EMILJAN LUKAJ v THE KING [2025] SASCA 110

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE FULLER) DCCRM-18-1507 Appellant: EMILJAN LUKAJ Counsel: MR O MORRIS - Solicitor: NOBLET & CO Respondent: THE KING Counsel: MS A CAIRNEY WITH MS A O’SULLIVAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 16/09/2025 File No/s: SCCRM-24-050636 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. LUKAJ v THE KING [2025] SASCA 110 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Stanley and the Honourable Auxiliary Justice Mullins) 2 October 2025 EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE Appeal against conviction. The appellant was convicted of nine counts of trafficking and cultivation in relation to 523 cannabis plants and 37 kilograms of harvested cannabis located by police across seven rental properties. The prosecution case was that the appellant was involved in sourcing the rental properties in which the cannabis was located and in financing the cultivation operations. It was also alleged that the appellant was involved in the sale of the harvested cannabis by storing, preparing and drying it, or at least by providing the properties at which it was stored and prepared. The appellant appeals on two grounds: (i) that the judge’s directions in relation to the permissible and impermissible uses of the cross-admissible evidence of discreditable conduct were inadequate, and (ii) that a miscarriage of justice resulted from an in-court identification of the appellant by a witness. Held, per the Court, granting permission to appeal, but dismissing the appeal: -- 1 of 18 -- 1. The judge’s directions on the discreditable conduct evidence were adequate to ensure the jury understood the permissible and impermissible uses that could be made of that evidence and hence for compliance with s 34R of the Evidence Act 1929 (SA). 2. The risk of prejudice associated with the in-court identification of the appellant was adequately addressed by the judge’s direction to disregard this evidence. Controlled Substances Act 1984 (SA) ss 32(1), 32(2), 33B(1), 33B(2), 33B(3); Evidence Act 1929 (SA) s 34AB(3), 34R, referred to. Adamson v The King [2024] SASCA 91; Alexander v The Queen (1981) 145 CLR 395; Al-Hashimi v The Queen (2004) 181 FLR 383; Brawn v The King [2025] HCA 20; Davies v The King (1937) 57 CLR 170 ; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Gilbert v The Queen (2000) 201 CLR 414; Grbic v Pitkethly (1992) 38 FCR 95; JGS v The Queen [2020] SASCFC 48; Jokic v Hayes (1990) 53 SASR 530; Lukaj v The King [2022] SASCA 135; MDP v The King [2025] HCA 24; Perera-Cathcart v The Queen (2017) 260 CLR 595; Preston v The Queen (2013) 116 SASR 522; R v Andrews (No 4) [2005] SASC 300; R v Britten (1988) 51 SASR 567; R v Clark (1996) 91 A Crim R 46; R v Dickman (2017) 261 CLR 601; R v Gassy [2004] SASC 338; R v Gorham (1997) 68 SASR 505; R v Tran [2017] SASCFC 99; Sears v The Queen (2020) 137 SASR 219; Strauss v Police (2013) 115 SASR 90, considered. -- 2 of 18 -- LUKAJ v THE KING [2025] SASCA 110 Court of Appeal – Criminal: S Doyle JA, Stanley JA and Mullins AJA 1 THE COURT: The appellant and his co-accused brother were charged with cultivation and trafficking offences in relation to 523 cannabis plants and 37 kilograms of harvested cannabis located by police across seven rental properties in the northern and north-eastern suburbs of Adelaide. 2 In 2021, the appellant and his brother were tried and convicted on all nine counts. In 2022, they successfully appealed their convictions and the matter was remitted for re-trial before a different judge.1 3 Following the re-trial, the jury convicted the brother of some, but not all counts, and the appellant was again convicted on all nine counts. The appellant now seeks permission to appeal these convictions. 4 The prosecution case was that the appellant was responsible for sourcing and renting all seven of the properties in which cannabis was being cultivated, and that he provided finance for the cultivation operations, including by acquiring equipment and materials used in the cultivation process. As to the trafficking offences, the prosecution case was that the appellant took part in the sale of the harvested cannabis found at two of the premises by storing, preparing and drying it, or by providing the premises at which it was stored and prepared. 5 The issue at trial was identity, and the prosecution case included identification evidence from the landlords from whom the various premises had been rented. 6 The appellant seeks permission to appeal his conviction on two grounds. The first challenges the adequacy of the judge’s directions in relation to the permissible and impermissible uses of the cross-admissible evidence of the discreditable evidence relating to the various cannabis operations. The second asserts a miscarriage of justice by reason of an in-court identification of the appellant by one of the landlord witnesses, Mr Tran. 7 For the reasons which follow, we grant permission to appeal, but dismiss the appeal. Background 8 In 2016, searches were conducted of seven properties across the northern and north-eastern suburbs of Adelaide. Police found a large number of cannabis plants, and also found harvested cannabis at two of the properties. The appellant and his 1 Lukaj v The King [2022] SASCA 135 (Livesey P, Lovell and Bleby JJA). -- 3 of 18 -- [2025] SASCA 110 The Court 2 brother were charged with multiple cultivation and trafficking offences under the Controlled Substances Act 1984 (SA) (‘CSA’), as detailed below. 9 There was no dispute at trial as to the nature or quantity of the cannabis plants and material found at each of the properties (referred to as ‘grow houses’). There was also no dispute that the cannabis had been cultivated for sale. The only issue in relation to each of the nine counts alleged against the appellant was identification; that is, whether the appellant was responsible for the cultivating and trafficking. On the prosecution case, the appellant was the person involved in renting the premises and financing the cultivation operations. His brother was said to have had a more ‘hands on’ role. 10 The following table sets out the detail relating to each of the seven grow houses: Grow House Address Landlord Tenant Cannabis found Lease date Charges Count 1 Churchill Rd, Prospect Khiem/Thi Tran Diego Bonsolli 70 plants 13.10.13 Cultivating CQ2 1 2 Deakin Ave, Hope Valley Peter Fazzini Andrea Ziccone 190 plants 36.5 kg 10.10.13 Cultivating LCQ3 Trafficking LCQ4 2 3 3 Louis Cres, Newton Alexandra Manolakis Andrea Macera 154 plants 15.11.15 Cultivating LCQ 4 4 Lochiel Ave, Campbelltown Zenon Zaniewski Marco Rizzo 37 plants 1.27 kg 30.05.13 Cultivating CQ Trafficking CQ5 5 6 5 Donald St, Campbelltown Sharon Ling Giuliano Piccini 39 plants 14.09.16 Cultivating CQ 7 6 64 Eastern Pde, Ottoway Thi To Simone Rotani 12 plants 28.04.15 Cultivating6 8 7 66 Eastern Pde, Ottoway George/Barbara Papantoniou Simone Dotani 21 plants 08.02.15 Cultivating CQ 9 11 Each property was advertised for rent using the Gumtree website or similar, and was privately managed by the landlord. Some landlords gave evidence that they conducted licence or reference checks prior to entering into the lease agreements. However, it was the prosecution case that, for the most part, these landlords were unsuspecting. In each case, it was agreed that the rent was to be paid directly by the tenant to the landlord by cash deposit to an identified bank account. There were never any issues with the payment of rent. 12 On the prosecution case, the appellant entered into an agreement with each landlord using a false identity, involving the provision of not only false names, but also false phone numbers, references and identification documents. 13 Each landlord gave evidence that they entered into an agreement to lease the property with a male, who gave the names in the table above. On each occasion, the male was accompanied by a female, whose name was variously given as 2 Cultivating a commercial quantity of controlled plants for sale, contrary to s 33B(2) of the CSA. 3 Cultivating a large commercial quantity of controlled plants for sale, contrary to s 33B(1) of the CSA. 4 Trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the CSA. 5 Trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the CSA. 6 Cultivating controlled plants for sale, contrary to s 33B(3) of the CSA. -- 4 of 18 -- [2025] SASCA 110 The Court 3 Katarzyna (grow house 2), Kasia (short for Katarzyna) (grow house 4), Katrina (grow house 5) and Maria (grow houses 6 and 7). 14 There was a common theme amongst the landlords’ descriptions of both the male and female. The male gave an ‘Italian sounding’ name and spoke in ‘broken’ English, and the female spoke in English but with a strong accent, or a strong European accent. Most of the landlords described the man’s physical appearance in relatively consistent terms. Some described him as having a European appearance, with olive skin, less than six foot in height, and with a solid or medium build. Those who described his hair said he had brown hair, with some adding that his hair was thinning or that he was slightly balding. Several of the landlords described him as neatly dressed. Three of the landlords gave evidence that the man told them he was employed as a painter. It was an agreed fact that the appellant’s occupation between 2014 and 2016 was as a painter. 15 All of the landlords participated in a photographic identification procedure. Four of them identified the appellant as the person to whom they had leased their property. 16 Brevet Sergeant Rumsey gave evidence that he made numerous enquiries of police systems, and State and national registers, in an effort to identify the males using the names provided to rent the properties. He was unable to identify any persons by those names. 17 The evidence suggested several similarities in the hydroponic set-up and equipment used to grow cannabis in each of the grow houses. The prosecution also relied upon a body of forensic evidence consisting of DNA, fingerprint and handwriting evidence. Based on that evidence, it was the prosecution case that: • a DNA profile consistent with the appellant’s profile was located on objects found within grow houses 4 and 7; • fingerprints matching the appellant’s fingerprints were located on a tenancy agreement for grow house 1, a property inspection sheet for grow house 2, a tenancy agreement for grow house 3, and various documents for grow house 4; and • the applicant’s handwriting was located on various documents found at grow houses 4 and 5. 18 The prosecution also relied upon various agreed facts arising out of surveillance evidence, the general effect of which was to suggest that a person (who, on the prosecution case was the appellant) visited a number of the grow houses, and indeed travelled between some of the grow houses. 19 On the prosecution case, it was alleged that the appellant took part in the cultivation and trafficking of the cannabis found at the various houses. As to his cultivation of the cannabis plants, it was alleged that he: sourced and rented the -- 5 of 18 -- [2025] SASCA 110 The Court 4 properties used as grow houses for the purpose of cultivating cannabis that could be sold; paid the rent; and provided finance towards the cultivation operations, including by acquiring equipment and materials used in the cultivation process. As to his trafficking of the cannabis material, it was alleged that he: prepared and grew the cannabis plants for the purpose of sale; stored the cannabis material once harvested; and provided the properties at which the cannabis material was stored. 20 The prosecution case on identity relied in part upon a form of coincidence or improbability reasoning; namely, that the similarities between the circumstances relevant to each of the grow houses and cultivation operations were such that it could be concluded that the same person or people were responsible for each, and that the possibility of the appellant’s innocent association with any of those grow houses or operations could be excluded as so improbable as to be not reasonably possible. 21 Whilst articulated in slightly differing terms at times, this aspect of the prosecution case had three limbs. 22 The first limb was that the similarities in the circumstances surrounding the rental of the grow houses and the hydroponic set-ups for each of the charged counts were such that the only probable, or only reasonably possible, explanation was that the same person was responsible for each. The prosecution relied in this respect upon the evidence summarised above as to the similarities in the circumstances in which the properties were leased, and in the descriptions of the man and woman with whom they dealt. 23 The second limb was that, in relation to each grow house, the same man who organised the lease continued to be responsible for the rental of the property, and did so for the purpose of growing and cultivating cannabis for sale. 24 The third limb was that the man described in the first two limbs was the appellant. The prosecution contended that this was an irresistible inference to be drawn from the combination of the fact that he fitted the description given of the man who arranged the rentals (and his wife Katrina fitted the description of the woman accompanying that man), and the other evidence linking the appellant to the grow houses (including the forensic and surveillance evidence). 25 The defence case at trial involved a challenge to the prosecution case on identity. On the defence case, this was a case of mistaken identity. Ground 1: directions on discreditable conduct 26 Ground 1 involves a challenge to the adequacy of the trial judge’s directions in relation to the evidence of the discreditable conduct relating to the various cannabis operations. It involves a complaint that the judge failed to comply with her obligation under s 34R of the Evidence Act 1929 (SA) to identify and explain the permissible and impermissible uses of that evidence. There are two aspects to the appellant’s challenge to the judge’s directions. -- 6 of 18 -- [2025] SASCA 110 The Court 5 27 The first aspect involves a complaint that the judge failed to identify, and to direct the jury in relation to, the impermissible use of some of the discreditable conduct evidence led at trial. The appellant accepts that the judge adequately directed the jury against any impermissible use of the appellant’s conduct in renting properties for the purpose of operating grow houses. However, he contends that the judge failed to identify, and direct the jury against any impermissible use of, his deceptive conduct in arranging the leases for the properties that were used as grow houses. 28 The second aspect involves a complaint that the judge misdescribed the permissible use of the discreditable conduct. In particular, the appellant complains that the judge described the three limbs of the prosecution case as to the permissible use of this evidence in a way that invited the jury to engage in circular reasoning. 29 In addressing these complaints, it is appropriate to commence by summarising the judge’s directions in relation to the discreditable conduct evidence. 30 The judge addressed this evidence in two places in her summing up. Early in her summing up, after emphasising the importance of giving separate consideration to the evidence relating to each of the two accused, and to the evidence relating to each count, the judge directed the jury against impermissible propensity reasoning based upon any evidence or finding of the accused’s involvement in one of the grow houses:7 [1] Also, it is not enough for the prosecution to establish that [the appellant or his brother] were in some way involved in any of the cannabis cultivations the subject of the counts. The prosecution must prove that each accused took part in the operation in the particular way or ways alleged, which are said to constitute the offence of cultivating or trafficking, as the case may be. [2] If you were satisfied beyond reasonable doubt that an accused cultivated one crop at one house for the purpose of sale, you cannot use that finding to reason he must of cultivated a crop at another house because he is the sort of person who is likely to have committed the other offence, or because he has the propensity or is in the business of cultivating cannabis. You cannot use a finding of guilt to reason that it – by virtue of that finding of guilt he must be or likely to be guilty of one or both of the trafficking charges, because he is the sort of person likely to, or has the propensity to, traffic cannabis. [3] The same applies if you were satisfied, for example, that one accused trafficked cannabis at, for example, the count 2 and 3 property. You cannot use that finding as a basis to reason ‘Well, he must have or is more likely to have trafficked at the other property because he is the sort of person who would commit that offence, or he has got the propensity to do so.’ That sort of reasoning is impermissible in this courtroom because it is what is called bad person reasoning; he committed that offence therefore he is a bad person, so he has or is likely to have committed all the rest. And it is propensity reasoning, and that is not permitted in this courtroom. You cannot say ‘Oh look, he is growing cannabis, or cultivated 7 Paragraph numbering added for ease of reference within these reasons. -- 7 of 18 -- [2025] SASCA 110 The Court 6 cannabis, for sale. He has got the propensity to do so, therefore I will find him guilty of one or other of the counts.’ 31 Later in her summing up, the judge returned to the discreditable conduct evidence, and addressed the permissible and impermissible uses of that evidence at some length. Her Honour introduced this topic by reminding the jury of her direction that they consider each count separately, before explaining that there were circumstances in which the evidence of one count might be used in relation to another count: [4] You will recall last week on Friday I summarised the evidence on each count in quite significant detail. What I need to do now is give you some important directions about how you can use evidence on other counts in your evaluation of the evidence that is specific to an individual count. … [5] You may recall that I have been at pains to explain to you the importance and necessity of considering each count separately against each accused with reference to the evidence led on that count against that accused. … [6] What I now need to do is give you some important directions about how, when you are considering the evidence on a particular count, you can take into account evidence relating to another count or counts. 32 The judge said that, before explaining this permissible process of reasoning involving evidence of other counts, she needed to remind the jury of the prosecution case against each of the accused. In relation to the case against the appellant, the judge said: [7] So, the prosecution case, put shortly, is that the seven properties were all rented by the same person and the cannabis crops in those houses were set up by the same person and the cannabis crops in those houses were set up by the same person or persons working together. The prosecution case is that the tenant in each case who rented each property is [the appellant]. [8] The prosecution case is that not only did he facilitate the rental of all of those properties, he did so for the purpose of those properties being used to cultivate the cannabis, the subject of each count. [9] In addition to doing that, the prosecution case is that he had some further involvement of a different kind by providing finance for the cultivation operations relating to the cannabis, the subject of each count, including acquiring equipment and materials used in the cultivation of the cannabis, the subject of each count. [10] In relation to the two trafficking charges it is alleged that his role was to provide the premises at which the cannabis, the subject of the counts, was stored by virtue of the fact that he was the tenant of those premises and that he prepared and dried the cannabis and then stored it at the premises once harvested. 33 After describing the case against the appellant’s brother as involving an allegation that he had a ‘hands-on’ role in relation to the cannabis cultivations, the judge explained the two levels (referred to as the tenancy level and the finance level) of the case against the appellant: -- 8 of 18 -- [2025] SASCA 110 The Court 7 [11] So you can see that the prosecution case against [the appellant] is pitched at two levels. The first I will call the tenancy level, that involves rental, payment of rental and providing access to the property and then there is the providing finance and acquiring equipment and materials level. So they are the two levels at which the prosecution case pitched against [the appellant]. Compare that with the prosecution case against [the appellant’s brother], it is a hands-on level. 34 The judge then addressed the use that might be made of the similarities in the evidence relating to the rental of the various grow houses (namely, in support of a conclusion that it was improbable that each was rented by a different person): [12] Now when you are going through the fact finding and inference drawing process, the prosecution asks you to consider what it says are the similarities between the circumstances of the rental of each property, the similarities in the descriptions of the persons who rented each property, the similarities in the rental payments, the similarities in the hydroponic set- up at each property, the common feature of the presence of documentation and other items with DNA, fingerprints and in some instances, handwriting and the surveillance evidence connecting the properties. [13] So those are the similarities that the prosecution asks you to consider and then the prosecution invites you to accept the evidence of each landlord and find that in each case a male and female attended the open inspection. The male spoke limited English. The phone numbers provided were in the names of subscribers other than the tenant’s name and in most cases were false names or fake identity. That the rent was always paid on time and in cash and that when police raided the seven properties, the hydroponic set-up in each property was very similar and finally, that surveillance evidence showed particular people travelling to and between some of those houses. So that’s the evidence that the prosecution invites you to accept. [14] The prosecution says that if you accept that evidence you should then conclude that the similarities and the circumstances of the rental in each case and the hydroponic set-up and so on, are such that it is improbable that each property was rented by a different person. Those are all matters for you to determine but you do not have to reach conclusions beyond reasonable doubt on those matters. 35 The judge next explained how this process of reasoning might be applied in considering the individual counts against the appellant:8 [15] So against that background, when you come to consider an individual count against [the appellant], bearing in mind the prosecution case is that he is the tenant of all properties and his purpose in renting each property is to cultivate the cannabis, the subject of the charge, then you can consider the following things. … [16] One, the evidence which specifically relates to the property that is said to implicate [the appellant] as a tenant. So in that part of the process you focus on the evidence for that count that is said to implicate him as being the tenant. [17] Then next, you look at the evidence which specifically relates to other properties that is also said to implicate [the appellant] as the tenant, considered as a whole. But when you are doing that or undertaking that process, depending on what view you take of the improbability that some different person may have been responsible for one or other of the 8 Noting that the ellipses in paragraphs [15], [17], [22] and [23] indicate the removal of some repetition by way of emphasis for the jury. -- 9 of 18 -- [2025] SASCA 110 The Court 8 houses, and I will call this ‘the different tenant improbability’. … So the ‘different tenant improbability’ will be assessed by reference to the following matters. [18] One, the connection or lack of connection between all of the multiple properties, such as surveillance. So it is for you to determine whether there is a connection or lack of connection between all of the multiple properties. [19] You look at the similarities, or dissimilarities in the descriptions of the tenants and the leasing arrangements and payments for all or multiple properties. [20] You look at the similarities or dissimilarities in the set-up in all or multiple properties and you look at the presence or absence of forensic evidence tending to show an association or link between [the appellant] and all or multiple properties. [21] So you are looking for similarities or dissimilarities in your determination of the improbability that some different person may have been responsible for one or other of the properties and that is the ‘different tenant improbability’. So you look at the other evidence implicating [the appellant] as a tenant and assess this ‘different tenant improbability’. [22] When you are determining whether [the appellant] is the tenant for a particular count under consideration (as opposed to determining whether he has an association with the premises more generally), … then your assessment of the different tenant improbability will be based on the consideration of all of those categories of evidence I have mentioned, the similarities and dissimilarities, and your assessment of the improbability will determine the weight that you give to the evidence that specifically relates to another house. [23] So if you have assessed another house or houses as probably being rented by other people, you might be able to see how that can determine the weight you will give to that evidence when you are looking at a particular count. Let me try and illustrate. At one end of the spectrum, if you considered on the whole of the evidence that it is not at all unlikely that there would be a different tenant responsible for one or other rental … any finding that [the appellant] is likely to be, or is proven to be the tenant for some other rental or rentals will be of no weight because you will have assessed that there is that different tenant improbability. There are dissimilarities, so the properties are not connected in that way. [24] You could not use that finding when you are considering an individual count because what you would be doing is engaging in propensity reasoning. You would say ‘Look, he’s the tenant on another property which I’ve considered to be dissimilar or have dissimilarities in terms of some or all of those suggested connections. Well, he’s the tenant for one property, he must [or] most likely be the tenant of the property I’m considering’. [25] So you would only place weight, and the weight is a matter for you, on a finding that [the appellant] is the tenant of another property if you assessed it as improbable that there was no connection between the properties because of those similarities. 36 At this point in her summing up, the judge gave the jury some directions reminding them that even if they were satisfied that the appellant was a tenant for a particular property, they were still required to go on and consider the elements of the relevant cultivation or trafficking charge before convicting the appellant of the relevant count. That said, as the judge also explained, the similarities with the other properties may inform their consideration of whether the appellant’s rental of a given property was for the purpose of cultivating cannabis: -- 10 of 18 -- [2025] SASCA 110 The Court 9 [26] For example, if you were satisfied that four of the houses had the requisite degree of similarity, you could take into account the evidence relating to those houses together in determining whether it is highly improbable that the purpose of the rental for the count you are considering was innocent or coincidental, and therefore whether the prosecution has excluded all other rational inferences consistent with innocence. [27] So you can see how if you have gone through that process of reasoning, you have arrived at a position where there are four houses with the requisite degree of similarity, you can take into account the evidence in relation to those houses in your determination of whether the purpose of the rental was innocent or was coincidental, and therefore those things being a reasonable explanation consistent with innocence, whether they have been excluded beyond reasonable doubt by the prosecution. That is the limited purpose to which you can put any evidence relating to the other properties. 37 After reiterating some aspects of this permissible use of the evidence relating to the other properties, the judge then returned to its impermissible use: [28] However, you could not use this evidence or finding to reason that this shows he was the sort of person who was likely to have rented out another property to grow the cannabis found at that property or he had the propensity to rent houses to cultivate cannabis for sale and is therefore guilty of another cultivation count. [29] That is impermissible reasoning, it is propensity, or bad person reasoning – I mentioned this some time ago in my summing up – and you have to be very astute that you do not fall into that trap that you only use the evidence for the limited purpose I have mentioned. 38 The judge also directed the jury that, even if they were not satisfied that the appellant took part in the cultivation for sale by renting the relevant property, they would still need to consider whether he nevertheless took part by providing finance or acquiring equipment or materials (referring to this as the second level of liability relied upon by the prosecution). This included a description of permissible parallel reasoning in that context by reference to similarities with other properties. Her Honour explained the permissibility of using evidence of similarities in the activities relating to the financing and acquisition of equipment for other properties in an equivalent way to the permissible improbability reasoning in relation to the rental of other properties. The judge explained that if, for example, the jury were not satisfied that the appellant organised the lease for a particular property, they might nevertheless rely upon other evidence linking the appellant to the financing or set-up for that property, together with similarities for other properties, to find the count relating to that property made out. The judge also warned the jury against slipping into propensity reasoning in this context, warning them against both reasoning from a propensity to cultivate cannabis at other properties, and more simplistic bad person reasoning. 39 The appellant accepted that, generally speaking, the judge’s directions in relation to the discreditable conduct evidence relating to other grow houses were thorough and appropriate. However, as mentioned, he challenged two aspects of those directions. -- 11 of 18 -- [2025] SASCA 110 The Court 10 The evidence of deception 40 The first aspect of the appellant’s challenge involved a complaint that the judge did not ever separately identify the evidence of the deception involved in renting the seven different properties as evidence of discreditable conduct, and thus failed to identify and explain the permissible and impermissible uses of this evidence for the purposes of s 34R of the Evidence Act. In support of the need for the judge to separately address this evidence, the appellant relied upon the prosecutor’s reference in submissions at trial to the appropriateness of the judge doing so, and the judge’s apparent acceptance of this submission. 41 It may be accepted that the evidence suggesting the use of false names, and other false forms of identification, was evidence of deceptive conduct, and hence evidence of discreditable conduct for the purposes of s 34R. It may also be accepted that the judge did not give any separate, or stand alone, directions as to the permissible and impermissible uses of this evidence. The issue is whether, in the circumstances of this case, separate directions were required, or whether the more general directions about the use of the evidence relating to the rental of the other grow houses, as summarised above, were adequate to achieve compliance with the judge’s obligations under s 34R. 42 As the appellant argued, a propensity to engage in deceptive conduct is conceptually distinct from a propensity to engage in the criminal conduct inherent in renting premises for the purposes of cultivating or trafficking cannabis. In other words, a propensity to engage in deceptive or dishonest conduct is conceptually distinct from a propensity to engage in cannabis or drug offending. In some circumstances, this conceptual distinction will be important. However, it is well recognised that what is required to comply with s 34R of the Evidence Act will depend upon the circumstances of the particular case.9 Put another way, the nature of the permissible and impermissible uses of the evidence of discreditable conduct that must be identified and explained, and indeed the specificity with which they must be identified and explained, will depend to some extent upon the charged offences, the matters in issue, and the way in which the parties conduct the case. 43 In the present case, the deception involved in securing the leases for the properties to be used as grow houses was closely related to, if not part and parcel of, the discreditable conduct involved in obtaining the rental premises for use as grow houses. In these circumstances, it was appropriate to address all of this conduct as, in effect, a single head of discreditable conduct. 44 It is noteworthy in this respect that, in commencing her directions in relation to the permissible and impermissible uses of the evidence of renting properties for use as grow houses, the judge (in paragraph [13]) specifically mentioned the 9 Perera-Cathcart v The Queen (2017) 260 CLR 595 at [52]-[53], [57]-[58] (Kiefel, Bell and Keane JJ); R v Tran [2017] SASCFC 99 at [163] (Doyle J), applied in JGS v The Queen [2020] SASCFC 48 at [97] (Lovell J, Bampton and Peek JJ agreeing) and Adamson v The King [2024] SASCA 91 at [53]-[57] (Lovell, Doyle and Bleby JJA). -- 12 of 18 -- [2025] SASCA 110 The Court 11 evidence of the use of ‘false names or fake identity’ in obtaining the leases. The jury would have understood from this that all of this evidence (that is, all of the evidence relating to the rental of other premises, including not only the deceptive means through which the leases were obtained, but also the criminal purpose for which those premises were to be used), was to be treated in the same way. Just as it was all available to be used for the permissible improbability use explained by the judge, the jury would have understood that none of it was to be used for any propensity style reasoning. In circumstances where neither party suggested any separate use of the evidence of deception, we do not think that it needed to be separately addressed. Circular reasoning 45 The second aspect of the appellant’s challenge to the judge’s directions in relation to the evidence of discreditable conduct involved a complaint that the judge departed from the prosecution’s three-limbed articulation of the permissible use of that evidence. 46 I have set out the three limbs earlier in these reasons, noting that they were not always identified in precisely the same way or terms. Importantly for present purposes, the first limb involved a reliance upon similarities in the circumstances in which the seven properties were rented with a view to establishing that it was highly probable that each of the properties was rented by the same man; and the third limb involved a reliance upon various items of evidence linking the appellant to those properties, with a view to establishing that he was the man who had rented each of the properties. These limbs then combined with the second limb (which involved consideration of the purpose for which the properties were rented) to make it highly improbable that the appellant’s connection with any of the properties was innocent or coincidental. 47 It was appropriate that the prosecution and judge identified these three limbs to the prosecution case in explaining the permissible use of the evidence of the other grow houses when considering a particular count. This would have assisted the jury to understand the logic and probative force of the permissible use of this evidence. However, we do not think that it was necessary to maintain any strict separation between these limbs. To the contrary, there was some natural and appropriate overlap between the evidence and considerations relevant to each. In particular, there was a natural overlap in the jury’s consideration of the similarities between the man who rented the properties (such as his physical description, the way he spoke and the description of the female who accompanied him), and their consideration of whether the appellant was that man. 48 The appellant’s complaint focussed upon the directions in paragraphs [12], [20] and [21] above, and in particular the judge’s references in these paragraphs to the forensic evidence linking the appellant to some of the rental properties. The appellant contends that by referring to this evidence (which was directed to the -- 13 of 18 -- [2025] SASCA 110 The Court 12 third limb) in the context of her directions in relation to the first limb, the judge risked confusing the jury, and inviting them to engage in circular reasoning. 49 There is some technical validity or force in the appellant’s complaint in the sense that the forensic evidence linking the appellant to some of the rental properties was only directed to the third limb. It would have been preferable had the judge not referred to this evidence in these places. However, in our view, this was an immaterial slip in the context of the summing up as a whole. As is apparent from the summary of the relevant passages from the judge’s summing up set out above, the judge gave comprehensive directions in relation to the permissible and impermissible uses of the evidence of discreditable conduct. She commenced (in paragraph [7]) by making clear the distinction between the first and third limbs of the prosecution’s articulation of the permissible use, and proceeded generally to adhere to this distinction. Read as a whole, the judge’s directions made clear the permissible process of reasoning. We do not think that the slips in referring to the forensic evidence in the places mentioned would have distracted the jury from applying the permissible process of reasoning properly identified by the judge. The judge accurately identified the permissible use several times, including in the paragraphs immediately following the slips mentioned above. 50 Similarly, we do not think there was any error in the judge at times addressing both the first and third limbs in the same context. Ultimately these two matters needed to be considered in combination. In the case of each grow house, it was necessary to consider the evidence linking the appellant to that grow house, in combination with the evidence as to the probability that they were all rented and operated by the same person, and that the appellant was that person. We do not think the judge’s directions gave rise to any realistic prospect that the jury would have reasoned in the circular manner the appellant suggests. They would have understood the need to consider what the judge referred to as ‘the different tenant improbability’ separately, before then considering it in combination with the evidence implicating the appellant as the tenant of the relevant grow house when addressing the individual counts. 51 In summary, the appellant has not established any failure to comply with s 34R, or any miscarriage of justice arising out of the judge’s directions as to the permissible and impermissible uses of the evidence of discreditable conduct. The slips in the judge’s articulation of the permissible use could not realistically have affected the jury’s reasoning towards their verdicts of guilt.10 Ground 2: an in-court identification 52 Ground 2 involves a complaint that one of the landlord witnesses made an inadmissible dock, or in-court, identification of the appellant. The appellant argued that, although the judge ultimately directed the jury to ignore this 10 MDP v The King [2025] HCA 24 at [3] (Gageler CJ), [99]-[103] (Gleeson, Jagot and Beech-Jones JJ), [30]-[31] (Gordon and Steward JJ), [56] (Edelman J); Brawn v The King [2025] HCA 20 at [3], [10] (the Court). -- 14 of 18 -- [2025] SASCA 110 The Court 13 identification, the delay in giving this direction resulted in a miscarriage of justice. By the time the appropriate direction was given, it was too late to address the prejudice to the appellant. 53 As outlined earlier in these reasons, the prosecution led evidence from the landlords involved in renting each of the seven properties used as grow houses. Of the landlords who participated in photographic identification procedures, four identified the appellant as the man who had rented the properties from them. 54 The prosecution did not set out to lead any additional or confirmatory evidence by way of in-court identification of the appellant. However, in the course of the oral evidence of one of these landlords, Mr Khiem Tran (the landlord of grow house 1, who rented his property to a man identifying himself as ‘Diego’), he made what might be described as a non-verbal in-court identification of the appellant. This occurred during an exchange recorded in transcript as follows: Q. Are you able to tell us the last time that you saw the man Diego. No, no, no sir, just listen to my question if you would please. A. Okay. 55 There is no dispute that, as the prosecutor was asking Mr Tran when he had last seen ‘Diego’, Mr Tran looked towards the appellant, and nodded and grinned. The jury plainly noticed what had occurred, because they laughed. 56 Defence counsel made an application for a mistrial, which was refused. Although the judge ultimately addressed what had occurred in her summing up, and instructed the jury to ignore Mr Tran’s in-court identification of the appellant, this did not occur until about five weeks after Mr Tran had given evidence. 57 The appellant argued that Mr Tran’s in-court identification of the appellant was inadmissible on the basis that its probative value was outweighed by its prejudicial effect. 58 In addressing this submission, the starting point is that, in addition to the usual limitations upon the probative value of identification evidence,11 the circumstances of an in-court identification will generally result in it having a very low probative value.12 When asked in court to identify the offender, a witness may, in nominating the defendant, be influenced by the circumstances that the defendant is the only obvious candidate present, and is plainly not only under suspicion by the authorities, but on trial for the offence.13 There is also a risk of a displacement 11 Domican v The Queen (1992) 173 CLR 555 at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 12 Al-Hashimi v The Queen (2004) 181 FLR 383 at [22]-[23] (Miller J, Wheeler and EM Heenan JJ agreeing) (but noting that the evidence may have greater probative value where the witness had more than fleeting dealings with the offender); Alexander v The Queen (1981) 145 CLR 395 at 399 (Gibbs CJ), 427 (Mason J); Festa v The Queen (2001) 208 CLR 593 at [18] (Gleeson CJ); Davies v The King (1937) 57 CLR 170 at 181-182 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ). 13 Strauss v Police (2013) 115 SASR 90 at [183]-[186] (Peek J). -- 15 of 18 -- [2025] SASCA 110 The Court 14 effect if the witness has participated in some earlier identification process (such as an in-person identification parade or photographic identification). Having regard to the consequential risk that the jury will attach inappropriate weight to an in- court identification, evidence of this nature will often be inadmissible on the basis its prejudicial effect outweighs its probative value.14 59 It is to be acknowledged that there are some authorities that have suggested that in-court identifications may nevertheless be admissible, if accompanied by appropriate directions to the jury. Generally, although not always, this suggestion has been directed to circumstances where the witness has previously made an out- of-court identification.15 It has been suggested that an in-court identification may be permitted in these circumstances so as to give the witness an opportunity to ‘confirm’ their earlier photographic identification or, indeed, to resile from that identification.16 60 Even accepting the line of authority which contemplates an in-court identification for the purpose just described, there were two additional difficulties in the present case. The first was an exacerbated concern with the displacement effect given that Mr Tran had given evidence, and seen the appellant, in the context of the first trial, and had presumably become aware that he was convicted. There was thus a risk of displacement both from the earlier photographic identification, and from the earlier trial. Further, even though Mr Tran had made an earlier photographic identification of the appellant, he made his in-court identification of the appellant before giving any evidence about that earlier out-of-court identification. It follows that his in-court identification of the appellant was not merely confirmatory of an earlier identification in the sense contemplated by the authorities. 61 We are inclined to think that the in-court identification of the appellant by Mr Tran was inadmissible. However, because we have ultimately reached a conclusion that the judge’s directions adequately addressed the prejudice to the appellant by directing the jury to disregard this aspect of Mr Tran’s evidence, we have not found it necessary to reach a concluded view about this. 62 Despite rejecting the defence application for a mistrial, the judge proceeded on the basis that an in-court identification had been made and that it was inadmissible. In her summing up, the judge gave detailed directions in relation to the need for caution before accepting any form of identification evidence,17 14 See, for example, Preston v The Queen (2013) 116 SASR 522 at [34] (David J, Stanley and Nicholson JJ agreeing). 15 R v Britten (1988) 51 SASR 567 at 572 (King CJ); Jokic v Hayes (1990) 53 SASR 530 at 536 (Mullighan J); Grbic v Pitkethly (1992) 38 FCR 95 at 104 (Sheppard J); R v Clark (1996) 91 A Crim R 46 at 52 (Cox J, Perry and Lander JJ agreeing); R v Gassy [2004] SASC 338 at [138] (Vanstone J). 16 R v Britten (1988) 51 SASR 567 at 572 (King CJ); R v Clark (1996) 91 A Crim R 46 at 52 (Cox J, Perry and Lander JJ agreeing); R v Gorham (1997) 68 SASR 505 at 508 (Duggan J, Lander and Bleby JJ agreeing). 17 Domican v The Queen (1992) 173 CLR 555 at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Evidence Act 1929 (SA), s 34AB(3). -- 16 of 18 -- [2025] SASCA 110 The Court 15 including the photographic identifications relied upon by the prosecution. When addressing the evidence of Mr Tran, the judge emphasised the applicability of these directions to his photographic identification of the appellant. However, in addition to this, the judge specifically directed the jury to disregard Mr Tran’s in- court identification of the appellant. She said: I need to now give you some important directions about something Mr Tran said in his evidence – and you may or may not recall this. He was asked by [the prosecutor] when was the last time that he saw Diego. And you might have observed him smile and turn to the dock and nod – I can see by your smiles that it did not escape you. I need to give you a direction about that evidence. You have to disregard it and place no weight upon it in evaluating the evidence that he selected the photograph of [the appellant] as the person who rented this property. The reasons that this evidence is of no value to you, you must place no weight on it and disregard it are as follows. Mr Tran selected a photograph that you know is [the appellant’s] photograph from the photo pack. Mr Tran saw [the appellant] at the last trial and understood that [the appellant] was the person accused of renting his premises and growing cannabis there. In those circumstances, members of the jury, as amusing as it might have been, it is hardly surprising that he would gesture to the dock where the man he selected and saw at the last trial was sitting. For those reasons, you cannot use this as an act of positive identification of [the appellant] as Diego because all that was happening was Mr Tran was recognising the person he picked out in the photo pack procedure and who he had seen at the last trial. And this is probably a very stark example of the displacement effect. That is the phenomenon well-known to the courts of being shown a photograph or understanding a person is said to be a particular person and the original memory is displaced. So, that is what has happened in that example. That is the displacement effect. And it is for that very reason that you have to disregard that. You must not use that evidence to conclude that that is a positive identification of [the appellant] as Diego – absolutely you must not, consistent with my warnings and directions that I have given you. 63 It is apparent from the judge’s passing reference to the jurors’ smiles that they recalled Mr Tran’s in-court identification. However, the judge’s directions to the jury that they were to disregard this evidence were clear and firm. With respect, it was sensible for the judge to do as she did, and explain to the jury the reason why they were being told to disregard this aspect of Mr Tran’s evidence. By explaining the displacement effect, and the particular risk of it occurring in the present case, the directions were more likely to have been effective in ensuring that the jury did not attach any weight to Mr Tran’s in-court identification of the appellant. 64 The appellant’s counsel did not make any criticism of the terms of the directions given by the judge. He accepted that, in another case, equivalent directions may have been adequate to assuage the risk of prejudice associated with an in-court identification. However, the appellant’s counsel argued that the difficulty in the present case was the timing of the directions. He accepted that, had the directions been given contemporaneously with, or soon after, Mr Tran made his in-court identification of the appellant, this might have adequately addressed the prejudice. However, because no directions were given at that time, there was a risk that Mr Tran’s in-court identification inappropriately bolstered not -- 17 of 18 -- [2025] SASCA 110 The Court 16 only Mr Tran’s evidence of his photographic identification, but also the identification evidence given by the other landlords. As the appellant’s counsel put it, the prejudicial effect of the in-court identification was too firmly braided into the jury’s consideration of the other evidence in the case by the time of the summing up for the judge’s directions to be effective. This concern about the prejudicial effect of the in-court identification was said to be exacerbated by the fact that approximately five weeks had passed by the time the judge directed the jury to disregard what had occurred. 65 It certainly would have been preferable had the judge given the jury a direction soon after Mr Tran’s in-court identification.18 It would have been appropriate and convenient to do so after the unsuccessful application for a mistrial. A direction at this point in the trial would have provided greater comfort that the jury would be able to disregard what had occurred. However, in our view, this was not necessary in order to avoid a miscarriage of justice. 66 As explained, the judge ultimately gave the jury a clear and firm direction to disregard that aspect of Mr Tran’s evidence. The judge’s explanation of why it was to be disregarded would have assisted in ensuring it was effective. And to the extent that there might otherwise have been a risk of this aspect of Mr Tran’s evidence affecting the identification evidence given by other landlords, it is significant that the judge had earlier given clear directions to the effect that the identification evidence from each witness needed to be considered separately and could not be used to bolster the identification evidence given by other witnesses. 67 Consistently with the notion that juries are generally assumed to understand and follow the directions they are given,19 it is accepted that the inadvertent exposure of the jury to prejudicial or inadmissible evidence may generally20 (although not always21) be cured through clear direction to a jury. In the circumstances of the present case, we are satisfied that the jury would have understood and followed the judge’s direction to disregard Mr Tran’s in-court identification, and that the direction would have been effective to address the prejudice that might otherwise have followed from what occurred. 68 No miscarriage of justice has been established, and Ground 2 has not been made out. Conclusion 69 For the reasons set out, we grant permission to appeal but dismiss the appeal. 18 As happened, for example, in R v Andrews (No 4) [2005] SASC 300 at [3] (Debelle J). 19 Gilbert v The Queen (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J), [31] (McHugh J). 20 In the context of identification evidence, see R v Dickman (2017) 261 CLR 601 at [56]-[57] (the Court). 21 Sears v The Queen (2020) 137 SASR 219 at [41] (Peek J). -- 18 of 18 --