ADAMSON (A PSEUDONYM) v THE KING [2024] SASCA 91

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE SOULIO) DCCRM-20-784 Appellant: ADAMSON (A PSEUDONYM) Counsel: MR A CULSHAW WITH MR O MORRIS - Solicitor: DEVINE MURDOCH Respondent: THE KING Counsel: MR W SCOBIE WITH MS E NOONE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/06/2024 File No/s: SCCRM-23-045247 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. ADAMSON (A PSEUDONYM) v THE KING [2024] SASCA 91 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby) 1 August 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - OTHER MATTERS CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS Following a trial by judge alone, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant appeals on two grounds, each of which challenges the trial judge’s directions in relation to evidence of discreditable conduct adduced at trial. The first ground relates to evidence as to the appellant’s domestic violence against the complainant’s mother (‘the domestic violence evidence’). The second ground relates to the complainant’s evidence that on two occasions, the appellant made sexual comments towards her (‘the sexual comments evidence’). The appellant contends that the trial judge failed to comply with his obligation under s 34R(1) of the Evidence Act 1929 (SA) to identify and explain the permissible and impermissible uses of that evidence. Held, per the Court, granting permission to appeal in relation to Ground 2 and allowing the appeal on Grounds 1 and 2: 1. The trial judge failed to adequately identify and explain the impermissible use of the domestic violence evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA); -- 1 of 24 -- 2. The trial judge failed to adequately identify and explain the permissible use of the sexual comments evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA); and 3. This is not an appropriate case to apply the proviso to the common form appeal provisions in s 158(2) of the Criminal Procedure Act 1921 (SA). Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) ss 158(1)(b), 158(2); Evidence Act 1929 (SA) ss 13C, 34P(1), 34P(2), 34Q, 34R(1), referred to. AK v Western Australia (2008) 232 CLR 438; Carr (a pseudonym) v The King [2024] SASCA 69; Collins v The Queen [2020] SASCFC 96; Filippou v The Queen (2015) 256 CLR 47; Hammer v The Queen [2022] SASCA 75; HCF v The Queen (2023) 97 ALJR 978; Hofer v The Queen (2021) 274 CLR 351; Huxley v The Queen (2023) 98 ALJR 62; JGS v The Queen [2020] SASCFC 48; Kalbasi v Western Australia (2018) 264 CLR 62; Kane (a pseudonym) v The King [2024] SASCA 70; Magro v The King [2022] SASCA 100; McPhillamy v The Queen (2018) 92 ALJR 1045; MDM v The Queen (2020) 136 SASR 360; R v MDP [2023] QCA 134; OKS v Western Australia (2019) 265 CLR 268; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v Becirovic [2017] SASCFC 156; R v Forrest (2016) 125 SASR 319; R v Golubovic [2016] SASCFC 144; R v JMSA [2023] SADC 130; R v Singh [2019] SASCFC 51; R v Taheri [2017] SASCFC 92; R v Tahiata [2024] QCA 59; R v Tran [2017] SASCFC 99; Weiss v The Queen (2005) 224 CLR 300, considered. -- 2 of 24 -- ADAMSON (A PSEUDONYM) v THE KING [2024] SASCA 91 Court of Appeal – Criminal: Lovell, Doyle and Bleby JJA 1 THE COURT: Following a trial before a judge sitting without a jury, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was his stepdaughter, SB. 2 The appellant appeals on two grounds, each of which challenges the trial judge’s directions in relation to evidence of discreditable conduct adduced at trial. In particular, each involves a contention that the trial judge failed to comply with his obligation under s 34R(1) of the Evidence Act 1929 (SA) to identify and explain the permissible and impermissible uses of that evidence. 3 For the reasons which follow, both grounds have been made good and this is not a proper case in which to invoke the proviso to the common form appeal provisions in s 158(2) of the Criminal Procedure Act 1921 (SA). It follows that the appeal should be allowed, with an order for a retrial. Background 4 In 2018, the appellant was charged with maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act. 5 In summary, it was alleged that, between 1999 and 2003, while in a relationship with LK, the appellant engaged in numerous unlawful sexual acts with LK’s daughter, SB. Consistently with the particulars alleged in the information, SB gave evidence to the effect that the appellant: (a) frequently put his hand down her pants and touched her vagina; (b) inserted his penis into her vagina on more than one occasion, including an occasion while she was sleeping, and an occasion in a car while pulled over at a truck stop; (c) took her hand and placed it inside his track pants and onto his penis; (d) instructed her to take her clothes off and clean her brother’s room while he lay on a bed and watched; and (e) instructed her to sit on his bed and watch pornography. 6 When the offending occurred, SB was aged between 10 and 12 years of age, and the appellant was aged between 35 and 37 years of age. The appellant’s relationship with LK ended when SB was about 12 years of age. -- 3 of 24 -- [2024] SASCA 91 The Court 2 7 The charge of maintaining an unlawful sexual relationship was first tried before a jury in 2020. SB gave evidence by audio-visual link. The jury was unable to reach a verdict. 8 In 2021, there was a second trial, before a different judge, but again sitting with a jury. SB gave evidence by audio-visual link, and a record of her evidence was taken pursuant to s 13C of the Evidence Act. The jury was again unable to reach a verdict. 9 In 2023, there was a third trial. This time the trial proceeded before a judge (‘the primary judge’) sitting without a jury. The third trial was essentially a trial ‘on the papers’. An audio-visual record of SB’s evidence from the second trial was received in evidence pursuant to s 13D of the Evidence Act. The transcript of the balance of the evidence from the second trial was tendered by consent, and closing addresses were made. 10 In late 2023, the primary judge convicted the appellant of the offence charged, and published his reasons for verdict.1 The evidence at trial 11 The prosecution case was based on the evidence of SB. 12 SB first came in contact with the appellant when her mother, LK, commenced a relationship with the appellant. She was about three years of age at the time. At some point prior to SB commencing primary school (at the age of five), the appellant commenced to live with LK and SB. 13 The appellant and LK had two children together, JA and DA. 14 When SB was about 10 years of age, she and her family moved to Keith. On SB’s evidence, the appellant commenced to sexually abuse her while they were living in Keith. 15 SB gave evidence of frequent indecent assaults. She said that the appellant would get into her bed at night, put his hands down her pants and touch her vagina. She said that this touching happened frequently. She could not say how often, but estimated a couple of times per week, and said that it occurred more than 10 times. SB also described an occasion when she woke to ‘what felt like him pulling his penis out of my vagina’. 16 SB gave evidence of an occasion at their Keith address when the appellant took her into JA’s bedroom and made her take her clothes off. The appellant lay on the bed, and watched SB as she cried. SB tried to put a blanket around herself, but the appellant took it away from her. 1 R v JMSA [2023] SADC 130 (‘Reasons’). -- 4 of 24 -- [2024] SASCA 91 The Court 3 17 There was a further occasion at that address when the appellant made SB watch pornography with him. There were also two occasions at that address when the appellant made sexual comments about SB in her presence. The first of these involved the appellant pointing to a picture of a woman and saying to SB that he ‘wanted [her] to come back with tits like that’. The second involved the appellant saying to SB ‘first I’m going to teach you how to work on cars and then I’m going to teach you how to have sex’. 18 The appellant’s relationship with LK ended when SB was about 12 years of age. LK, SB and her two siblings (JA and DA) moved to an address in Murray Bridge. The appellant continued to live in Keith, but occasionally visited the Murray Bridge address. 19 On one occasion when the appellant visited, he took SB, JA and DA on a road trip. At night, they pulled over into a truck stop. The appellant asked SB to pull her pants down and to get onto her hands and knees, like she was giving her siblings a horse ride. SB did as she was instructed, and the appellant inserted his penis into her vagina. In giving evidence about this ‘car trip incident’, SB said that the appellant threatened her by saying that he would beat her mother with an 8 ball cue that he had in the boot of the car if she did not do as he asked. SB said that she believed the appellant as she had seen what he had done to her mother in the past. 20 This was consistent with SB’s evidence of the violence she had seen the appellant inflict upon LK. She described three instances of significant violence. One involved the appellant punching LK, resulting in her receiving a broken nose and being taken to hospital in an ambulance. The second involved the appellant dragging LK by the hair down some steps. The third involved the appellant punching LK with sufficient force to cause her to fall backwards and hit her head on the corner of the stove. SB described other occasions when she heard the appellant and her mother arguing, and other sounds (‘thuds’) and subsequent tears by her mother, consistent with further violence towards her mother. SB denied the suggestion put to her in cross-examination that each of LK and the appellant ‘gave as good as they got’; she said she had never seen her mother be violent towards the appellant. 21 SB also gave evidence that, on the occasion of the car trip incident described above, the appellant also indecently assaulted her at his Keith address. The appellant was lying on a mattress. The appellant asked SB to put her hand down his pants and onto his penis. SB then let the appellant put her hand underneath his pants and onto his penis. On SB’s evidence, this was the final incident of sexual offending against her. 22 SB’s evidence was that her initial complaint about the appellant’s offending against her was to her mother, LK, on the occasion of her 14th birthday. She said that she had not told her mother earlier because she was scared of the appellant. -- 5 of 24 -- [2024] SASCA 91 The Court 4 23 LK gave evidence. She confirmed that SB made a complaint to her of sexual offending against her by the appellant, and that she did so on the occasion of SB’s 14th birthday. LK also gave evidence of the appellant’s violence against her, including in the presence of SB. 24 A family friend of LK gave evidence. The balance of the evidence was tendered and was comprised of various agreed facts, and agreed evidence of JA and DA. This evidence was addressed primarily to matters relevant to the family relationships and timelines, although JA’s evidence also included reference to regular and significant violence by the appellant towards LK. Evidence of the investigating officer was also agreed, and included the tender of a record of interview with the appellant in which he denied the offending, but admitted acting violently towards LK throughout their relationship. 25 Although evidence was led from these additional witnesses, the prosecutor accepted in her closing address that the prosecution case rested on the evidence of SB, and hence that the judge was required to ‘scrutinise her evidence carefully’. 26 The appellant called evidence from his mother, a member of his legal team, and a medical practitioner, all of which related to what was said to be distinctive markings on his penis, being scarring consistent with surgical and accidental trauma. 27 The appellant did not give evidence. 28 The defence case involved a denial of the offending, and a challenge to the credibility and reliability of SB’s evidence. SB was cross-examined to the effect that the allegations were untrue and had been fabricated by SB. There was an emphasis upon inconsistencies and omissions in her evidence, particularly in relation to the duration and timing of the offending. But there was also a significant challenge to the credit of SB, with the defence case being that SB was motivated to lie, and to fabricate the allegations of sexual abuse, by her hatred of the appellant as a result of his violence towards her mother. The discreditable conduct evidence 29 As mentioned at the outset of these reasons, the two grounds of appeal both relate to the trial judge’s directions in relation to the discreditable conduct evidence adduced by the prosecution. 30 The first ground relates to the evidence adduced from SB, LK and JA as to the appellant’s domestic violence towards LK, and SB’s knowledge of that violence (‘the domestic violence evidence’). The second ground relates to the evidence adduced from SB as to the two occasions upon which the appellant made sexual comments about SB (‘the sexual comments evidence’). 31 There is no dispute that both involved evidence of discreditable conduct. In both cases the evidence was admitted without objection. -- 6 of 24 -- [2024] SASCA 91 The Court 5 32 The domestic violence evidence was adduced in all three trials. The prosecution relied upon it as relevant only by way of explanation for the (late) timing of SB’s complaint. In other words, SB’s knowledge of the appellant’s violence towards her mother was said to support her failure to complain until after her mother’s relationship with the appellant had finished, and they were living separately from the appellant. The defence case did not involve any challenge to the domestic violence evidence. To the contrary, the defence relied upon this evidence as providing a basis for SB’s hatred of the appellant and her motive to lie about the offending against her. 33 The sexual comments evidence was not adduced at the first trial. It was adduced during the second trial on the basis that it was said to be relevant to the nature of the relationship between SB and the appellant. The prosecutor expressly disavowed any reliance upon this evidence for any propensity use, including any use involving any sexual interest by the appellant in SB that might be probative of a preparedness to act upon it. 34 As the evidence from the second trial was tendered in the third trial, the sexual comments evidence formed party of the evidence at the third trial. However, neither party made any express reference to this evidence in their closing addresses. 35 As summarised below, the trial judge made various references to these bodies of discreditable conduct evidence in his reasons. The trial judge’s reasons 36 The trial judge commenced his reasons by setting out the charge, and giving himself some orthodox general directions, including as to the elements of the charged offence. His Honour then embarked upon a relatively thorough summary of the evidence at trial. 37 In summarising SB’s evidence, the trial judge included reference to SB’s account of the sexual comments about her made by the appellant in her presence. His Honour also included reference to SB’s evidence as to the violence by the appellant to her mother that she had witnessed. When describing the car trip incident, the trial judge mentioned SB’s evidence to the effect that she believed the appellant’s threat about the 8 ball cue because she had seen what he had done to her mother in the past. Further, when describing SB’s evidence of the complaint she made to her mother after her relationship with the appellant had finished, the trial judge mentioned SB’s evidence to the effect that she had not told her mother earlier because she was scared of the accused given the violence she had witnessed. 38 In then summarising the parties’ addresses, the trial judge noted the parties’ respective arguments in relation to the domestic violence evidence, with the prosecution emphasising its relevance to the timing of SB’s complaint, and the defence emphasising its relevance in support of SB’s motive to lie. His Honour -- 7 of 24 -- [2024] SASCA 91 The Court 6 did not mention the sexual comments evidence in this context, which is not surprising given that it did not feature in the parties’ closing addresses. 39 Turning to the operative section of the trial judge’s reasons, his Honour commenced with some observations about the fact that the appellant did not give evidence, the appellant’s denial of the offending in his record of interview, and the onus of proof.2 The trial judge then turned to what he described as the ‘uncharged acts’. He gave himself the following directions in relation to the domestic violence evidence (at [179]): The complainant and LK gave evidence of specific incidents of violence inflicted by the accused upon LK. I bear in mind that the only relevance of that evidence goes to the potential reason the complainant did not complain to her mother at the time of the alleged sexual offending, out of fear that upon being confronted … the accused would become violent towards LK; and in the context of the complainant’s evidence regarding the car trip incident when she said that the accused had threatened to use a pool cue to beat the complainant’s mother, if the complainant did not do as she was told. The evidence was therefore relevant to enable an assessment of the complainant’s evidence as to her reaction to that threat. I bear in mind that I would need to be satisfied as to the accuracy and reliability of the evidence relating to the accused’s infliction of violence upon LK before I could use the evidence in that way. 40 He then gave himself the following directions in relation to the sexual comments evidence (at [180]): I bear in mind in relation to the evidence of the complainant that the accused had said things to her of a sexual nature is only relevant if I accept that such things were said, in the context of some sexual interest in the complainant on the part of the accused. Even accepting that the accused made those comments, does not mean that he is more likely to have perpetrated the sexual acts. 41 After giving himself these directions, the trial judge addressed the complainant’s evidence. He addressed some of the challenges to her evidence, before stating that he did not consider that the inconsistencies relied upon by the defence when considered, either individually or collectively, undermined the credibility or reliability of her evidence in relation to the charged acts.3 42 The trial judge addressed the defence submission that SB had a motive to lie.4 His Honour rejected the submission she had a motive to lie, or to fabricate the allegations of sexual offending, noting that by the time SB complained about the offending to her mother, the appellant had long since been ‘out of her life’. 43 Turning to the complaint evidence, the trial judge accepted SB’s evidence to the effect that she had not said anything about the appellant’s conduct whilst her mother was still in a relationship with the appellant because of her concern about the ramifications for her mother given the violence she had witnessed.5 His Honour 2 Reasons at [176]-[178]. 3 Reasons at [181]-[183]. 4 Reasons at [184]-[186]. 5 Reasons at [187]. -- 8 of 24 -- [2024] SASCA 91 The Court 7 noted the inconsistency between the evidence of SB and the evidence of LK as to the content of the complaint SB ultimately made to her mother. Whilst inclined to prefer the complainant’s version of the complaint, his Honour said that ‘ultimately we take the view that the inconsistency does not undermine the complainant’s evidence, but that the only use we can make of the complaint evidence is to explain the way in which the matter first came to light’.6 44 In the next sections of his reasons, the trial judge addressed the forensic disadvantage to the appellant given the time that had passed since the offending occurred;7 addressed the issues in the evidence as to the timing and duration of the alleged offending;8 and explained his rejection of the defence submissions as to the implausibility of certain aspects of SB’s evidence (being essentially her evidence in relation to the car trip incident, and her failure to notice anything distinctive about the appellant’s penis).9 45 The trial judge concluded his reasons with the following:10 Conclusion To state what must be obvious, the task involved in considering the evidence and determining the charges, is to ultimately consider the evidence and make a finding as to whether or not the prosecution has proved each element of a charged offence beyond reasonable doubt. As I have said, I accept the complainant as a truthful and reliable witness. I accept her account of events beyond reasonable doubt. I find that the accused committed two or more, indeed many more, acts of indecent assault by getting into bed with the complainant late at night, and touching her vagina. I find that the accused committed both acts of gross indecency in the circumstances deposed to by the complainant. Her account of each was detailed and compelling. As to the first act of unlawful sexual intercourse, I am unable to find beyond reasonable doubt on the evidence of the complainant that the accused penetrated the complainant’s vagina with his penis on that occasion. I find however that the accused had at least inserted his penis between the complainant’s legs, after pulling her clothing down below her buttocks. I find beyond reasonable doubt that in doing so he committed another indecent assault. I find beyond reasonable doubt that on the car trip to Adelaide the accused penetrated the complainant’s vagina with his penis, albeit briefly, and that he thereby committed an act of unlawful sexual intercourse. I find beyond reasonable doubt that the accused committed an indecent assault during the mattress incident by taking the complainant’s hand and placing it on his penis. 6 Reasons at [189]. 7 Reasons at [190]-[193]. 8 Reasons at [194]-[197]. 9 Reasons at [198]-[199]. 10 Reasons at [200]-[207] (citations omitted). -- 9 of 24 -- [2024] SASCA 91 The Court 8 It follows that I find the charged offence proven beyond reasonable doubt and must therefore return a verdict of guilty. Grounds of appeal 46 As mentioned, the appellant relies upon two grounds of appeal, the first challenging the trial judge’s directions in relation to the domestic violence evidence, and the second challenging his directions in relation to the sexual comments evidence: 1. The learned trial judge erred in law by failing to identify and explain the purposes for which the evidence of the appellant’s violence may not be used, contrary to s 34R(1) of the Evidence Act 1929 (SA) (see [179] of the Reasons). 2. The learned trial judge erred in law by misdirecting himself as to the use that could be made of the evidence that the appellant had made remarks of a sexual nature to the complainant (see [180] of the Reasons). 47 Before addressing these grounds more directly, it is appropriate to make some general observations about a trial judge’s obligations under s 34R(1) of the Evidence Act. A trial judge’s obligations under s 34R(1) of the Evidence Act 48 Division 3 of Part 3 of the Evidence Act contains various provisions relating to the admissibility and use of discreditable conduct evidence. Of particular significance in the present case are ss 34P, 34Q and 34R. They relevantly provide as follows: 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. -- 10 of 24 -- [2024] SASCA 91 The Court 9 (3) … (4) … (5) … 34Q—Use of evidence for other purposes Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use. 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. (2) … 49 Section 34P(1) thus provides that discreditable conduct evidence is not admissible, and may not be used, to suggest that the defendant is more likely to have committed the offence because he or she has engaged in the discreditable conduct. This proscribed form of reasoning, defined in the legislation as ‘the impermissible use’, is sometimes described as bare, general, basic or simplistic propensity reasoning. It is also sometimes referred to colloquially as ‘bad person’ reasoning. 50 Discreditable conduct evidence is only admissible, and able to be used for a ‘permissible use’, if it satisfies the requirements of s 34P(2). If the permissible use is a use that does not rely upon any particular propensity or disposition on the part of the defendant, then the probative value of the evidence in that use must outweigh any prejudicial effect it may have on the defendant (s 34P(2)(a)). If the permissible use does rely upon a particular propensity or disposition on the part of the defendant, then the evidence must not only be more probative than prejudicial in that use, but also have a strong probative value having regard to the particular issue or issues arising at trial (s 34P(2)(b)). 51 Under s 34Q, discreditable conduct evidence, even if admissible for one or more uses, must not be used for any inadmissible use. 52 Section 34R(1) provides that, where discreditable conduct is admitted, the trial judge must give directions as to the use for which that evidence may, and may not, be used. There are several significant features of this section. It is mandatory in its terms. It is expressed as applying both to judges sitting with a jury and judges sitting alone. It imposes an obligation to give directions which ‘identify and explain’ the uses. It involves an obligation to give directions both as to the use(s) for which the evidence may be used (the permissible uses), and the use(s) for which it may not be used (the impermissible uses). The permissible uses will be those which satisfy the requirements of s 34P(2). The impermissible uses will be ‘the -- 11 of 24 -- [2024] SASCA 91 The Court 10 impermissible use’ identified in s 34P(1), and any other use which does not satisfy the requirements of s 34P(2). 53 There are a number of authorities addressing the content of a trial judge’s obligation under s 34R(1). Whilst acknowledging the mandatory and prescriptive terms in which the section is expressed, these authorities make it plain that the section does not prescribe any particular form of words, and does not require that directions be given in relation to every conceivable use that might be made of any discreditable conduct evidence. What is required will depend to some extent upon the forensic context of the particular trial.11 54 For example, in Perara-Cathcart v The Queen,12 the High Court held that the trial judge, who gave a general direction warning against simplistic or bare reasoning, complied with his obligation under s 34R(1). The trial judge was not required to warn against a more specific impermissible use which was identified during the appeal, but which had not featured in the addresses at trial, and did not otherwise form part of the forensic contest at trial. 55 The importance of considering the content of the trial judge’s obligation under s 34R(1) in the context of the issues at trial was emphasised in the following passage from Doyle J’s reasons in R v Tran:13 I thus agree with Vanstone J that it was not necessary in the circumstances of this case for the trial judge to go further than he did, and expressly warn himself against the bare or general propensity reasoning proscribed by s 34P(1) (that is, using the wording of the “impermissible use” identified in that subsection). While the trial judge was obliged under s 34R(1) to identify and explain the uses that “may, and may not” be made of the evidence of discreditable conduct, the extent of this obligation is not to be determined in the abstract, and does not extend to identifying or explaining every conceivable or theoretical line of impermissible reasoning. 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.14 What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence.15 The issue is ultimately 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.16 While a direction that reflects the wording of the impermissible use identified in s 34P(1) will often be required, that will not always be so.17 In R v Forrest,18 the absence of such a 11 R v Golubovic [2016] SASCFC 144 at [80] (Blue J, Nicholson and Doyle JJ agreeing). 12 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [62]-[67] (Kiefel, Bell and Keane JJ). 13 R v Tran [2017] SASCFC 99 at [163]-[165]; subsequently applied in R v Singh [2019] SASCFC 51 at [53] (Doyle J, Peek and Parker JJ agreeing); JGS v The Queen [2020] SASCFC 48 at [97] (Lovell J, Peek and Bampton JJ agreeing); Hammer v The Queen [2022] SASCA 75 at [59] (Livesey P, Bleby and David JJA); Magro v The King [2022] SASCA 100 at [95] (Lovell, Bleby and David JJA). 14 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [53], [62], [66]; R v Taheri [2017] SASCFC 92 at [37]. 15 R v Golubovic [2016] SASCFC 144 at [80]. 16 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [57]-[58], [66]. 17 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [52]. 18 R v Forrest (2016) 125 SASR 319 at [44]-[47]. -- 12 of 24 -- [2024] SASCA 91 The Court 11 warning bespoke inadequacy and error because the prosecutor’s address had left open, if not encouraged, bare or general propensity reasoning of the proscribed type, and the trial judge’s directions did not clearly identify the quite limited and particular permissible use of that evidence. Similarly, in R v Golubovic,19 it was significant that the trial judge did not ever properly identify the permissible use of the evidence of discreditable conduct. By way of contrast, in the present case, the trial judge clearly and accurately described the permissible use that might be made of the evidence of discreditable conduct. The line of reasoning that this permissible use engaged was quite distinct from the general or bare propensity line of reasoning that s 34P(1) proscribes. The former turned upon an overall consideration of the evidence of the charged and uncharged conduct so as to deduce a pattern or system that might assist in characterising individual transactions. It did not employ the sequential reasoning from particular discreditable acts that is the hallmark of the impermissible bare or general propensity reasoning. In circumstances where (i) the trial judge made abundantly clear the permissible use of the evidence of discreditable conduct; (ii) that permissible use engaged a line of reasoning that did not give rise to any risk of, or occasion for, bare or general propensity reasoning; and (iii) the addresses of the parties did not otherwise invite or suggest such reasoning, it was not necessary for the trial judge to go further than the general warning he gave himself against inferring guilt of any particular charge from mere satisfaction that the appellant engaged in the uncharged acts. 56 In understanding the above passage from R v Tran, it is important to bear in mind that the trial judge in that case did give himself a direction not to engage in a (crude) form of impermissible bad person reasoning. His Honour directed himself that he ‘would not be in a position to convict on any count just because there is a significant amount of uncharged conduct that may be proved against the accused’.20 It was in that context that the Court held that s 34R(1) did not require that the trial judge go further and give a direction that conformed more closely to the wording of the impermissible use in s 34P(1).21 57 In applying this passage in Kane (a pseudonym) v The King,22 this Court recently dismissed an appeal in circumstances where the trial judge did not expressly direct the jury not to use ‘bad person’ reasoning in relation to a particular item of discreditable conduct evidence (referred to as ‘the invasive images allegation’). However, that was in circumstances where (i) there were no submissions which had invited the jury to make any impermissible use of that evidence, (ii) the evidence emerged in the context of (and appeared only to be relevant to) a particular issue which arose during the cross-examination of the complainant and then barely featured during the balance of the case, and (iii) the trial judge had elsewhere given a direction not to engage in bad person reasoning 19 R v Golubovic [2016] SASCFC 144 at [69], [70], [80], [86]-[87]. 20 R v Tran [2017] SASCFC 99 at [16]. 21 R v Tran [2017] SASCFC 99 at [24] (Vanstone J, Kelly J agreeing), [163]-[165] (Doyle J). 22 Kane (a pseudonym) v The King [2024] SASCA 70 at [65] (Doyle JA, Kourakis CJ and David JA agreeing). -- 13 of 24 -- [2024] SASCA 91 The Court 12 which was not only ‘clear and strong’, but also expressed in general terms which the jury would have understood extended to the invasive images allegation.23 Ground 1: the domestic violence evidence 58 The trial judge’s directions in relation to the use of the domestic violence evidence were contained in paragraph [179] of his reasons, and have been set out above. In short, the trial judge directed himself that ‘the only relevance’ of that evidence was as potential explanations for the timing of SB’s complaint, and for SB’s reaction to the threat made by the appellant during the car trip incident. 59 The trial judge concluded his directions in that paragraph by reminding himself that he could only use the domestic violence evidence in the permissible ways mentioned if he was satisfied as to the accuracy and reliability of that evidence. Whilst his Honour did not subsequently make any express findings in relation to that evidence, his Honour’s reasons included a general statement that he accepted SB as a truthful and reliable witness,24 and his consideration of the timing of SB’s complaint was premised upon SB having witnessed violence towards her mother.25 Accordingly, it is appropriate to proceed on the basis that the trial judge did accept SB’s evidence in relation to the domestic violence perpetrated by the appellant upon LK. 60 The appellant contends that the trial judge’s directions in paragraph [179] failed to comply with the trial judge’s obligation under s 34R(1). In particular, they did not include any direction against using that evidence for the impermissible use described in s 34P(1), being the impermissible simplistic or bad person propensity reasoning. 61 In responding to this challenge to the adequacy of the trial judge’s directions, the respondent relies upon the combination of the following matters. First, the trial judge clearly and accurately identified the permissible uses of the domestic violence evidence. Secondly, his Honour said that this was ‘the only relevance’ of the evidence, thus expressly excluding any other use of that evidence. Thirdly, the trial judge warned himself against simplistic bad person propensity reasoning in paragraph [180], albeit in the context of his directions about the sexual comments evidence rather than the domestic violence evidence. Fourthly, neither party suggested in their closing addresses or otherwise, that the trial judge should invoke any process of reasoning in relation to the domestic violence evidence that might have engaged the impermissible simplistic propensity reasoning proscribed by s 34P(1). Fifthly, the impugned directions were in the context of a trial by judge alone, rather than directions to a jury. Sixthly, the balance of the trial judge’s reasons for verdict do not contain any basis for suggesting that the trial judge in fact engaged in any impermissible reasoning in respect of the domestic violence 23 Kane (a pseudonym) v The King [2024] SASCA 70 at [66]-[77] (Doyle JA, Kourakis CJ and David JA agreeing). 24 Reasons at [201]. 25 Reasons at [187]. -- 14 of 24 -- [2024] SASCA 91 The Court 13 evidence. To the contrary, the only express use made of the evidence was in explaining the timing of SB’s complaint. And even then, his Honour only relied upon the complaint evidence as explaining the way in which SB’s allegations first came to light. 62 Dealing with each of these matters in turn, it may first be accepted that the accuracy and precision with which the trial judge describes the permissible use of discreditable conduct evidence may inform what is necessary to adequately direct in relation to the impermissible use of that evidence.26 However, it will not ordinarily overcome a failure to give any direction at all in relation to an impermissible use of that evidence which arises on the evidence at trial. 63 Secondly, whilst the trial judge’s reference to the permissible uses as ‘the only relevance’ of the evidence gives some guidance as to the trial judge’s understanding of how the evidence may, and implicitly may not, be used, it is important not to overlook the terms of s 34R(1). That section is expressed in terms which include an obligation to ‘identify and explain’ the purposes for which the evidence may not be used. In other words, the section contemplates more than a direction to the effect that the evidence may not be used for any purpose other than the identified permissible use(s) of that evidence. It contemplates that the trial judge will go further and identify and explain the impermissible use(s) of that evidence. It would seem that the rationale for requiring directions of this nature is to ensure that the impermissible uses are identified and understood so that they may be consciously excluded from the decision-making process. It thus involves a recognition of the risk that the finder of fact might otherwise slip into an impermissible form of reasoning, even if only subconsciously. 64 Thirdly, it is true that the trial judge expressly warned himself against bad person reasoning in the context of his directions about the sexual comments evidence. Whilst this demonstrates an awareness of the impermissibility of such simplistic reasoning, we do not think it was sufficient to discharge his Honour’s obligation to direct himself against such reasoning in relation to the domestic violence evidence. Unlike the ‘clear and strong’ direction against bad person reasoning given in Kane (a pseudonym) v The King, it was not given in terms which addressed the risk of such reasoning in relation to discreditable conduct evidence more generally. 65 Fourthly, it is also true that no party invited the trial judge to engage in the simplistic form of bad person propensity reasoning expressly proscribed by s 34P(1). However, it does not follow that this impermissible use was not one that needed to be addressed under s 34R(1). As mentioned, there will be cases, like Perara-Cathcart v The Queen, where a (theoretically available) impermissible use is sufficiently removed from the forensic contest at trial as to not require any 26 R v Tran [2017] SASCFC 99 at [164] (Doyle J), referring in this respect to R v Golubovic [2016] SASCFC 144 at [86]-[87] (Blue J, Nicholson and Doyle JJ agreeing), and R v Forrest (2016) 125 SASR 319 at [47] (Kourakis CJ, Kelly and Lovell JJ agreeing). -- 15 of 24 -- [2024] SASCA 91 The Court 14 express direction. However, that will rarely, if ever, be the case in relation to the impermissible use expressly proscribed by s 34P(1). 66 Fifthly, in circumstances where the obligation in s 34R(1) is articulated in terms which expressly apply to a trial judge ‘whether or not sitting with a jury’, there is limited scope for any difference in approach to the directions that must be given in the case of trials by judge alone. Without ruling out the possibility that the adequacy of the particular terms in which the directions are expressed may depend upon whether they are addressed to a judge or jury, it is difficult to see how this difference in the mode of trial can affect the permissible and impermissible uses which must be identified and explained. The terms in which s 34R(1) is drafted reveal a legislative intention that judges, despite their training and experience, must nevertheless expressly and consciously identify and explain both the permissible and impermissible uses of discreditable conduct evidence. While it ought to be obvious to a judge that they must not engage in the simplistic propensity reasoning which is defined as ‘the impermissible use’ under s 34P(1), and relatively easy for the judge to avoid doing so, the terms of s 34R(1) nevertheless require that a trial judge expressly direct himself or herself against what has been described as the ‘natural human instinct to engage in base propensity reasoning’.27 67 Finally, whilst an understanding of the forensic contest at trial will inform the content of the directions that must be given under s 34R(1), compliance with the obligation under that section does not turn upon any consideration of whether the judge or jury, as the case may be, has in fact made some impermissible use of the evidence. Even if a trial judge’s reasons for verdict provide a sound basis for inferring that the judge has not engaged in impermissible reasoning, this does not mean that there has been compliance with s 34R(1). The obligation under that section, while directed towards reducing the risk of impermissible reasoning being invoked, is expressed in mandatory terms which address the content of the directions that must be given rather than an outcome that must be achieved. 68 In summary, we consider that the trial judge was required by s 34R(1) to identify and explain the impermissible use of the domestic violence evidence proscribed under s 34P(1). He was required to direct himself not to engage in any process of reasoning to the effect that any violence the appellant was found to have engaged in towards SB’s mother made it more likely that he committed any of sexual acts alleged by SB. His description of ‘the only relevance’ of the domestic violence evidence did not adequately ‘identify and explain’ the use for which that evidence was not to be used. Nor was his warning against the impermissible use in the context of the sexual comments evidence adequate for this purpose. The fact that the parties did not seek to invoke any impermissible use of the domestic violence evidence, and that the trial judge’s reasons for verdict suggest that there 27 Collins v The Queen [2020] SASCFC 96 at [157] (Blue J, Peek and Stanley JJ agreeing). -- 16 of 24 -- [2024] SASCA 91 The Court 15 is little, if any, risk that his Honour in fact engaged in impermissible reasoning in respect of that evidence, is not sufficient to achieve compliance with s 34R(1). 69 In the circumstances, we are satisfied that the trial judge’s directions in relation to the domestic violence evidence did not comply with s 34R(1), and hence that Ground 1 has been made out. Ground 2: the sexual comments 70 The trial judge’s directions in relation to the use of the sexual comments evidence were contained in paragraph [180] of his reasons, and have been set out above. In short, the trial judge directed himself that this evidence, if accepted, was only relevant ‘in the context of some sexual interest in the complainant on the part of the accused’. His Honour added, however, that acceptance of the evidence did not mean that the appellant was more likely to have perpetrated the sexual acts. 71 In challenging the adequacy of these directions, the appellant accepts that the trial judge adequately identified and explained the impermissible bad person propensity use proscribed by s 34P(1). However, the appellant complains that the trial judge misdescribed the permissible use, and indeed did so in terms which involved confusion with an impermissible propensity use. 72 To explain, the permissible use of the sexual comments evidence relied upon by the prosecutor, and not objected to by the defence, did not involve any reference to a sexual interest in SB by the appellant. The permissible use of that evidence was confined to its use as explaining the nature of the relationship between SB and the appellant, and hence in providing a more complete picture of the context in which the alleged offending occurred. This was not a propensity use, and hence did not need to satisfy the ‘strong probative value’ required for the admission of evidence for a particular propensity use under s 34P(2)(b). It was enough that the probative value of the evidence outweighed any prejudicial effect. 73 The prosecutor expressly disavowed any reliance upon the sexual comments evidence as supporting any particular propensity use, based upon a sexual interest in SB, under s 34P(2). In so doing, the prosecutor was no doubt mindful of the authorities in single complainant cases suggesting that evidence of a sexual interest by a defendant in a complainant is unlikely to possess the ‘strong probative value’ required for that evidence to be under s 34P(2)(b) unless it is probative of a tendency to act on that interest. We refer in this respect to the reasons of the High Court in McPhillamy v The Queen28 and R v Bauer (a pseudonym),29 and the reasons of this Court in MDM v The Queen.30 74 Consistently with this position at trial, the respondent accepted, on appeal, that the sexual comments evidence, while admissible for the relationship use 28 McPhillamy v The Queen (2018) 92 ALJR 1045 at [27] (Kiefel CJ, Bell, Keane and Nettle JJ). 29 R v Bauer (a pseudonym) (2018) 266 CLR 56 at [51] (the Court). 30 MDM v The Queen (2020) 136 SASR 360 at [10] (Kourakis CJ, Kelly J agreeing). -- 17 of 24 -- [2024] SASCA 91 The Court 16 identified by the prosecutor at trial, was not admissible for any propensity use dependent upon the appellant having a sexual interest in SB. 75 To summarise, there were three potential uses of the sexual comments evidence: the permissible relationship use, the impermissible sexual interest use and the impermissible bad person use. 76 Returning to the appellant’s complaint about the adequacy of the trial judge’s directions in relation to the sexual comments evidence, the appellant contends that in directing himself as to the permissible use of this evidence the trial judge not only misdescribed the permissible relationship use, but did so in terms which embraced the impermissible sexual interest use. In this way, the trial judge failed to comply with his obligation under s 34R(1). Whilst Ground 2 was expressed in terms of a failure to identify and explain the permissible use of the sexual comments evidence (the relationship use), it might equally have been expressed as a failure to warn against an impermissible use of that evidence (the sexual interest use). 77 In responding to this challenge to the trial judge’s directions the respondent submits that, in circumstances where the prosecutor had expressly disavowed any reliance upon a sexual interest use, his Honour’s use of the words ‘sexual interest’ in paragraph [180] ought to be understood as merely an infelicitous description of the permissible relationship use rather than a direction permitting the impermissible sexual interest use. In our view, this asks too much of this Court. While it is appropriate to allow some flexibility in the way a permissible use is identified and explained when considering directions in a trial by judge alone, the difficulty here is that the words used by the judge are not only an inaccurate description of the permissible use, but they also invoke the very words (‘sexual interest’) that are routinely used in the authorities to describe a use which the parties agree was impermissible in the circumstances of the present case. As a consequence, this Court cannot have any confidence from the terms of the directions that the trial judge properly understood the permissible and impermissible uses of the sexual comments evidence. 78 The respondent makes the further point that, even accepting that the trial judge misdescribed, and potentially misunderstood, the permissible relationship use of the sexual comments evidence, this is of no consequence given the limited significance of that evidence at the trial (as exemplified by the absence of any reference to it in the parties’ closing addresses), and the fact that the trial judge made no further reference to it in the balance of the operative section of his reasons. 79 We accept the factual premise of this argument, namely that the sexual comments evidence was of limited significance at trial, and did not feature in any express way in the operative section of the trial judge’s reasons. However, we do not accept that this is an answer to the complaint that the trial judge failed to comply with his obligations under s 34R(1). As already explained, s 34R(1) is mandatory and prescriptive. Determining whether it has been complied with -- 18 of 24 -- [2024] SASCA 91 The Court 17 involves a focus on the terms of the directions given in relation to the discreditable conduct evidence, rather than any attempt to divine the use that the finder of fact might ultimately make of that evidence. 80 For the reasons given, Ground 2 has been made out. Common form appeal provisions 81 The appellant contends that the trial judge’s failure to comply with his obligation to give the directions required by s 34R(1) of the Evidence Act involved a ‘wrong decision on any question of law’ for the purposes of the second limb of the common form appeal provisions (s 158(1)(b) of the Criminal Procedure Act 1921 (SA)). The appellant further contends that, subject only to the application of the proviso in s 158(2) of the Criminal Procedure Act, he is entitled to an order setting aside the verdict below and ordering that there be a retrial. 82 The respondent, on the other hand, while accepting that a failure to comply with s 34R(1) involves an error of law, nevertheless contends that the notion of a ‘wrong decision on any question of law’ under the common form appeal provisions involves, or carries with it, a threshold requirement of materiality. Put another way, the respondent contends that only errors of law which are capable of affecting the outcome of a trial are sufficient to justify the appellate court’s intervention. 83 The appellant disputes that there is any threshold requirement of materiality inherent in the second limb of the common form appeal provisions. He contends that, having established an error of law in failing to comply with s 34R(1) of the Evidence Act, the Court must allow the appeal, subject only to any application of the proviso. 84 In support of this approach, the appellant relies upon the High Court’s consideration of the three limbs of the common form appeal provisions in Filippou v The Queen.31 In that case, French CJ, Bell, Keane and Nettle JJ said that the question for the second limb (‘wrong decision of any question of law’) was ‘whether the judge has erred in law in the sense of a departure from trial according to law’.32 Their Honours later added that this included ‘misdirections on matters of substantive law as well as misdirections on matters of adjectival law’.33 Importantly, both of these statements were supported by footnote references to a passage from the Court’s reasons in Weiss v The Queen34 in which their Honours referred to a miscarriage of justice under the old Exchequer rule encompassing ‘any departure from trial according to law, regardless of the nature or importance of that departure’. 85 The appellant argues that, given the High Court’s continued support for the approach taken to the common form appeal provisions in Weiss v The Queen, it 31 Filippou v The Queen (2015) 256 CLR 47. 32 Filippou v The Queen (2015) 256 CLR 47 at [9]. 33 Filippou v The Queen (2015) 256 CLR 47 at [13]. 34 Weiss v The Queen (2005) 224 CLR 300 at [18]. -- 19 of 24 -- [2024] SASCA 91 The Court 18 was appropriate that this Court take the approach it contended for. The appellant relies in this respect upon the relatively recent decision of the Queensland Court of Appeal in R v Tahiata.35 The Court in that case accepted that the second limb of the common form appeal provisions did not import any threshold requirement of materiality; that it did not require any consideration of the nature and effect of the error, or its capacity to affect the verdict. Relying upon the High Court’s continued adherence to the approach described in Weiss v The Queen, the Court took the view that these considerations only became relevant when applying the proviso. 86 In our view, the position is not as clear cut as the appellant suggests. There is some support in the authorities for a threshold requirement of materiality when considering whether an error of law is a wrong decision on a question of law for the purposes of the common form appeal provisions. 87 For example, in Filippou v The Queen,36 Gageler J described the second limb of the common form appeal provisions as involving ‘any error of law which was material to the way in which the trial judge arrived at the ultimate finding of guilt’. Then, in Hofer v The Queen,37 Gageler J undertook a more detailed consideration of the Court’s reasons in Weiss v The Queen, and in particular the Court’s reference to the Exchequer rule. His Honour explained that Weiss v The Queen was primarily concerned with the proper approach to the proviso, rather than the precise metes and bounds of the three limbs of the common appeal provisions. In his Honour’s view, the Exchequer rule, and the Court’s reference to that rule in Weiss v The Queen, should not be understood as encompassing errors or irregularities which could not have affected the result of the trial. Whilst his Honour’s reasons were focussed upon the third limb of the common form appeal provisions, they may nevertheless be seen as providing some support for a threshold requirement of materiality in respect of all three limbs of those provisions. 88 This would be consistent with Gordon J’s summary of those provisions in Hofer v The Queen. In describing the importance of distinguishing between the two steps of first, deciding whether a ground of appeal was established and second, considering whether the proviso may be applied, her Honour said that the former required an error which might have made a difference:38 The text of the provision reveals a fundamental difference between the two steps of first, deciding whether a ground of appeal is established and second, considering whether the proviso may (not must) be applied. One of the three kinds of grounds of appeal (verdict that is unreasonable or cannot be supported on the evidence; wrong decision on any question of law; and on any other ground whatsoever there has been a miscarriage of justice) will not be established if the mistake made at trial was one which could have had no effect on the outcome of the trial. That is, when considering whether a ground of appeal 35 R v Tahiata [2024] QCA 59 at [35]-[69] (Flanagan JA, Bowskill CJ and Buss AJA agreeing). 36 Filippou v The Queen (2015) 256 CLR 47 at [84]. 37 Hofer v The Queen (2021) 274 CLR 351 at [98]-[123]. 38 Hofer v The Queen (2021) 274 CLR 351 at [130]. -- 20 of 24 -- [2024] SASCA 91 The Court 19 is established it is necessary and sufficient for the appellate court to conclude that the error might have made a difference. 89 It is also noteworthy that Kiefel CJ, Keane and Gleeson JJ in Hofer v The Queen,39 when referring to the relevant passage from the Court’s reasons in Weiss v The Queen, spoke of any departure from a trial according to law ‘to the prejudice of the accused’. 90 Recently, in HCF v The Queen,40 albeit when addressing the third limb of the common form appeal provisions, Edelman and Steward JJ, in dissent as to the outcome, noted the differing approaches in Hofer v The Queen, and expressed their support for Gordon J’s approach, being an approach which focusses upon the capacity for the error or irregularity to affect the outcome, rather than whether it might or might not have actually done so. Their Honour’s spoke of an error or irregularity which had the capacity for practical injustice, or the capacity to prejudice consideration of the defendant’s case, but noting that this would generally follow from a failure to observe the rules of procedure and evidence. The majority (Gageler CJ, Gleeson and Jagot JJ) also took an approach which emphasised the need to consider the capacity for the error or irregularity to have affected the outcome, at least in respect of the third limb of the common form appeal provisions.41 91 In summary, it seems that the High Court is yet to reach a settled position in relation to the existence, and precise nature, of any threshold requirement of materiality in relation to the second and third limbs of the common form appeal provisions. The issue may be addressed by the High Court in the upcoming appeal from the Queensland Court of Appeal’s decision in R v MDP.42 92 All of that said, it is not necessary for this Court to express a concluded view as to whether the second limb of the common form appeal provisions carries a threshold requirement of materiality. Whilst contending for a threshold requirement, the respondent accepts that it is a low threshold and ultimately conceded that it would be satisfied in the circumstances of the present case. In other words, the respondent accepts that if this Court were to conclude that the trial judge failed to comply with s 34R(1) of the Evidence Act in the ways contemplated by Grounds 1 and 2, then it would be appropriate to proceed on the basis that the trial judge made a wrong decision on a question of law, with the result that the appeal should be allowed, subject only to the proviso. The failures complained of had at least some capacity to influence the Court’s assessment of the evidence, and hence to influence the conduct and outcome of the trial. However, the respondent maintained its submission that, because the trial judge’s reasons do not suggest that his Honour in fact used the evidence impermissibly, this would be an 39 Hofer v The Queen (2021) 274 CLR 351 at [41]. 40 HCF v The Queen (2023) 97 ALJR 978 at [75]-[82]; see also Huxley v The Queen (2023) 98 ALJR 62 at [40]-[44] (Gordon, Steward and Gleeson JJ). 41 HCF v The Queen (2023) 97 ALJR 978 at [2]. 42 R v MDP [2023] QCA 134. -- 21 of 24 -- [2024] SASCA 91 The Court 20 appropriate case in which to invoke the proviso and dismiss the appeal on that basis. The proviso 93 For this Court to apply the proviso, and dismiss the appellant’s appeal, s 158(2) of the Criminal Procedure Act requires that the respondent establish that ‘no substantial miscarriage of justice has actually occurred’. 94 Applying the approach required by Weiss v The Queen,43 as interpreted by subsequent High Court decisions, it is a necessary, but not sufficient, condition of the application of the proviso that the appellate court be satisfied, on the whole of the record (including the verdict), that the defendant was proved guilty of the offence charged. The standard of proof is, of course, proof beyond reasonable doubt. In the case of a trial with a jury, the assessment is not an exercise in divining or predicting what the jury, or some hypothetical jury, might have done. Rather, it involves the appellate court’s own assessment of the evidence, but mindful of the disadvantages of proceeding on the record, without having seen or heard the witnesses give evidence in the context of the trial as a whole. In some cases, such as where there are significant issues of contested credibility, the natural limitations of the appellate task will prevent satisfaction that a substantial miscarriage of justice has not occurred. 95 An equivalent approach applies in cases involving a trial before a judge sitting without a jury.44 96 In undertaking the above appellate task, it is relevant to consider the nature and effect of the error(s) made by the trial judge.45 That is because there will be some cases in which it may be said that the error would not, or at least should not, have had any significance to the verdict. However, in other cases, the nature of the error(s) will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. 97 In inviting this Court to apply the proviso, the respondent submitted that it was apparent from the trial judge’s reasons that neither his failure to warn against bad person reasoning in relation to the domestic violence evidence, nor his failure to accurately describe the permissible use of the sexual comments evidence, influenced his reasoning, or affected the verdict. As explained, the only explicit use the judge made of the domestic violence evidence was in the context of relying upon the complaint evidence as explaining how the allegations came to light; and the trial judge did not make any explicit use of the sexual comments evidence. The 43 Weiss v The Queen (2005) 224 CLR 300 at [41]-[45] (the Court); see, for example, Kalbasi v Western Australia (2018) 264 CLR 62 at [15] (Kiefel CJ, Bell, Keane and Gordon JJ), [112]-[113] (Nettle J). 44 AK v Western Australia (2008) 232 CLR 438 at [52]-[59] (Gummow and Hayne JJ); Filippou v The Queen (2015) 256 CLR 47 at [15] (French CJ, Bell, Keane and Nettle JJ); R v Becirovic [2017] SASCFC 156 at [286]ff (Lovell and Hinton JJ). 45 Weiss v The Queen (2005) 224 CLR 300 at [43]-[44] (the Court); Kalbasi v Western Australia (2018) 264 CLR 62 at [15] (Kiefel CJ, Bell, Keane and Gordon JJ), [113] (Nettle J). -- 22 of 24 -- [2024] SASCA 91 The Court 21 trial judge’s reasons do not include any reference to the judge engaging in impermissible reasoning in respect of either the domestic violence evidence or the sexual comments evidence. 98 Whilst these are relevant considerations, they are not conclusive. Even accepting, as we do, that the judge did not expressly engage in any impermissible reasoning, it is difficult to rule out that possibility. The operative section of his Honour’s reasoning, reproduced earlier in these reasons, is relatively succinct. Whilst his Honour identified various matters taken into account, his operative reasoning is ultimately expressed in relatively conclusory terms. In the circumstances, it is not possible for this Court to be confident that his Honour’s approach, and in particular his assessment of the complainant’s credibility and reliability in relation to her allegations of sexual offending by the appellant, was not influenced, even if only subconsciously, by any impermissible reasoning relating to the appellant’s discreditable conduct. 99 It may be accepted that a judge is less likely than a jury to have slipped into such reasoning, but in the absence of adequate directions, we do not think this Court can be sufficiently confident that this did not occur. Indeed, the express extension of the obligation under s 34R(1) (to identify and explain the permissible and impermissible uses of discreditable conduct evidence) to trial judges is predicated upon an assumption that there is otherwise a risk that even a judicial officer might err in this way. In the circumstances, this Court must be careful not to ascribe too much weight to the judge’s verdict.46 100 In circumstances where this was a trial that turned on the credibility and reliability of the complainant, and where there was a significant contest in relation to these matters, we do not think it is appropriate for this Court to reach a view as to whether the appellant’s guilt was proved beyond reasonable doubt. Just as was the case in the recent decision of this Court in Carr (a pseudonym) v The King,47 we do not think this Court can be satisfied from a consideration of the record that the complainant was incontrovertibly truthful and reliable. 101 The consideration that this was a trial largely ‘on the papers’, while relevant, is not a complete answer.48 It still leaves this Court in the difficult position of being unable to satisfactorily resolve difficult, and strongly contested, issues as to the credibility and reliability of the complainant’s evidence. 102 All things considered, we do not consider that this is an appropriate case in which to apply the proviso. 46 OKS v Western Australia (2019) 265 CLR 268 at [29] (Bell, Keane, Nettle and Gordon JJ). 47 Carr (a pseudonym) v The King [2024] SASCA 69 at [24] (Kourakis CJ, Lovell and Doyle JJA). 48 Pell v The Queen (2020) 268 CLR 123 at [36]-[38] (the Court). -- 23 of 24 -- [2024] SASCA 91 The Court 22 Conclusion and orders 103 A judge of this Court granted the appellant leave to appeal in relation to Ground 1. To the extent that he requires leave to appeal in relation to Ground 2, it should be granted. 104 We allow the appeal, set aside the verdict of guilty, and order that there be a retrial. -- 24 of 24 --