BENJAMIN DONALD ANTHONY ALLAN v THE KING [2025] SASCA 54

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR AUXILIARY JUDGE BARRETT) DCCRM-22-001563 Appellant: BENJAMIN DONALD ANTHONY ALLAN Counsel: MR A RICE - Solicitor: BRIAN DEEGAN LAWYERS Respondent: THE KING Counsel: MR W SCOBIE WITH MS E NOONE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/03/2025 File No/s: SCCRM-24-025132 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. ALLAN v THE KING [2025] SASCA 54 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 22 May 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF GENERAL CONDUCT OF TRIAL Appeal against conviction. The appellant was found guilty of two counts of aggravated robbery, one count of theft, one count of assault and one count of possessing a firearm without a licence. The prosecution case was that the appellant committed a series of offences at three pharmacies. The prosecution relied on circumstantial evidence to prove the appellant was the assailant on each occasion and that he possessed a firearm. It was alleged that this firearm was used in two of the incursions at the pharmacies. The appellant raised two interrelated issues on appeal: • whether the judge erred in giving directions to the effect that evidence in support of each count was cross-admissible in respect of every other count (Ground 1); and • whether the judge’s directions in relation to all counts were inadequate and occasioned a miscarriage of justice (Ground 3). Ground 2 was abandoned prior to the hearing. Held (by the Court) granting permission to appeal but dismissing the appeal: -- 1 of 16 -- 1. Having regard to the real issues at trial and the fact the defence at trial sought no more than a general direction against propensity reasoning, leave to appeal on Ground 1 is refused. 2. The directions adequately discharged the trial judge’s obligations under s 34R of the Evidence Act 1929 (SA) to identify and explain the permissible and impermissible uses of the evidence, having regard to the real issues at the trial. Criminal Law Consolidation Act 1935 (SA) ss 20(3), 134, 137; Firearms Act 2015 (SA) s 9(1); Evidence Act 1929 (SA) ss 34P, 34R, referred to. R v Armstrong (1990) 54 SASR 207; R v Copeland [2010] SASCFC 11; Sutton v The Queen (1984) 152 CLR 528; R v C, CA [2013] SASCFC 137; McRoberts v The King [2024] SASCA 92; Alford v Magee (1952) 85 CLR 437; Perara-Cathcart v The Queen (2017) 260 CLR 595; Huynh v The Queen (2013) 87 ALJR 434; JGS v The Queen [2020] SASCFC 48; R v Tran [2017] SASCFC 99; Rezaei v The King [2024] SASCA 150; R v Dhir (2019) 133 SASR 452, considered. -- 2 of 16 -- ALLAN v THE KING [2025] SASCA 54 Court of Appeal – Criminal: Livesey P, Bleby and David JJA 1 THE COURT: This is an appeal against conviction. On 15 February 2024, a jury in the District Court of South Australia found the appellant guilty of: • two counts of aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Counts 1 and 3); • one count of theft contrary to s 134 of the CLCA (Count 2); • one count of assault contrary to s 20(3) of the CLCA (Count 4); and • one count of possessing a firearm without a licence contrary to s 9(1) of the Firearms Act 2015 (SA) (‘Firearms Act’) (Count 5). 2 The prosecution case was that the appellant committed a series of offences at three pharmacies. Count 1 occurred at the Trinity Medical Centre on 31 October 2021. Count 2 occurred at the National Pharmacy at Ingle Farm on 2 November 2021. Counts 3 and 4 occurred at a pharmacy at Hewett on 3 November 2021. The prosecution relied on a considerable amount of circumstantial evidence to prove the appellant was the assailant on each occasion and that he possessed a firearm. This evidence comprised, primarily, eyewitness testimony, CCTV evidence seized from each of the pharmacies and the appellant’s home, evidence of a firearm seized from the appellant’s then-partner’s car and evidence of DNA analysis of a face covering recovered from the Hewett Pharmacy. The appellant did not give evidence. 3 The appellant raises, broadly, two complainants on appeal: • that the judge erred in giving directions to the effect that evidence in support of each count was cross-admissible in respect of every other count (Ground 1); and • that the judge’s directions in relation to all counts were inadequate and occasioned a miscarriage of justice (Ground 3). 4 The appellant abandoned Ground 2 prior to the hearing. The particulars to Ground 3 complain that the judge did not identify the similarities and differences in the links between the counts and did not constrain the permissible use of the discreditable conduct evidence such that there was an appreciable risk the jury would engage in impermissible propensity reasoning. -- 3 of 16 -- [2025] SASCA 54 The Court 2 Background Count 1: Trinity Medical Centre 5 On the morning of 31 October 2021, Mr Casson was working at the Trinity Medical Centre pharmacy as the pharmacist in charge. A man walked into the store just after it had opened at 10:00 am. The man approached the counter where Mr Casson was filling a script and demanded that Mr Casson give him the money in the till. He then raised and pointed the barrel of a gun at Mr Casson’s head. 6 A customer, Mr Carpentieri, gave evidence that the gun appeared ‘army green’ and half a metre in length. This described appearance was similar to that of the firearm seized from within a silver Commodore at the appellant’s address on 5 November 2021. 7 The man told Mr Casson to open the till and ‘don’t touch any other buttons’. The man indicated that he only wanted the notes and not the coins. When Mr Casson opened the till, the man looked in and said, ‘Is that all?’ Mr Casson explained they had only just opened. The man then asked for Mr Casson’s wallet. Mr Casson gave the male the cash from his wallet, which he put, with the other cash, in a black vinyl bag. The man left the store, fleeing towards Waterloo Corner Road. Another witness, Ms Enoka, filmed the man fleeing the scene. On the prosecution case, this was consistent with the man heading towards Waterloo Corner Road. 8 The witnesses described the man to be about six foot tall, Caucasian and in a grey or brown ‘hoodie’ and long pants. This clothing was similar to clothing worn by the appellant in photographs on his mobile phone. The man’s face was covered by a red cloth that had some type of pattern in it. Mr Casson gave evidence that the visible part of the gun barrel was black. The gun was covered with a red and white striped tea towel. 9 At the approximate time the robbery was committed, the appellant’s phone was connected to the Salisbury North cell tower. The Trinity Medical Centre is within an approximately one-kilometre radius of this tower. 10 The appellant’s partner at the time of the offending, Ms Platt, gave evidence for the prosecution. She said that she picked the appellant up on that day between 10:00 am and 11:00 am from Waterloo Corner Road. They went to a Smokemart. CCTV from the Smokemart was obtained and tendered at the trial which showed the appellant wearing slightly different clothing from that captured on CCTV at the Trinity Medical Centre. 11 CCTV at 122 McKenzie Road captured the appellant returning to his home address carrying a similar bag to the one that was alleged to have been used at the robbery. -- 4 of 16 -- [2025] SASCA 54 The Court 3 Count 2: Ingle Farm National Pharmacy 12 On 2 November 2021, Ms Petek was the store attendant at the National Pharmacy in Ingle Farm. She was the sole witness in relation to Count 2. At about 4:00 pm, a man entered the store and walked straight to the counter. He handed her a plastic supermarket bag and demanded cash. Ms Petek took the money out of the till and placed it in the bag. She asked the man whether he wanted the coins. He said, ‘just give me that [bag]’. He told her not to press anything until he was out of the store. He then left the store. 13 Ms Petek described the man as being about six foot tall. He was wearing a hoodie and black tracksuit pants. The hood was over his head. On the prosecution case, this was the same beige hoodie the appellant wore when committing the offending the subject of Count 1. The man was also wearing a face mask that covered his nose and his chin. CCTV showed him wearing a hi-vis top underneath the hoodie. 14 CCTV from the appellant’s home address captured the appellant leaving home in a silver vehicle about half an hour before the theft. He was wearing a hi-vis top. CCTV captured a similar silver vehicle arriving at a carpark in the vicinity of the pharmacy just prior to the theft. The prosecution alleged that the hoodie worn by the appellant, which was captured on CCTV, was similar to a hoodie the appellant was wearing in a photo on his mobile phone. The jury were asked to compare known photographs of the appellant from his mobile phone with still images of the male offender. 15 The appellant’s phone connected to a cell tower at Craigmore at the time this alleged robbery was committed. Craigmore is a significant distance from Ingle Farm. The prosecution case was that the appellant intentionally left his phone at home on this occasion. Counts 3 and 4: Hewett Pharmacy 16 At around 3:00 pm on 3 November 2021, Ms Shaji was working as a pharmacy assistant at the Hewett Pharmacy. She was serving a customer, Ms Waldhuter, when a man entered the store. Ms Shaji said that the man was wearing a bandana. Mr Tee, the pharmacist, said that the man was wearing a grey mask covering his nose and his mouth. 17 Mr Tee and Ms Shaji both noticed the handle of a firearm protruding from a Coles bag. They gave evidence that the firearm appeared to be green in colour. 18 The man demanded cash. Ms Shaji went to the till and the man gave her a black cloth bag with a pull string. Mr Tee gave evidence that the man said to Ms Shaji ‘put everything in the bag. Hurry up. Don’t push the button or I will shoot you’. Ms Shaji put the money in the black bag. She started to put the coins from the till in the bag, but the man told her that he did not want the coins. -- 5 of 16 -- [2025] SASCA 54 The Court 4 Ms Waldhuter, who was sitting on the shop side of the counter, observed the man to draw the firearm from the Coles bag and hold it in his left hand. 19 The man left the store. Mr Tee followed and attempted to stop him from leaving the store. Mr Tee attempted to grab the Coles bag with the firearm in it and the man punched him on the left side of his face (Count 4). Mr Tee fell to the ground and the man ran from the pharmacy. 20 Ms Waldhuter said that during the altercation between Mr Tee and the man, the gun fell onto the floor. The man’s face covering also fell onto the floor. The man grabbed the gun before walking out of the pharmacy. 21 The Crown witnesses described the man as about six foot tall and Caucasian. CCTV confirmed, consistent with the eyewitness accounts, that he was wearing shorts, socks pulled up to his calves, a hi-vis shirt under a grey hoodie and a black cap. CCTV from the Craigmore Smokemart showed the appellant to have tattoos on his arm and calf. On the prosecution case, these tattoos explained why the appellant was wearing long sleeves and either track pants or socks covering his calves in Counts 1 to 4. 22 The face covering that had fallen to the floor at the Hewett pharmacy was seized and examined. It was a tea towel. A DNA profile located on the tea towel gave extremely strong support for the proposition that the appellant was a contributor. 23 The prosecution asked the jury to draw comparisons between the firearm captured in the CCTV footage and the image of a firearm seized from the appellant’s address. The prosecution submitted that these images were remarkably similar. 24 The appellant’s phone did not connect to any network between 2:06 pm and 3:19 pm on the day of this robbery. 25 The prosecution tendered evidence of the nearby Willaston Safe-T-Cam. On the prosecution case, this showed a strikingly similar silver vehicle to the one seized from the appellant’s address traveling at 3:03 pm, four minutes after the alleged robbery. 26 The prosecution led evidence that a silver car of similar appearance was in the vicinity of the pharmacies the subject of Counts 2 and 3. A silver Commodore was owned by and registered to the appellant’s then partner, Ms Platt. Ms Platt gave evidence that the appellant would occasionally use the car. Count 5: Possession of a firearm without a licence 27 On 5 November 2021, police seized numerous items from the appellant’s house at Elizabeth. This included the silver Commodore registered to Ms Platt, two hi-vis vests, a pair of grey shorts and a black cap. Police searched the -- 6 of 16 -- [2025] SASCA 54 The Court 5 Commodore. They discovered a firearm hidden in the boot. The firearm was dark green and about 60-70cm in length. It was wrapped in black plastic with a string. Ms Platt denied ever possessing a firearm or having stored the firearm in the car. 28 It was an agreed fact that the appellant did not hold a firearms licence at the relevant times. CCTV footage from the appellant’s home address showed the appellant using the car and checking the boot of the vehicle on occasion. 29 Based on comparisons between the firearm, direct evidence from the witnesses at the Trinity Medical Centre and the Hewett Pharmacy and the CCTV footage, the prosecution case was that the firearm found in the boot of the silver Commodore was used to commit Counts 1 and 3. 30 The results of DNA analysis of numerous swabs of the firearm were either that the mixed profile recovered was too complex, or that there was insufficient DNA to be recovered. The Defence Case 31 The primary issue at trial was whether the prosecution had proved beyond reasonable doubt that the appellant was the offender in each case. The appellant tendered a series of payslips to suggest that he had no financial motive to commit the offences and that his financial circumstances made it improbable that he did. The appellant also pointed to what he asserted were deficiencies in the prosecution case. These included the inconsistencies in eyewitness descriptions of the firearm, mask and bag and that the descriptions of the offender were consistent with descriptions of many members of the community. The appeal 32 The issues on Grounds 1 and 3 are particularised as distinct errors but they have a degree of overlap as they concern the cross-admissibility of discreditable conduct evidence. 33 The judge gave orthodox directions on separate consideration of each of the charges and circumstantial evidence. He then directed the jury on cross-admissibility as follows: Ladies and gentlemen, I now address you on the topic that we call cross-admissibility. I have said that you should give separate consideration to each charge and that is important. However that does not mean that in considering an individual charge, you have to disregard the evidence you have heard relating to the other charges. You may have regard to the evidence you have heard in respect of the other charges. You may consider, for example, whether there is any important similarity between the evidence of one or more of the charges, to see if that evidence makes it more likely that the charge that you are considering is proved. Alternatively, your consideration of the evidence of the other charges might lead you to think the reverse. The evidence of the other charges may lead you to conclude that the one -- 7 of 16 -- [2025] SASCA 54 The Court 6 you are considering might have been done by a different person, or the evidence of the other charges might simply not be sufficient to lead you to find proved the charge you are then considering. You might consider whether there is an underlying unity about the events at the three pharmacies, or a similarity of modus operandi. It might seem improbable that they were not committed by the same person. There might be, in each case, similar links between the events at the pharmacies and the accused. It might seem improbable that that same person who committed all three was not the accused. Alternatively, you might find that there are such differences in the three events, or differences in the links with the accused, that you are left in a reasonable doubt on one or more of the charges. My point is that while you have to consider each charge separately, you may take into consideration all the evidence that you have heard. The other evidence you have heard may remove any doubt that you have about the one that you are considering, or it may not. However, you are perfectly free to reason in that way. It is important, though, that I stress an impermissible way of reasoning. It would be wrong and unfair to reason, for example, that if you were satisfied beyond reasonable doubt of the accused’s guilt on one matter, then that makes him a bad person and, for that reason, he is more likely to have committed one or more of the other offences. That reasoning is wrong and unfair. That is the impermissible use of the other evidence. 34 Both complaints on appeal take issue with this direction. Whether the judge erred in his direction on cross-admissibility (Ground 1) 35 The appellant’s first complaint was that this direction, which in its terms encompassed all evidence being cross-admissible in respect of each charge, failed to distinguish evidence that was not cross admissible in respect of particular charges. Specifically, he submitted that the evidence that supported Count 2 was not admissible for any non-propensity purpose in respect of Counts 4 and 5, and vice versa. Thus, no firearm was involved in respect of the theft the subject of Count 2 at the Ingle Farm pharmacy. Neither was there any violence or threat of violence. He submitted that the most that could be said as between the counts was the common fact of the silver car being seen in the vicinity of the Ingle Farm National Pharmacy and then in the vicinity of the Hewett Pharmacy after that robbery, and the temporal link of a couple of days. 36 Count 5 alleged possession of a firearm without a licence contrary to s 9(1) of the Firearms Act. As the appellant submitted, the evidence supporting that charge was not directly relevant to Count 2. Similarly, the appellant submitted that the evidence relating to Count 2 had no non-propensity use in respect of the possession offence in Count 5. He submitted that for the evidence in respect of each of the offences to be cross-admissible (and here we understood him to be referring to the evidence relating to Count 2 on the one hand, and the other -- 8 of 16 -- [2025] SASCA 54 The Court 7 offences, but in particular Count 5, on the other), it was necessary to invoke some form of impermissible propensity reasoning. 37 That being the case, in the appellant’s submission, the general direction on cross-admissibility failed to distinguish the counts where the evidence was not cross-admissible, most obviously being as between Counts 2 and 5. 38 It is necessary to make some preliminary observations. First, there was no application to sever the counts. 39 Secondly, the prosecutor outlined the steps for the jury in her address as follows: Firstly, I’ll outline the evidence which I suggest establishes that each of these offences occurred. So that is why you can be satisfied beyond a reasonable doubt that these crimes were committed. Secondly, I will move on to address you on why it is the prosecution says the same male offender was involved in each of these crimes. Third, and finally, I will address you on the large body of circumstantial evidence … which I suggest, in combination, proves beyond a reasonable doubt that the accused is the male responsible. 40 This structure did not invite propensity reasoning. We are not persuaded that what then followed strayed into that form of reasoning, either. Specifically, when addressing the evidence relevant to the prosecution case that the same man committed each offence, the prosecutor was careful to couch her language in terms of similarity and improbability. 41 For example, the prosecutor pointed to the similarity of the businesses targeted and the close timing and sequence of the offences. She observed that all civilian witness gave an account of the man being quite tall, around the six-foot mark, Caucasian and without an accent. Later, she noted than on each occasion, the man asked the relevant staff member for cash and said he did not want coins. He told each staff member not to push any buttons. 42 Then when it came to the third stage foreshadowed, that it was the appellant who was responsible, the prosecutor stayed with the language of improbability and possibility. 43 The prosecution case was circumstantial, that on the accumulation of all the evidence, the appellant was responsible for the offending. In this regard, the prosecutor, when addressing the judge on the appropriate approach to the topic of cross-admissibility, relied on R v Armstrong1 and R v Copeland.2 1 (1990) 54 SASR 207. 2 [2010] SASCFC 11. -- 9 of 16 -- [2025] SASCA 54 The Court 8 44 In R v Armstrong,3 Cox J referred to the following passage in Wigmore, Evidence in Trials at Common law, with respect to what is now often referred to as improbability reasoning with respect to proof of intent:4 To prove intent, as a generic notion of criminal volition or wilfulness, including the various noninnocent mental states accompanying different criminal acts, an entirely different process of thought is employed. The argument here is purely from the point of view of the doctrine of chances – the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. 45 In R v Copeland,5 Duggan J explained the approach to be taken in cases like the present, where there were a number of offences over a closed period of time:6 A convenient way for the jury to conduct its deliberations would have been to consider first whether it had been established that the same person committed all offences. The trial Judge explained to the jury that this was the first step in the prosecution case when she said in her summing up: The prosecution says that the essential steps of the prosecution case were firstly that each of the robberies were by the same person and that this accused was the offender and those things they seek to prove beyond reasonable doubt. However, this was not a case in which the evidence in relation to one charge could be used in relation to another charge only if it had been established that the appellant was guilty in relation to the first charge. The evidence which linked the appellant to the offences was identified for the jury from the commencement of the case and the trial Judge referred to it in the course of her summing up. Reference has been made to this evidence in the discussion on the first ground of this appeal. (Footnote omitted) 46 In Copeland, Duggan J considered that there was an ‘underlying unity’ in the circumstance of the robberies. He identified the approximate time of the offences, the modus operandi on each occasion, aspects of the offender’s dress, the use of a sawn-off shotgun and descriptions of the vehicle involved. Then, the gun and the car were items of evidence that linked the appellant to the robberies.7 In those circumstances, the evidence was cross-admissible. 3 (1990) 54 SASR 207. 4 Chadbourn Rev, Vol II, par 302, cited in R v Armstrong (1990) 54 SASR 207 at 214. 5 [2010] SASCFC 11. 6 R v Copeland [2010] SASCFC 11 at [39]-[40]. 7 R v Copeland [2010] SASCFC 11 at [29]. -- 10 of 16 -- [2025] SASCA 54 The Court 9 47 Similarly, in Sutton v The Queen,8 Dawson J articulated the test for cross-admissibility:9 In my view it was for the trial judge to determine admissibility by deciding whether the evidence was, if accepted, such that a reasonable jury ought to conclude that the similarity between the descriptions of the various offences was beyond mere coincidence and that there was no reasonable explanation of that similarity consistent with the innocence of the accused. 48 Since these cases, Parliament has enacted s 34P of the Evidence Act 1929 (SA) (‘Evidence Act’) which provides, relevantly: 34P—Evidence of discreditable conduct (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. 49 The threshold test for admissibility of similarity of account reasoning under s 34P(2)(a) is now simply that the probative value of the evidence outweighs its prejudicial effect. In R v C, CA,10 Kourakis CJ explained the probative value of similarity of account reasoning in this context:11 The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the 8 (1984) 152 CLR 528. 9 Sutton v The Queen (1984) 152 CLR 528 at 567. 10 [2013] SASCFC 137. 11 R v C, CA [2013] SASCFC 137 at [61]-[65]. -- 11 of 16 -- [2025] SASCA 54 The Court 10 hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. … The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complainants might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged. 50 In McRoberts v The King, this Court explained:12 Where the evidence of multiple complainants is sought to be adduced as cross-admissible on the basis of similarity of account reasoning, the focus of the analysis must be on the circumstances of the offending as described by each complainant and the degree of similarity in their accounts. The strength of the evidence may lie in the ‘unusual features’ or ‘underlying unity’ or ‘system’ or ‘pattern’ established by the evidence. However, it is not necessary to establish a ‘striking similarity’ between the accounts or a unique modus operandi for the evidence to meet the threshold for admissibility. What is required is that the similarities in the complainants’ accounts raise, as a matter of common sense and experience, the improbability of each complainant having independently fabricated or imagined their allegations. 51 In the present case, defence counsel did not seek a direction that any evidence was not cross-admissible as between the counts. Counsel’s concern was, understandably, the need for clear directions requiring that separate consideration be given to the counts. Counsel did not object or seek any redirection following the direction on cross-admissibility. 52 As the appellant emphasised, the evidence of the firearm was not directly relevant to Count 2. However, if the jury were satisfied that the same man had committed all three incursions on the three pharmacies, the question was then whether the accused was that person. There was evidence that the appellant was in possession of a firearm (directly relevant to Count 5) that was consistent with the description of a firearm given in respect of Counts 1 and 3. The jury could reason, looking at all of the evidence, that this was the firearm used in Counts 1 and 3. Of course, the firearm was not the only piece of evidence linking the appellant to any of the incursions; the DNA analysis of the face covering was a particularly strong piece of evidence on Counts 3 and 4. If the jury were satisfied that the same person committed all three offences, it was open to conclude the appellant was also the person responsible for Count 2. 12 McRoberts v The King [2024] SASCA 92 at [39]. -- 12 of 16 -- [2025] SASCA 54 The Court 11 53 The judge’s direction on cross-admissibility contained examples consistent with the approach indicated in Copeland. The direction itself did not single out the relevance of evidence to particular charges. However, the judge did then go on to summarise, in detail, the prosecution case on the evidence relevant to each charge. The complaint on appeal, however, is squarely located in the specific direction on cross-admissibility and the failure in that direction to tailor the direction in respect of particular counts. 54 The consequence of not tailoring the direction, in the appellant’s submission, was that the jury was left with a general direction of cross-admissibility from which it might reason on an impermissible propensity basis. Specifically, they might reason that because he was guilty of, for example, Count 5, he was more likely to be guilty on Count 2. 55 The appellant submitted that in those circumstances, it was necessary to give an express direction applying s 34P(3) of the Evidence Act. He submitted that the circumstances did not necessarily require a severance of the counts, but that a direction reflecting the impermissible use of the evidence on Count 2 as proving the circumstances of Count 5, and vice versa, was required. 56 The High Court has explained and reinforced that a judge is required to provide a jury with directions that give guidance on the real issues in the case.13 Section 34R(1) addresses the directions required to give effect to s 34P: 34R—Trial directions (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. 57 In Perara-Cathcart v The Queen, the Court explained:14 The question is whether the trial judge's directions were sufficient to identify the permissible and impermissible uses of the appellant's admission that the cannabis found at his house belonged to him. Whether those directions conform to the requirements of s 34R(1) can only be determined having regard to the real issues in the case. In Huynh v The Queen15, French CJ, Crennan, Kiefel, Bell and Gageler JJ reiterated that the general responsibility of the trial judge to direct the jury on matters of law is as stated in Alford v Magee16; that is, the trial judge is obliged: “to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues.” (Footnotes in original) 13 Alford v Magee (1952) 85 CLR 437 at 466. 14 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [53]. 15 (2013) 87 ALJR 434 at 441 [31]; 295 ALR 624 at 631-632. 16 (1952) 85 CLR 437 at 466. -- 13 of 16 -- [2025] SASCA 54 The Court 12 58 In JGS v The Queen,17 Lovell J said in application of this principle to s 34R(1):18 As discussed, the nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial. What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence. Ultimately, when considering the adequacy of the directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.19 (Footnote in original) 59 The question is always, ultimately, whether the directions given meet the obligation to protect against prejudicial reasoning by identifying the proper uses that arise in the context of the case.20 60 As explained earlier, and as submitted by the respondent, the prosecution in the present case did not rely on any evidence as demonstrating a propensity to offend. It invited the jury to engage in circumstantial reasoning to find that on all of the evidence, the appellant was responsible for the charged offending. 61 The defence sought a direction to the effect that if the jury were to find any one count proved, they could not engage in propensity reasoning from that with respect to any of the other counts. In this regard, counsel indicated that he was ‘thinking particularly about the firearm’. This was not contentious. The direction given in response to this comprises the final two paragraphs of the passage extracted above. That followed the direction that was consistent with the guidance given in Copeland. 62 Given the careful approach by the prosecution not to rely on propensity reasoning, and defence counsel’s clear acquiescence to the form of the directions, the judge’s general direction on cross-admissibility, which included the warning against propensity reasoning, was adequate to address the real issues in the trial. There was no real risk that the jury would engage in impermissible propensity reasoning to the effect, for example, that because the appellant was in possession of the firearm the subject of Count 5, he was more likely as a matter of propensity to have committed Count 2, in which no firearm was involved. 63 It was necessary for the judge to find a simple and cogent way to explain to the jury their task on the circumstantial case presented by the prosecution. We are not persuaded that in the circumstances of the issues arising in the case, it was necessary for the judge to go further and disclaim the direct relevance of certain 17 [2020] SASCFC 48. 18 JGS v The Queen [2020] SASCFC 48 at [97]. 19 R v Tran [2017] SASCFC 99 at 38 [163] per Doyle J. 20 Rezaei v The King [2024] SASCA 150 at [57]; R v Dhir (2019) 133 SASR 452 at [54]. -- 14 of 16 -- [2025] SASCA 54 The Court 13 pieces of evidence to certain counts, merely to avoid the wholly theoretical risk of propensity reasoning. 64 The defence at trial having sought nothing more than a general direction against propensity reasoning, even while noting specifically the limits attending the evidence of the firearm, we refuse leave to appeal on Ground 1. Whether the judge’s directions about the evidence relating to all counts were inadequate (Ground 3) 65 The appellant complained that the judge’s directions about the evidence relating to all counts were inadequate for the purposes of s 34R(1). Specifically, he took issue with the passages: However that does not mean that in considering an individual charge, you have to disregard the evidence you have hard relating to the other charges. You may have regard to the evidence you have heard in respect of the other charges. You may consider, for example, whether there is any important similarity between the evidence of one or more of the charges, to see if that evidence makes it more likely that the charge that you are considering is proved. 66 The appellant submitted that these directions did not highlight the important similarities and differences in the links between the counts that went to the issue of cross-admissibility; again, he gave the example of the lack of similarity between the evidence relevant to Counts 2 and 5, respectively. He submitted that the direction lacked any explanation of how the jury was to reason as to what made up the underlying similarity on each of the counts. Further, he complained that the judge did not constrain the permissible use of the discreditable conduct evidence, such that there was an appreciable risk the jury would engage in impermissible propensity reasoning. 67 The appellant then took issue with the following paragraph: It might seem improbable that they were not committed by the same person. There might be, in each case, similar links between the events at the pharmacies and the accused. It might seem improbable that that same person who committed all three was not the accused. 68 Counsel placed emphasis on the final sentence of this paragraph. He argued that this focused the jury’s attention on improbability reasoning as to the unlikelihood that the offending was committed by someone other than the accused himself, not to the question of whether the offending was committed by the same person. This paragraph left open the possibility that the jury would engage in an impermissible form of propensity reasoning, on the cross-admissible evidence, to be satisfied of the identity of the accused. Without further direction, it gave rise to the danger that the jury would reason that if the accused had committed the offence alleged on count 1, he also committed the offence on count 2 and count 3, and vice versa. -- 15 of 16 -- [2025] SASCA 54 The Court 14 69 This paragraph is certainly economically expressed. It would have benefited from a greater extrapolation of the steps to be taken as outlined in R v Copeland.21 However, economical as it was, it was clearly expressed. The judge first directed the jury to consider the first question relevant to determining cross-admissibility, whether the same person committed each offence: ‘it might seem improbable that the [offences] were not committed by the same person’. He then indicated, consistently with the second question, ‘there might be, in each case, similar links between the events at the pharmacies and the accused’. The judge brought these two questions together in the last line of the paragraph, emphasised by the appellant: ‘It might seem improbable that that same person who committed all three was not the accused’. 70 The warning against impermissible reasoning, discussed above, followed closely after this direction. The judge then gave a comprehensive summary of the evidence relevant to each count. 71 Each of the impugned directions must be read in the full context of the judge’s summing up. Further, for the reasons discussed above, this complaint must be considered in the context of the issues joined at trial. We accept that the judge took a broad and economical approach in the impugned paragraphs of the cross-admissibility direction. However, having regard to the real issues at trial, discussed earlier, we are not persuaded that this created a risk that the jury would engage in any form of impermissible propensity reasoning to the effect that the similarities in the evidence made it more likely that the offender was the accused. Again, defence counsel at trial sought no further direction or redirection. 72 We are satisfied that the directions adequately discharged the trial judge’s obligation under s 34R of the Evidence Act to identify and explain the permissible and impermissible uses of the evidence in accordance with the real issues in the case as it was contested at trial. 73 We grant leave to appeal on Ground 3 but dismiss the appeal. Conclusion 74 We refuse leave to appeal on Ground 1. We grant leave to appeal on Ground 3. We dismiss the appeal. 21 [2010] SASCFC 11. -- 16 of 16 --