ms Yuot’s statement was taken was not an issue raised at trial, the appellant points out that the body-worn camera footage referred to was not disclosed until after the commencement of trial, and hence after the ruling on the admissibility of Ms Yuot’s statement under s 34KA of the Evidence Act. 67 We are not persuaded that this challenge to the process by which Ms Yuot’s statement was taken has any significant force. Even accepting that Brevet Sergeant Fisher’s process in taking Ms Tong’s second statement fell short of what might be expected of a police officer preparing a formal statement, we regard this as a speculative basis for drawing any inference about the process that might have been adopted almost a year earlier when he took Ms Yuot’s statement. Further, even if there was a proper basis to entertain a possibility that the process by which Ms Yuot’s statement also fell short of what might be expected of a police officer preparing a formal statement, there is nothing in the circumstances of this case to suggest that this was likely to have had any significant effect upon the accuracy or cogency of the statement taken. The circumstances of the present case are a long way from the circumstances in R v Haines, where there were several features of the process by which the impugned statement was taken which were unsatisfactory and had an obvious and real potential to compromise the reliability of the statement. 68 It may be accepted that some of the wording used in Ms Yuot’s statement (for example, the references to a ‘physical altercation’ and to ‘outstanding warrants’) is more consistent with the style of language typically used by a police officer rather than a layperson. But most of the statement is expressed in relatively simple terms, consistent with a layperson’s eye-witness account. Further, even though the evidence reveals that Ms Yuot was relatively young (22 years of age) and born in Kenya, there was nothing in the evidence to doubt, or form any view about, her command of the English language. In the circumstances, we do not think there is a proper basis for inferring that Ms Yuot’s statement does other than accurately reflect the substance and general wording of her account of what occurred. 69 In this context, it is also important to bear in mind that, whilst the paradigm case for the use of s 34KA might be a formal police statement, the taking of which has been recorded (or observed by someone independent of the police), the operation of that section is not confined to that scenario. It may extend, in -- 13 of 28 -- [2026] SASCA 41 The Court 12 appropriate cases, to informal statements made by a witness who then becomes unavailable to give evidence at the trial. It follows that the absence of any recording, or even notes, of the process by which Ms Yuot’s statement was taken is not necessarily a significant consideration. 70 Further, even though the body-worn camera footage of the process by which Ms Tong’s statement was taken was not available at the time of the ruling in relation to Ms Yuot’s statement, it is nevertheless significant that no point was taken, and no questions were asked, about the reliability of the statement-taking process when Ms Yuot’s statement was ultimately tendered and Brevet Sergeant Fisher was cross-examined. There was no challenge to Brevet Sergeant Fisher’s evidence that he recalled reading Ms Yuot’s statement back to her, and giving her an opportunity to make any corrections. By that stage of the trial, counsel for the appellant had been provided with the body-worn camera footage referred to above. 71 A final matter relied upon by the appellant is Ms Yuot’s reference at the end of her statement to Mr Panchol accusing her of having ‘set him up’. The appellant argues that this was prejudicial hearsay, in the sense that it might be construed as evidence suggesting that Ms Yuot had been involved in arranging for the appellant to assault Mr Panchol. Although it would have been better had this reference been excluded from Ms Yuot’s statement, we are not persuaded that it was ultimately of any significance. No objection was taken to this reference, and Mr Panchol denied making any such statement or accusation. It was not a matter which featured in final addresses or in the judge’s summing up. If anything, acceptance of Ms Yuot’s evidence was more likely to have adversely affected Mr Panchol’s credit (given his denial that he made this accusation) than to have adversely impacted the appellant’s defence. 72 Finally, it is true that Ms Yuot was in a difficult position as a witness to the assault of her current partner by her former partner (and father of her two children). This is perhaps reflected in Brevet Sergeant Fisher’s observation that, when taking Ms Yuot’s statement, she appeared reluctant to cause ‘trouble’. Even if reluctant to get anyone in ‘trouble’, it is significant that Ms Yuot was nevertheless prepared to acknowledge that she had told the appellant about an occasion when Mr Panchol had kicked her off a bed. She also acknowledged Mr Panchol’s suggestion that she had ‘set him up’. Indeed, there does not appear to be anything on the face of Ms Yuot’s evidence to suggest she was unduly affected by her loyalty to either of the appellant or Mr Panchol. Whilst this is a topic that might have been explored through cross-examination had Ms Yuot been available to give evidence, we consider that the potential significance of her conflicting loyalties was a matter the jury could make some reasonable assessment of, even without the assistance that might have been derived from cross-examination. 73 Bearing in mind all of the above, it is appropriate to acknowledge that the inability to test Ms Yuot’s statement through the usual mechanism of cross- examination did place the appellant at a forensic disadvantage (relative to the position he would have been in had Ms Yuot been available for cross- -- 14 of 28 -- [2026] SASCA 41 The Court 13 examination). At the very least, the lack of detail in Ms Yuot’s description of the fight, and her vantage point, meant that there would have been room for some potentially significant cross-examination. That said, it would be speculative for us to form any view about how fertile that cross-examination might have been. Further, and in any event, as Lovell J emphasised in Mullen v DPP, the existence and operation of s 34KA is predicated upon the tolerance of at least some degree of forensic disadvantage. 74 In our view, in the absence of any clear basis for concern about the reliability of the process by which Ms Yuot’s statement was taken, or the reliability of her version of events, there was no proper basis to exclude that statement under s 34KD(2) on the ground of unfairness. The jury were in a position to make a reasonable assessment of the credibility and reliability of Ms Yuot’s statement, and to determine the weight it ought to be afforded. As we have already observed, the present case is a long way from the circumstances in R v Haines, where there was not only good reason to apprehend that the statement-taking process might have compromised the reliability of the statement, but also the witness had later provided a second statement which was directly inconsistent with the first one. 75 Nor, in our view, was there any proper basis to exclude Ms Yuot’s statement on the ground that it was more prejudicial than probative. The appellant’s submissions in support of exclusion on this ground involved largely, if not entirely, a repetition of the matters already addressed above. To the extent that these matters involved prejudice to the appellant, that prejudice did not outweigh the probative value of Ms Yuot’s statement. 76 In summary, no error has been demonstrated in the judge’s decision to admit Ms Yuot’s statement under s 34KA of the Evidence Act. Nor can it be said that the admission of that statement occasioned any miscarriage of justice.13 Ground 1A has not been made out. Ground 5: accomplice direction 77 Ground 5 involves a complaint that the judge did not give any accomplice direction in relation to the evidence of Ms Yuot. 78 At the level of general principle, a jury must be warned about the danger of acting on the uncorroborated evidence of an accomplice who gives evidence against implicating an accused. Where it is not clear whether a witness is an accomplice, but there is a reasonable basis in the evidence to conclude that the 13 Although Ground 1A was couched in terms of an error on a question of law, it encompassed a complaint of miscarriage insofar as the appellant relied upon the evidence at trial (including Ms Tong’s departure from her statements, and the body-worn camera footage of the process by which her second statement was taken). -- 15 of 28 -- [2026] SASCA 41 The Court 14 witness is an accomplice, then it should be left for the jury to determine whether they are an accomplice.14 79 Thus, in determining whether an accomplice direction should be given, the issue, in a case such as the present, is whether the evidence reveals a basis upon which a reasonable jury might conclude that the witness participated in, or otherwise assisted or encouraged, the principal offender’s commission of the charged offence. As Walters and Wells JJ explained in R v Jacquier:15 Admittedly, a witness who has not been put on trial in respect of the offence charged may fall within the category of accomplice, if by actions and gestures intended to signify approval, he has given assistance and active encouragement to the principal offender though he has taken no positive or active step in the commission of the offence. Nevertheless, as Jacobs J observed in Reg v Rigney, mere presence as a spectator, or ‘even an inferred intention to encourage the conduct is not sufficient’ to make a person an accomplice, in the absence of evidence of actual encouragement. … Mere inaction of a spectator to prevent an offence from occurring would not constituted him an accomplice. 80 In the present case, the judge did not give any accomplice direction in relation to Ms Yuot. Indeed, no-one suggested at trial that any such direction should be given. 81 In now contending that there was a basis in the evidence on which a reasonable jury might have concluded that Ms Yuot was an accomplice, the appellant relies upon Ms Yuot’s evidence to the effect that: she was in a relationship with Mr Panchol, having earlier been in a relationship with the appellant; on the morning of the assault, she had an argument with Mr Panchol and went to the gathering without him; she told the appellant that Mr Panchol had previously kicked her off a bed, resulting in a physical altercation; and the following day, Mr Panchol accused her of having ‘set him up’. 82 In our view, this evidence falls short of establishing a proper basis for a reasonable jury to conclude that Ms Yuot participated, assisted or even encouraged the assault of Mr Panchol. 83 It may be accepted that, in telling the appellant about the incident in which Mr Panchol had kicked her off a bed, Ms Yuot may have provided a reason or motive for the appellant (and his co-accused) to assault Mr Panchol. Indeed, on the prosecution case, and consistently with the evidence given by Mr Panchol that Mr D Deng confronted him with an allegation that he had been violent towards Ms Yuot, this may well have been the motive for the assault. 84 However, merely supplying a motive for an assault falls short of assisting or encouraging the assault. Something more would have been required to provide a 14 R v Smith (No 2) (1995) 64 SASR 1 at 26 (Mullighan J, Cox and Olsson JJ agreeing); R v Glastonbury (2012) 115 SASR 37 at [69]-[78] (Sulan J, Kourakis CJ and Stanley J agreeing); Davies v Director of Public Prosecutions (UK) [1954] AC 378 at 387 (Lord Simonds). 15 R v Jacquier (1979) 20 SASR 543 at 551 (Walters and Wells JJ); R v Glastonbury (2012) 115 SASR 37 at [78] (Sulan J, Kourakis CJ and Stanley J agreeing). -- 16 of 28 -- [2026] SASCA 41 The Court 15 proper basis to conclude that Ms Yuot assisted or encouraged the assault. In the absence of any basis for suggesting that Ms Yuot asked or encouraged the appellant to act on what she had told him, it is speculative to suggest that Ms Yuot might have been an accomplice. There was no evidence that Ms Yuot was involved in, or privy to, any plan or agreement to assault Mr Panchol. Indeed, on Mr Panchol’s evidence, whilst Ms Yuot’s conversation with the appellant might have supplied a motive, the assault appears to have been more of a spontaneous evolution of an accusation and argument, rather than the implementation of any plan or agreement. There were also aspects of Ms Yuot’s evidence which told against her involvement in any plan or agreement to assault Mr Panchol. On her evidence, she did not expect Mr Panchol to attend the reserve. And once the fight broke out, she caused it to end by yelling at the appellant to stop punching Mr Panchol. 85 In concluding that no accomplice direction was required, we have not overlooked Ms Yuot’s evidence that Mr Panchol later accused her of having ‘set him up’. Mr Panchol denied having made any such accusation. But even if the jury might have accepted that Mr Panchol did accuse Ms Yuot of setting him up, and indeed might have accepted that Mr Panchol believed that Ms Yuot had some role in the assault, this was not evidence that she did in fact encourage or assist in the assault. Any such belief was mere supposition, or speculation, on the part of Mr Panchol. It did not provide any proper basis in the evidence for a reasonable jury to conclude that Ms Yuot was an accomplice. 86 In the circumstances as described, it is no surprise that the appellant’s trial counsel did not seek an accomplice direction at trial. Whilst not of itself fatal to this ground of appeal, trial counsel’s failure to seek an accomplice direction is consistent with our assessment that the evidence at trial did not provide a proper basis for such a direction. 87 Ground 5 has not been made out. Grounds 2, 3 and 4: Ms Tong’s evidence 88 Grounds 2, 3 and 4 relate to Ms Tong’s evidence. They involve contentions that: • the trial miscarried as a result of Ms Tong giving prejudicial evidence about the appellant having committed a different, uncharged assault (Ground 2); • the judge erred in declaring Ms Tong a hostile witness and permitting the prosecutor to cross-examine her (Ground 3); and • the judge erred in failing to adequately direct the jury about the permissible and impermissible uses of Ms Tong’s evidence (Ground 4). 89 As outlined earlier in these reasons, prior to the commencement of the trial, Ms Tong had provided three police statements in which she described seeing the appellant assault Mr Panchol. However, when she came to give evidence, she gave -- 17 of 28 -- [2026] SASCA 41 The Court 16 a different version of events in which she said that Mr Panchol had left by the time she arrived at the gathering. She said that she was told about a fight involving Mr Panchol, but did not see it. However, she said that she did see the appellant start a fight with another person, a friend of hers named ‘Fly D’. She said that Fly D was ‘the second person he assaulted that day’. 90 In order to give colour to the appellant’s complaints about the way in which Ms Tong’s evidence unfolded and was addressed, it is appropriate to describe what occurred in some more detail. 91 At the outset of her evidence, when asked whether she was at the gathering where there was an incident involving Mr Panchol, Ms Tong said ‘I was not physically there but I did witness other stuff happened.’ After answering a number of questions about the gathering, and those in attendance, Ms Tong made reference to the mood of the gathering changing when the appellant, his brother and their friends arrived, adding that ‘they just kept picking on everyone that was invited.’ 92 Then came the exchange in which Ms Tong claimed that Mr Panchol had left before she arrived, but that she did see the appellant assault Fly D (whom she then referred to as ‘the second person he assaulted that day’): A Okay. What I saw was they had a lot of people on that bench and when [the appellant] and his brother and the third person came back, they did start a fight with another friend of mine. Q Who was that friend of yours. A He’s a male man named Fly D, but I don’t know his real name. Q What happened there. A Well, that’s the second person he assaulted that day. Q Okay. I want to focus on Mr Panchol, did something happen to him that day. A We came to the park and everybody kept saying that he left and was trounced, apparently. Q Was there a fight involving Mr Panchol, Garang Panchol. A We were – I didn’t witness it, so I can’t really speak on it. Q What happened to Garang Panchol. A After he got jumped, I was told that he walked home. Q Don’t tell us what you were told, what did you see of him. A I did not see him. … -- 18 of 28 -- [2026] SASCA 41 The Court 17 A By the time we got to the park he was already gone, went home. Q Did you see him leave. A I did not. Q Did you see him do anything. A I did not, nothing. Q Was he involved in a fight at any stage. A Not that I witnessed. Q Were there any fights at the park that day. A Yes, the one that the police came. 93 As also outlined earlier, the prosecution at this point made an application to have Ms Tong declared hostile, and to permit her to be cross-examined by the prosecutor. During the voir dire which followed, Ms Tong was cross-examined. She adhered to the version of events she had given in court, and when confronted with the references in her statement to having seen the appellant assault Mr Panchol, she claimed that she had told the police officers taking her statements that she saw the appellant assault Fly D and not Mr Panchol. However, she also went on to acknowledge that she was not prepared to say that she saw the appellant assaulting Mr Panchol because of concerns for her brother. 94 Constable Zito and Brevet Sergeant Fisher then gave evidence on the voir dire denying that Ms Tong had referred to Fly D. 95 Constable Zito confirmed that she took the statement from Ms Tong dated 20 April 2023 on her police tablet. She denied that Ms Tong ever referred to an individual by the name of ‘Fly D’ during the course of providing this statement. She confirmed that her general practice was to read a statement back to the witness before they signed it. 96 Brevet Sergeant Fisher confirmed that he took the two statements from Ms Tong dated 28 March 2025 and 16 May 2025. The first of these statements was taken at Ms Tong’s residence (in the police car, using a police tablet), and was filmed using a body-worn camera. At no time during the process of taking that statement did Ms Tong refer to anyone by the name ‘Fly D’. 97 Brevet Sergeant Fisher explained that the second of the two statements he took from Ms Tong was taken following a proofing meeting at the office of the Director of Public Prosecutions. Again, he denied that Ms Tong ever referred to anyone by the name ‘Fly D’. 98 Brevet Sergeant Fisher also said that he was unable to identify any person with the name ‘Fly D’ in the police system, even as an alias. However, police -- 19 of 28 -- [2026] SASCA 41 The Court 18 records tendered on the voir dire did include reference to a second incident (referred to as a ‘potentially violent disturbance’) that occurred at the reserve in Kilburn on the relevant date. 99 The body-worn camera footage, which was only disclosed during the course of the voir dire, confirmed that Ms Tong had, in providing her 28 March 2025 statement, made numerous references to the appellant assaulting Mr Panchol, and had not mentioned anyone by the name ‘Fly D’. 100 The judge ultimately granted the prosecution application. In his reasons for ruling in favour of the prosecution, his Honour accepted that Ms Tong’s evidence was ‘wholly inconsistent’, and in ‘stark contrast’, with the references in her statements to seeing Mr Panchol being assaulted by the appellant. His Honour rejected the submission that the police might have been mistaken about what Ms Tong was saying in their preparation of the statements. His Honour did so despite the police records demonstrating that there had been a second incident at the same reserve. His Honour found instead that Ms Tong was ‘withholding evidence due to an unwillingness to tell the truth’; and that she was ‘doing her best to avoid giving evidence consistently with the allegations she made in her police statements’. His Honour accepted that Ms Tong’s concerns for her brother’s welfare provided an ‘obvious explanation’, or ‘compelling reason’, for Ms Tong adopting this course. 101 The judge concluded his ruling by stating that he would allow the prosecution to cross-examine Ms Tong pursuant to s 27 of the Evidence Act in the way indicated. This was a reference back to the judge’s earlier reference to the prosecutor’s indication that he only sought to cross-examine Ms Tong so as to discredit her as a witness, by challenging her denials of having seen, and of having told the police that she saw, Mr Panchol be assaulted. He was not intending to seek to have Ms Tong adopt as true the references in her statements to having seen the appellant assault Mr Panchol. 102 Upon the resumption of evidence before the jury, Ms Tong adhered to her evidence that she did not see Mr Panchol being assaulted. When confronted with the references in her police statements to having seen Mr Panchol being assaulted, she maintained that she had told police that she saw Fly D and not Mr Panchol being assaulted. She added at one point in her evidence that ‘they were confusing me, because two crimes happened that day’. 103 When subsequently cross-examined by counsel for Mr T Deng about her reference to ‘two crimes’, Ms Tong confirmed her position that she did not see what had happened to Mr Panchol, and that what she had told police related only to an assault of Fly D. At two points in the cross-examination, Ms Tong agreed that she did not see Mr T Deng punch or assault Mr Panchol.16 On the first occasion, Ms Tong made it plain that this was because she did not see Mr Panchol 16 T367, T371-372. -- 20 of 28 -- [2026] SASCA 41 The Court 19 being assaulted at all. On the second occasion, the effect of Ms Tong’s evidence was less clear. As the cross-examination was conducted by reference to things she had said in her police statements, it was potentially open to a construction that she was adopting aspects of what she had said in her statements about the assault of Mr Panchol. However, given that she was adamant throughout her evidence in court that she did not see this assault, her second reference to not seeing Mr T Deng punch or assault Mr Panchol was probably also no more than a reflection of her evidence that she did not see Mr Panchol being assaulted at all (rather than evidence exculpating Mr T Deng from any involvement in that assault). 104 At the conclusion of Ms Tong’s evidence, the judge explained to the jury that he had taken the unusual course of permitting the prosecutor to cross-examine Ms Tong ‘because it appeared that she was not answering questions in the usual manner’. The judge then directed the jury: The prosecution and defence, in particular, you might think [counsel for Mr T Deng], will have a chance to say how you should approach her evidence at the end of the trial. But I want to say this, in terms of [the prosecutor’s] questions, Ms Tong did not admit that what she said out of court about the person recorded in her statement as [Mr Panchol] was the truth of the matter. She, in fact, did not admit that she had said Mr Panchol’s name as the person being assaulted. Therefore, she did not admit what she said in the statements out of court regarding that topic as being true. You may take into account that previous statement when you are assessing her as a witness, but I want you to understand the following, which is very important: it is what she said in this court that you must concentrate on and what she said in this court is that the segment of her statement regarding the name ‘Panchol’ was not true. You cannot and must not use the earlier statement where Mr Panchol is named as evidence of what happened concerning Mr Panchol. I’ll give fuller directions at the end of the evidence in this trial once prosecution and defence have made their submissions on this witness to you, but I thought you would have noticed the different way [the prosecutor] questioned her this morning and I thought, and by law I have to direct you as to how you must use it and how you must not use it at the end of the trial when you are asked to deliberate. 105 When it came to closing addresses, the prosecutor did not seek to rely upon Ms Tong’s evidence, submitting instead that the jury should put it to one side: My suggestion to you is you should ultimately put [Ms Tong’s] evidence to one side. This is an example of where someone has given an account that is different from their statement that is so fundamental that it can’t be the product of the efflux of time causing a problem with the memory, it has to be a deliberate effort not to tell the truth. 106 Counsel for the appellant made a similar submission: [Ms Tong’s evidence] was a sideshow … it’s a red herring, put it aside. 107 In this way, neither the prosecution nor the appellant sought to make any use of Ms Tong’s references to the appellant assaulting Fly D. -- 21 of 28 -- [2026] SASCA 41 The Court 20 108 Unfortunately, counsel for Mr T Deng took a different approach. When dealing with Ms Tong’s evidence in his closing address, he suggested that the jury might accept that when Ms Tong referred to Fly D in her evidence, she was in fact referring to Mr Panchol. He further suggested that if they accepted that this was so, then they could treat her evidence that she did not see Mr T Deng punch or assault Mr Panchol as evidence that Mr T Deng was not involved in the assault of Mr Panchol. 109 In the absence of the jury, the judge (and later the prosecutor and counsel for the appellant) raised a concern about these submissions. The concern related to the invitation to treat Ms Tong’s evidence about the assault of Fly D as evidence about the assault of Mr Panchol, and the attempt to elevate Ms Tong’s evidence that she did not see Mr T Deng assault Mr Panchol into positive evidence that Mr T Deng was not involved in the assault of Mr Panchol. It was pointed out that these submissions were problematic in circumstances where Ms Tong had denied substituting Fly D for Mr Panchol in her evidence, and where it was not at all clear that she had adopted as true the relevant passages from her statements which appeared to exculpate Mr T Deng from the assault of Mr Panchol. Rather, the clear import of Ms Tong’s evidence in court remained that she had not seen the assault of Mr Panchol – with the consequence that her evidence that she did not see Mr T Deng assault Mr Panchol added nothing, and could not be construed as positive evidence that he was not involved in the assault of Mr Panchol. The judge said that he would consider addressing this issue in his summing up. 110 Turning to the judge’s summing up, the judge included a relatively detailed summary of Ms Tong’s evidence. After mentioning her reference to the appellant starting a fight with her friend, Fly D, the judge told the jury to ignore this evidence as irrelevant: Ms Tong said that [the appellant] and the others started picking on everyone that was invited. [The appellant], his brother, started a fight with one of Ms Tong’s friends. She said Fly D. Members of the jury, if you accept her as truthful on that it is completely irrelevant so I direct you to ignore it. She stated that this was the second person that [the appellant] assaulted that day. Again, that is something you should ignore. She said, Ms Tong did not see a fight involving Mr Panchol. That is evidence you have to assess. … she said by the time she got to the park Mr Panchol had left. She did not see him that day. 111 The judge continued his summary of Ms Tong’s evidence, including her evidence to the effect that she had told police she saw Fly D, and not Mr Panchol, being assaulted. The judge also included reference to Ms Tong’s evidence, during cross-examination by counsel for Mr T Deng, to the effect that she did not see Mr T Deng punch or assault Mr Panchol. The judge said that if the jury were -- 22 of 28 -- [2026] SASCA 41 The Court 21 satisfied that this involved Ms Tong accepting the truth of her out of court statement to that effect, then ‘that is evidence you must consider’.17 112 During a break in the summing up, counsel for the appellant made a further application for a mistrial. The bases for this application included a concern that the judge had, by summarising Ms Tong’s evidence in detail, only exacerbated the problematic nature of the submissions made by counsel for Mr T Deng. In declining to declare a mistrial, the judge indicated that he was planning to direct the jury in relation to this issue. 113 Soon after resuming his summing up, the judge summarised the parties’ closing addresses. When summarising the prosecutor’s address, he reminded the jury of the prosecutor’s submission that Ms Tong’s evidence should be put to one side because she had made a deliberate effort not to tell the truth about what happened to Mr Panchol.18 114 When summarising the address of counsel for Mr T Deng, his Honour told the jury that there was no evidential basis for his submission that Ms Tong had been referring to Mr Panchol when she gave evidence about Fly D. His Honour explained:19 In regard to Ms Tong, he suggested that she was substituting the name Fly D instead of Panchol. She did not accept that. She did not accept that proposition. Therefore, I direct you that is not evidence of that assertion he made to you in his address. Can I give a ridiculous example to explain that law and how it applies. If someone suggested to me that I had been to the moon and I denied it, that is not evidence that I have been to the moon. I am trying to give you the most outlandish example I can think of. If someone put to me that proposition for my comment and I said ‘That’s just not true’, that person cannot assert that that is evidence of me going to the moon. So his submissions have to be tailored by me on that topic and [by] ‘tailored’ I meant subject of comment and correction. He put to you that Mr Thon Deng was not violent, did not assault Mr Panchol and was not part of a joint enterprise. He said on all the undisputed evidence, from his point of view it does not involve his client being violent, but you must remember the law about adopting a proposition, the man on the moon example, in assessing that. So he does not dispute that his client’s brother was present and shirt-fronted Mr Panchol, he does not dispute what others have said, but reminds you other than Mr Panchol, that no-one alleges he was violent, that is Mr Thon Deng. 115 Finally, when summarising the address of counsel for the appellant, the judge reminded the jury of her description of Ms Tong’s evidence as a ‘side show’ and a ‘red herring’. The judge added that ‘she correctly states that when you assess 17 Summing Up, p30. 18 Summing Up, p55. 19 Summing Up, p56. -- 23 of 28 -- [2026] SASCA 41 The Court 22 her evidence there is no evidence concerning an assault on Mr Panchol and that you should ignore her evidence about everything’. Hostile witness declaration 116 Under Ground 3, the appellant contends that the judge erred in declaring Ms Tong a hostile witness, and in permitting the prosecutor to cross-examine her. 117 On appeal, the appellant challenges the judge’s conclusion that Ms Tong was unwilling to tell the whole truth, in the sense that she was giving false evidence or withholding material evidence. 118 There was, and is, no dispute that there was a stark and significant difference between Ms Tong’s evidence (that she did not see Mr Panchol being assaulted) and what she had said in her statements (that she saw the appellant assault Mr Panchol). At trial, the appellant’s submission in opposition to a declaration that Ms Tong was a hostile witness was predicated upon the potential for there to have been some mistake or confusion in the process by which her statements were taken that had resulted in the inclusion of erroneous references to Mr Panchol rather than Fly D. This was understandably rejected as implausible, for the reasons which the judge gave (as summarised above). However, on appeal, the appellant’s submission is that the judge erred in overlooking the possibility that Ms Tong lied in what she told the police, but was telling the truth in court. 119 In support of the potential truth of Ms Tong’s in court description of what occurred, the appellant relies upon Mr Panchol’s evidence that he did not think Ms Tong was at the reserve when he was assaulted. The appellant also relies upon Ms Tong’s reference (albeit in her first statement, rather than in her evidence) to having rendered first aid to Mr Panchol following his assault, a detail which did not feature in Mr Panchol’s evidence. 120 In support of Ms Tong’s evidence of a second assault, the appellant relies upon the police records which suggest that later on the same day there was an incident at the same reserve, referred to in the police CAD report as a ‘potentially violent disturbance’. Although the report did not provide any further detail of that incident, it did include reference to Ms Tong as the person who had contacted the police. 121 The appellant also challenges the judge’s reliance upon Ms Tong’s concern for her brother as an explanation for her giving false evidence in court. In particular, the appellant challenges the suggestion, inherent in this explanation, that Ms Tong might have been fearful of the consequences for her brother were she to implicate the appellant. The appellant points out that, even though Ms Tong denied seeing Mr Panchol being assaulted, she nevertheless implicated the appellant in a later assault of Fly D, and indeed tended to implicate him in the earlier assault by referring to his assault of Fly D as his ‘second assault’ for the day. -- 24 of 28 -- [2026] SASCA 41 The Court 23 122 Finally, in contending that the judge ought to have found that Ms Tong lied to police rather than in court, the appellant contends that the police procedures in taking statements from Ms Tong were not sufficient to ensure that Ms Tong understood the importance of her telling the truth to the police. This was to be contrasted, in the appellant’s submission, with the obvious solemnity associated with giving evidence on oath, in the courtroom. 123 In our view, just as it was implausible to suggest that the police (repeatedly and consistently) misunderstood what they were being told by Ms Tong, it is equally implausible to suggest that Ms Tong lied to police throughout the process by which each of her three statements were taken. We do not consider that Mr Panchol’s inability to recall that Ms Tong was present and rendered him assistance, provides any sound basis for inferring that Ms Tong was lying in her statements. It would not be surprising if Mr Panchol was wrong about one or both of these matters. There may be other explanations for the apparent discrepancy between Mr Panchol’s and Ms Tong’s recollections. Further, we do not think that the evidence to support the occurrence of a second assault assists much in determining whether or not Ms Tong saw the first assault. Finally, it may be accepted that Ms Tong was prepared to give evidence that implicated the appellant in a later assault of Fly D, and indeed to do so in a way which included a hearsay reference to his involvement in the earlier assault of Mr Panchol. However, we do not consider this to be inconsistent with Ms Tong’s concern for her brother nevertheless making her reluctant to give evidence which would have directly implicated the appellant in the charged offending. 124 For these reasons, we do not accept that the judge erred in declaring Ms Tong hostile, and permitting the prosecutor to cross-examine her so as to discredit her evidence. 125 For completeness, we add that we do not accept that the judge was under any misapprehension as to the extent of the cross-examination intended by the prosecutor. In our view, a fair reading of the transcript reveals that the judge and prosecutor were at one as to the contemplated cross-examination, and that the cross-examination that followed conformed with the judge’s understanding in granting permission to cross-examination. In any event, in circumstances where, in our view, the cross-examination that occurred was justified by Ms Tong’s refusal to give truthful evidence, we do not think this aspect of the appellant’s submissions requires further consideration. Discreditable conduct and hearsay 126 Grounds 2 and 4 are related. Ground 2 involves a complaint of a miscarriage by reason of Ms Tong giving prejudicial evidence about a different, uncharged assault; namely, her evidence to the effect that she saw the appellant assault Fly D. Ground 4 involves a complaint that the judge failed to give adequate directions about the permissible and impermissible uses of this evidence of discreditable -- 25 of 28 -- [2026] SASCA 41 The Court 24 conduct on the part of the appellant, contrary to the requirements of s 34R of the Evidence Act. 127 There is no doubt that Ms Tong’s evidence about the appellant assaulting Fly D was evidence of discreditable conduct on the part of the appellant. It was evidence of violent conduct which was separate from the charged incident. It had a potential to cause significant prejudice to the appellant in circumstances where it involved evidence of the appellant acting violently at the same location as, and only a short time after, the assault the appellant was alleged to have perpetrated on Mr Panchol. 128 It was not suggested that this evidence had any permissible probative value in relation to the charged offending, or that it was admissible under s 34P of the Evidence Act. As such, we do not think it is appropriate to analyse the judge’s obligations to give directions through the prism of the s 34R requirement to identify and explain the permissible and impermissible uses of this evidence.20 There was no permissible use of this evidence. Whether under s 34R or otherwise, the judge’s only obligation was to direct the jury that they were not to make any use of this evidence. 129 It is to be acknowledged that the prosecutor, counsel for the appellant and the judge each endeavoured to prevent any prejudicial use of this evidence by the jury. As detailed above, the prosecutor submitted that the jury should reject Ms Tong’s evidence. Counsel for the appellant suggested that the jury should ignore her evidence as a ‘sideshow’ or ‘red herring’. The judge made specific reference to Ms Tong’s evidence that the appellant had assaulted Fly D, directing the jury that, even if truthful, it was completely irrelevant and should be ignored. 130 Applying the general assumption that juries can and do follow the directions they are given, it might be argued that the judge did enough to prevent any prejudice to the appellant. However, for the reasons which follow, we consider that this is too simplistic an approach in the present case. 131 First, it is appropriate to reiterate the particularly prejudicial nature of Ms Tong’s evidence. The prosecution case was, of course, that the appellant assaulted Mr Panchol at a social gathering in a reserve in Kilburn on 25 March 2023. The appellant denied that he was involved in the assault. In this context, Ms Tong’s evidence (to the effect that the mood at the gathering changed when the appellant, his brother and their friends arrived, that ‘they just kept picking on everyone that was invited’, and that they started a fight with Fly D), was potentially very damaging to the appellant. This evidence was capable of encouraging the jury into approaching their task of determining whether the appellant assaulted Mr Panchol with a mindset that the appellant was behaving in an aggressive and provocative manner on the relevant occasion, and indeed started a fight with another person. Even with clear directions to ignore this aspect of Ms Tong’s 20 Glover (a pseudonym) v The King [2026] SASCA 18 at [64]-[65] (Bleby, Stanley and B Doyle JJA). -- 26 of 28 -- [2026] SASCA 41 The Court 25 evidence, there is a danger that it might have coloured the jury’s approach to the evidence more generally. It is one thing to assume that a jury is capable of ignoring an isolated piece of unrelated inadmissible evidence, even if it reflects adversely upon the accused. It is quite another thing to assume that a jury can ignore an allegation of temporally proximate behaviour of a kind very similar to the charged offending. There is a greater risk of the latter type of evidence having a lingering effect upon the jury’s consideration of the evidence, even if only at a subconscious level. 132 Secondly, there is the related difficulty that, as a result of the form in which Ms Tong gave her evidence about the later assault of Fly D, she gave hearsay support for the appellant’s involvement in the earlier assault of Mr Panchol. Whilst clear in her evidence that she did not arrive at the gathering until after Mr Panchol had left the reserve, her evidence was expressed in terms that assumed that he had been assaulted, and indeed that the appellant had been involved in that assault. Ms Tong referred to people saying that Mr Panchol had left because he had been ‘trounced’, or ‘jumped’. In addition to this, when giving evidence that the appellant later assaulted Fly D, Ms Tong said that Fly D was ‘the second person [the appellant] assaulted that day’. Later in her evidence, Ms Tong suggested that when the police were taking her statements there may have been some confusion ‘because two crimes happened that day’. Thus, while accepting that she did not see the assault of Mr Panchol, Ms Tong implicated the appellant in that assault. Although the jury were directed to ignore Ms Tong’s evidence about the ‘second assault’, it may be doubted whether this would have been entirely effective in preventing the hearsay linking of the appellant to the assault of Mr Panchol from impacting upon the jury’s consideration of the evidence at trial. 133 Thirdly, the potential for the jury to quarantine and ignore Ms Tong’s evidence, and in particular her reference to the later assault of Fly D, was undermined by two features of the way in which the case was conducted. 134 It was undermined by the role that Ms Tong’s references to Fly D played in the prosecutor’s attempts to discredit Ms Tong’s evidence that she did not see the assault of Mr Panchol, or tell the police officers taking her statements that she saw the assault of Mr Panchol. Rather than Ms Tong’s reference to Fly D being put to one side and ignored, it became necessary for the prosecutor to cross-examine Ms Tong about whether she had in fact mentioned Fly D to the police officers who took her statements. It also became necessary to call evidence from those police officers that Ms Tong did not mention Fly D to them. 135 It was further undermined by the approach taken by counsel for Mr T Deng. As outlined above, counsel for Mr T Deng cross-examined Ms Tong about her reference to ‘two crimes’ having occurred on the day in question. Further, and more problematically, when it came to his closing address, counsel for Mr T Deng sought to embrace Ms Tong’s references to the assault of Fly D, but submit that the jury should conclude that she had substituted Fly D for Mr Panchol, and so was describing the assault of Mr Panchol rather than Fly D. -- 27 of 28 -- [2026] SASCA 41 The Court 26 136 In our view, the combined effect of the matters we have outlined was that Ms Tong’s evidence was not only highly prejudicial, but also not able to be neatly quarantined and ignored. It may be accepted that the judge endeavoured to address this prejudice in his summing up. He suggested to the jury that they might ultimately put to one side, or ignore, Ms Tong’s evidence. He also directed them that there was no evidence to support the submission that Ms Tong had substituted Fly D for Mr Panchol. Whilst these directions went some way to addressing the prejudicial effect of Ms Tong’s evidence, we are not confident that they would have been entirely effective in that regard. 137 In so concluding, we make no direct criticism of the judge’s attempts to address the difficulties that arose. But in our view, once Ms Tong unexpectedly gave the prejudicial evidence she did, the trial was at risk of miscarrying. Had it been possible to quarantine her evidence about the appellant assaulting Fly D (and her hearsay suggestion that he had earlier assaulted Mr Panchol), then it may have been possible to avoid a miscarriage. However, for the reasons we have described, Ms Tong’s references to Fly D became enmeshed in the broader forensic contest at trial, and were likely to have remained prominent in the jury’s consideration of the evidence. 138 In our view, despite the judge’s directions, there was a realistic prospect that the jury would have been influenced by the inadmissible and prejudicial aspects of Ms Tong’s evidence. Her evidence took on a prominence at trial that meant that it was unrealistic to assume that the directions given were adequate to entirely negate or dispel its prejudicial effects. Put another way, it seems to us that the trial of the appellant would have taken on a quite different (and more favourable) complexion had it not included the distraction of the inadmissible and prejudicial evidence given by Ms Tong. 139 Finally, this is not a case in which a complaint of prejudice was first raised on appeal. To the contrary, counsel for the appellant raised her concerns on several occasions following Ms Tong’s unexpected reference to Fly D being assaulted by the appellant. She made two applications for a mistrial based on the prejudicial effect of this evidence. Whilst this is not, of course, determinative of the merits of the appeal, it is consistent with the prejudice relied upon being a matter which was apparent at trial, rather than being a concern which only emerged upon the drafting of grounds of appeal. 140 In our view, the trial miscarried. Ground 2 has been made out. Having reached this view, it is not necessary to reach a concluded view as to whether Ground 4 has also been made out. Conclusion 141 For the reasons given, we grant permission to appeal. We allow the appeal, set aside the verdict of guilty and order a retrial. -- 28 of 28 --