MANCINI v THE KING [2026] SASCA 83

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE WHITE) DCCRM-20-1472 Appellant: JOSEPH MANCINI Counsel: MR J HENDERSON - Solicitor: EVANS TESTA BARRISTERS & SOLICITORS Respondent: THE KING Counsel: MR M HINTON KC WITH MS S SMITH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 16/06/2026 File No/s: SCCRM-25-034395 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. MANCINI v THE KING [2026] SASCA 83 Judgment of the Court of Appeal (The Honourable Chief Justice Stein, the Honourable Justice S Doyle and the Honourable Justice Bleby) 30 July 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES CRIMINAL LAW - EVIDENCE - DEPOSITIONS - OF ABSENT WITNESS - PERSONS UNABLE TO ATTEND THROUGH DEATH OR ILLNESS - GENERALLY CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - POWER TO ADMIT EVIDENCE TAKEN IN EARLIER PROCEEDING CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - DIRECTIONS TO JURY This is an application for permission to appeal against conviction. Following a trial by jury, the appellant was convicted of sexual abuse of a child. -- 1 of 19 -- At trial, part of the prosecution case depended on the evidence of a Detective Anderson. Prosecution had intended to call Detective Anderson to give evidence at trial, however he was taken to hospital during the trial. The prosecution applied for Detective Anderson’s recorded evidence from a previous trial of the appellant to be received pursuant to s 13D of the Evidence Act 1929 (SA). This was opposed by the appellant because counsel intended to pursue a line of cross-examination on what was submitted to be a significant topic. The trial judge granted the prosecution application and Detective Anderson’s recorded evidence was received pursuant to s 13D. During the trial, evidence concerning five different kinds of discreditable conduct was called. After the trial judge gave directions about the discreditable conduct evidence, counsel for the appellant raised concerns that those directions had not appropriately distinguished between the permissible uses of the different groups of discreditable conduct evidence. The trial judge then gave further directions. The appellant raises two grounds of appeal, being that the trial judge erred: 1. As a matter of law in respect of his directions to the jury given pursuant to s 34R of the Evidence Act, in that the initial directions were deficient and that the further directions failed to remedy the deficiency; 2. By granting the prosecution application to admit the evidence of Detective Anderson pursuant to s 13D (or, alternatively, s 34KA) of the Evidence Act, on the basis that there was insufficient evidence about Detective Anderson’s illness and because of unfairness attended by the appellant’s inability to cross-examine the detective. Held, per the Court, granting permission to appeal and allowing the appeal on Ground 2: 1. The trial judge erred in concluding that the prosecution had established the pre-condition to his discretion to admit the record of Detective Anderson’s evidence from the previous trial under s 13D of the Evidence Act, namely that the witness had become “too ill or infirm to give evidence”. 2. The appellant’s conviction is set aside and the matter is remitted for retrial. Evidence Act 1929 (SA) ss 13D, 34KA, 34P, 34R, referred to. Carr (A Pseudonym) v The King [2024] SASCA 69; Gray v The Queen [2020] SASCFC 46; House v The King [1936] HCA 40; JGS v The Queen (No 2) (2022) 141 SASR 288; MDM v The Queen (2020) 136 SASR 360; R v B, AM (2015) 124 SASR 176; R v C, CA [2013] SASCFC 137; Sahlstorfer v The King [2026] SASCA 52, considered. -- 2 of 19 -- MANCINI v THE KING [2026] SASCA 83 Court of Appeal – Criminal: Stein CJ, S Doyle and Bleby JJA 1 THE COURT: The appellant was found guilty after a trial by jury on a charge of sexual abuse of a child. 2 The prosecution case at trial included the evidence of a police officer from Queensland, Detective Anderson. The prosecution had intended to call Detective Anderson to give evidence. However, during the trial, he was taken to hospital. The prosecution applied for Detective Anderson’s evidence to be received in the form of an audio recording of his evidence from a previous, aborted trial of the appellant. The appellant opposed that course because counsel intended to pursue a line of cross-examination on what was submitted to be a significant topic not canvassed at the previous trial. The trial judge granted the prosecution application and Detective Anderson’s recorded evidence from the previous trial was received pursuant to s 13D of the Evidence Act 1929 (SA). 3 The prosecution also led evidence concerning five different kinds of discreditable conduct. After the trial judge gave directions about the discreditable conduct evidence, counsel for the appellant raised concerns that the discreditable conduct directions had not appropriately distinguished between the permissible uses of the different groups of discreditable conduct evidence. Counsel for the appellant requested redirection and that course was not opposed by counsel for the prosecution. The trial judge thereafter gave further directions. 4 On appeal, the appellant contends that the initial directions in relation to the evidence of discreditable conduct were deficient and that the further directions failed to remedy the deficiency. 5 The appellant also complains about the admission of Detective Anderson’s evidence pursuant to s 13D on the basis there was not a sufficient basis to conclude that he was “too ill or infirm” to give evidence. He further contends that the trial judge erred in exercising his discretion to admit the evidence including because of the unfairness attended by the appellant’s inability to cross-examine the detective. 6 As explained in these reasons, the evidence proffered concerning Detective Anderson’s health condition was not sufficient to justify satisfaction that the detective had become too ill or infirm to give evidence during the remaining duration of the trial to enable the exercise of the discretion to admit the evidence from the previous trial. Accordingly, permission to appeal is granted and the appeal is allowed. The appellant’s conviction must be set aside and a re-trial ordered. 7 Although not strictly necessary, we have also made some observations about the other issues raised on appeal. -- 3 of 19 -- [2026] SASCA 83 The Court 2 The trial Prosecution case 8 The prosecution case was that the appellant started an unlawful sexual relationship with the complainant when he was 29 years old and she was 13 years old. The relationship was alleged to have commenced in 2010 and continued until the complainant was 17 years old. The prosecution alleged a number of different sexual acts. Defence case 9 The defence case was that the sexual acts described by the complainant did not occur. The appellant accepted that they had intercourse before their child was born and at a time when the complainant was 17 years old. The defence case challenged the credibility and reliability of the complainant and other witnesses. Among other things, the defence pointed to the complainant’s lack of memory about significant events, inconsistencies within her evidence and the statement given to police, and inconsistencies between the complainant’s account and those of other witnesses. The complainant’s recorded evidence 10 The prosecution case depended significantly upon the evidence of the complainant which was received by way of a video recording of her evidence taken in earlier proceedings pursuant to s 13D of the Evidence Act. The first trial could not be completed because the appellant had to be admitted to hospital partway through giving his evidence. 11 The complainant gave evidence that she had first met the appellant in 2010 while walking in the street alone late at night. The appellant drove past her, pulled over and asked if she wanted to go to a party and she said yes. The complainant gave evidence that the appellant took her to his cousin’s house where they drank alcohol, smoked methylamphetamine and cannabis and the appellant kissed her in the car when returning her home. During their first meeting, the appellant told the complainant that he was 25 years of age and the complainant told the appellant that she was 16 years old. In fact, the appellant was 29 and the complainant was 13. 12 Soon after, the complainant met the appellant again. The appellant picked her up in his car and took her to the cellar at his parents’ house. The complainant alleged that she and the appellant engaged in intercourse and an unlawful sexual relationship commenced. During the time the complainant spent at the appellant’s parents’ house, sexual acts occurred primarily in the cellar. That cellar had a separate, external entrance and was not accessible directly from the house. The complainant said she was not allowed to use the bathroom in the main house without permission. The cellar had no running water or a bathroom, so the complainant was forced at times to go to the toilet outside under a tree or using a bucket. -- 4 of 19 -- [2026] SASCA 83 The Court 3 13 In 2010, the complainant left South Australia to return to live with her father in Queensland. She kept in contact with the appellant by phone. The complainant was taken to hospital with an injury to her hand which occurred during an incident involving her father. She had attempted to take a knife from him, to prevent him from engaging in self-harm, and cut her hand. She contacted the appellant who booked a ticket and travelled to Maryborough. 14 When the appellant arrived, the complainant was staying at Ms L’s house. Ms L was the mother of the complainant’s friend AL. The appellant spoke to Ms L and discovered the complainant’s real age. According to the complainant, he then left but returned soon after. The appellant, the complainant, AL and another friend then left Ms L’s house. They drove around for a while before returning AL and the friend home. The appellant and the complainant went to a motel in Maryborough. They stayed overnight at the motel. The complainant said they had intercourse in the shower and then in the bed. There were two beds in the room, a double and a single, and the complainant said they both slept in the double bed. They were woken up the next morning by five or six police officers. The complainant’s father was also there. 15 The police questioned the appellant and the complainant about their relationship. The complainant was also questioned by child protection officers from the Department of Child Safety. The complainant said she lied to the officers and told them that she and the appellant were just friends. She said she had lied because she loved the appellant. The complainant said they were then allowed to leave, and went together to Hervey Bay. She gave evidence of having sexual intercourse with the appellant when they stopped over in Hervey Bay. They then flew back to South Australia together. 16 The complainant said that when they returned to South Australia, she began living in the cellar of the appellant’s parents’ house, although there were some periods of time when she lived elsewhere. 17 The unlawful sexual relationship was maintained until the complainant turned 17 years of age on 2 October 2013. On 7 August 2014, a child was born of the complainant and appellant. At around that time, the pair moved in and lived together for about two and a half years before separating. Evidence of other witnesses 18 A friend of the complainant gave evidence that she had stayed in the cellar overnight and that during the night she saw the appellant and complainant having intercourse. She gave evidence that she saw the appellant and the complainant kissing and touching when they went to see a movie. 19 Ms L, the mother of the complainant’s friend AL, gave evidence that the complainant sometimes stayed at her house in Maryborough. Ms L recalled an occasion when the appellant came to collect the complainant from her house. They had a conversation in which she asked him if he knew how old the complainant -- 5 of 19 -- [2026] SASCA 83 The Court 4 was. Ms L told the appellant that the complainant was 13 or 14, not 18 years of age. The complainant told Ms L she was going back to South Australia with the appellant. Ms L then called the complainant’s father to say that the complainant had left with a man from South Australia. Detective Anderson’s recorded evidence 20 During a previous trial in 2024, Detective Anderson gave evidence that he was a detective senior constable attached to the Child Protection Offender Registry within the Crime Command of Queensland Police Service. In 2011, he was part of the Child Protection Investigation Unit based at the Maryborough police station. Detective Anderson had been a police officer for about 29 years. His evidence at the earlier trial was audio recorded and, in circumstances explained below, was admitted at the second trial pursuant to s 13D of the Evidence Act. 21 Detective Anderson had first come across the complainant when she was about 11 or 12 years old. Over the period of 2009 – 2011, he came across her from time to time, as Maryborough was a small place. Detective Anderson described the complainant’s environment as a bit toxic stating that, she had a toxic environment with her father, and was surrounded by alcohol and drugs. He would see her in the street at all hours with other kids or with older people. Sometimes, information came to them from the Department of Child Safety. If he came across the complainant and thought she was in a risky situation, he would personally take her to the houses of parents of friends of the complainant, often Ms L. 22 Detective Anderson was not involved in dealing with the incident between the complainant and her father in about February 2011 when the complainant had cut her hand. However, in the days after, he went to Maryborough motel. He had received a telephone call from the complainant’s father in relation to information that the complainant was at the motel with an older man. He could not recall the precise time but had recorded the job on the police computer system at about lunchtime, so he must have attended in the morning. 23 When Detective Anderson went to the motel, he located the complainant with the appellant. The appellant and the complainant were standing at the door of the motel room, which was open. Detective Anderson said he made some quick observations and observed that the room had two beds – a double and a single – but that only the double appeared to have been slept in. He said that the other bed was made quite neatly whereas the double had been disturbed with the sheets pulled back. He said that the complainant explained that her friend, the appellant, had come from South Australia to take her back to South Australia. Detective Anderson then transported the complainant to the child safety office to speak to Mr Forrest, a child safety officer. He understood that the complainant was ultimately released by the Department of Child Safety with permission to travel back to South Australia with the appellant. 24 Detective Anderson agreed under cross-examination that the complainant had a problematic relationship with her father. He had seen them together and -- 6 of 19 -- [2026] SASCA 83 The Court 5 accepted that her father was quite often intoxicated. He agreed that part of his role was to protect children such as the complainant. 25 Detective Anderson could not recall how many other officers attended at the motel. He recalled that a uniformed patrol had arrived first and thought that perhaps at least two other officers were present. He thought he must have spoken to the appellant because he recorded the appellant’s personal details in his notebook. Detective Anderson did not think he was present during the meeting with the child safety officer but left the complainant with them to decide what would occur. He said he would not just have dropped the complainant there. He would have spoken to someone but could not recall the details of any conversation or whether he told them about what he had seen at the motel room. 26 Detective Anderson could not recall meeting with the appellant and the complainant after the meeting with the child protection officers. He could not recall escorting them out of town because of concern about what actions the complainant’s father might take. He said “perhaps” he might have thanked the appellant for looking after the complainant because he knew the complainant had come from South Australia and was going back to South Australia to start a new life. Given the circumstances in which she was in Maryborough, he said that “if that was factual then [they] were thankful for that”. Detective Anderson could not recall saying to the appellant that they needed to get him and the complainant out of town to a safe place, that they would be under safe escort or that he could see the appellant was trying to do the right thing. 27 Detective Anderson was not asked any questions during cross-examination about the state of the motel room in Maryborough where he found the complainant and appellant. The appellant 28 The appellant did not give or call evidence at the trial. Closing addresses 29 During closing addresses, among other things, the prosecution relied on Detective Anderson having seen the appellant and complainant in the motel room in Maryborough and having observed that while there was more than one bed, only one bed appeared to have been slept in. 30 In closing, the appellant questioned the reliability of the witness who said she stayed over at his parents’ house and saw the pair having sex in the cellar, including because of the effluxion of time, the fact that the witness had been drinking and smoking cannabis and that the lights were off. He drew attention to inconsistencies within the complainant’s evidence and between her evidence and the evidence of other witnesses. 31 The appellant pointed to the timing of his trip to Maryborough, after the complainant was released from hospital with her cut hand, as explaining the -- 7 of 19 -- [2026] SASCA 83 The Court 6 purpose of his trip. He also pointed to the timing of the movements of the complainant and the appellant as indicating the improbability of the complainant’s account. He referred to Detective Anderson’s observations of the motel room and submitted that if the police had found anything, there would be evidence of it. He further submitted that had that been the case, there was no way that Families Queensland would have allowed him to take custody of the complainant and return her to South Australia. Consequently, that ought to alleviate any suspicion the jury may have had about that aspect of the evidence. Ground 2 – the s 13D ruling allowing the admission of the recorded evidence of Detective Anderson 32 As Ground 2 is dispositive of the appeal, we address that ground first. Section 13D of the Evidence Act provides: 13D—Court's power to admit evidence taken in earlier proceedings (1) If, on application by a party to civil or criminal proceedings before a court, the court is satisfied that— (a) evidence given by a witness in earlier criminal proceedings is relevant to the proceedings before the court; and (b) the witness— (i) has died; or (ii) has become too ill or infirm to give evidence; or (iii) has not, after diligent search, been found; or (iv) is a vulnerable witness, the court in the later proceedings has a discretion to admit an official record of the evidence. (2) An official record of evidence is a record made at the direction or with the approval of the court before which the evidence was taken and, if an audio or audio visual record of the evidence was taken at the direction or with the approval of the court, in addition to a written transcript, the official record of evidence includes the audio or audio visual record. (3) Before the court admits an official record into evidence in proceedings under this section, the record must be edited— (a) as agreed between the parties to those proceedings so as to exclude material that is not relevant to those proceedings; and (b) so as to exclude evidence that is inadmissible in those proceedings for any other reason. (4) If the court admits an official record into evidence under this section, it may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings. 33 For the following reasons, the evidence was not sufficient to establish that Detective Anderson was too ill or infirm to give evidence during the trial, as contemplated by s 13D(1)(b)(ii). -- 8 of 19 -- [2026] SASCA 83 The Court 7 Application for the admission of Detective Anderson’s evidence 34 The prosecution had intended to call Detective Anderson to give evidence by AVL. Towards the end of the trial, the prosecutor informed the Court that Detective Anderson had been admitted to hospital in relation to a possible relapse of a brain aneurysm he had the previous year. The prosecutor said Detective Anderson was able to speak and thought he might be able to give evidence possibly by AVL that afternoon. However, he was waiting for advice from specialists. The prosecutor said that Detective Anderson was an important witness on the prosecution case. 35 After lunch, the prosecutor informed the Court that they had not been able to get hold of Detective Anderson but queried whether, even if they could, he would be fit to give evidence. The prosecutor indicated that it would be necessary to put some material before the trial judge about that issue. That afternoon, the prosecution filed an interlocutory application seeking to adduce the evidence of Detective Anderson from the previous trial pursuant to s 13D or, alternatively, s 34KA of the Evidence Act. The application was supported by a medical certificate of a general practitioner dated 28 July 2025 which read: This is to certify that Mr Edward Anderson is unable to work from Monday, 28 July 2025 to Tuesday, 29 July 2025 inclusive due to a medical condition. 36 It transpired that the audio recording of the evidence of Detective Anderson was still available. 37 The following day, there was no update on Detective Anderson’s condition, and the application was argued. In support of the application, the prosecutor submitted that Detective Anderson had been cross-examined at length during the previous trial on forensic issues that appeared to be the same and that it followed there was no real forensic disadvantage to defence. The prosecutor submitted that Detective Anderson had given relevant and probative evidence, particularly in relation to his observations of the state of the motel room. On the prosecution case, that was said to be highly probative of the relationship that existed between the complainant and the appellant. The prosecutor submitted that the existence of the audio recording enabled the jury to hear the evidence rather than simply reading it. 38 The trial judge referred to the decision of R v B, AM,1 in which the Court was critical of the lack of supporting affidavit in support of an application under s 13D. The prosecutor submitted that R v B, AM2 was distinguishable as they had provided a medical certificate, and this was not a case of the witness preferring not to attend to give evidence. 39 The prosecutor understood that Detective Anderson had been transferred to Brisbane to see a specialist and, while not wishing to give evidence from the bar 1 (2015) 124 SASR 176. 2 (2015) 124 SASR 176. -- 9 of 19 -- [2026] SASCA 83 The Court 8 table, submitted that it was not surprising that a general practitioner had said that Detective Anderson was unfit. At the time, Detective Anderson had been seen and sent to hospital. The general practitioner could not go beyond that. Until the specialist saw Detective Anderson and could give evidence about what was actually occurring, the medical certificate was the best it was going to get. 40 The prosecutor said that the previous day, Detective Anderson was in the emergency department. She understood that Detective Anderson’s transfer to the specialist was as a hospital inpatient. The judge expressed concern that all that had been provided was the certificate and the submissions based on instructions. His Honour raised the prospect of someone giving evidence by way of affidavit or brief oral evidence about the situation. 41 Defence counsel opposed the application, submitting that the evidence, comprising only the medical certificate, was insufficient. There was no information about when Detective Anderson might be available or whether his condition would prevent him from giving evidence on an ongoing basis. Defence counsel submitted that Detective Anderson was an important witness whose evidence was central to a key aspect of the prosecution case, being relied on to establish the appellant’s sexual interest and propensity to act upon it. Detective Anderson’s evidence was one of only two other pieces of evidence independent of the complainant about the nature of the relationship. 42 Defence counsel accepted that Detective Anderson’s evidence had previously been tested in cross-examination by counsel retained at the previous trial. However, counsel submitted it was fundamental to a fair trial that the jury see and hear Detective Anderson and that counsel have an opportunity to cross- examine him. The appellant had retained different defence counsel. Counsel submitted that he had made different forensic decisions. Counsel intended to engage in a far more expansive cross-examination of Detective Anderson. 43 Counsel explained to the judge the nature and extent of that proposed cross- examination and the reasons for it. Among other topics, counsel proposed to cross- examine about what Detective Anderson saw at the motel room. Counsel intended to cross-examine in some detail about the state of the room and what the detective did including whether he went into the room and examined the bed sheets. This had not been the subject of cross-examination at the prior trial. Then, among other topics, counsel intended to ask questions to explore Detective Anderson’s experience and training in child protection and his knowledge of and relationship with the complainant. 44 This proposed cross-examination was intended to support a submission that this experienced officer, who was familiar with the complainant, did not see anything untoward and was content to allow the complainant to leave with the appellant. It was intended to undermine the reliability of Detective Anderson’s evidence concerning the state of the motel room and the inferences which may have been drawn from the state of the beds. Further, it was intended it would lay -- 10 of 19 -- [2026] SASCA 83 The Court 9 the foundation for a submission that, if Detective Anderson had thought the appellant had slept in the same bed as the complainant, it was likely he would have responded differently. 45 After questioning from the trial judge, defence counsel accepted that counsel in the previous trial had laid a foundation for a similar submission. However, he submitted he could have developed that submission significantly. Counsel also submitted that the timing of the application under s 13D led to unfairness because it left him unable to address contingencies. For example, if he had been on notice prior to the trial that Detective Anderson was not available, steps could have been taken to mitigate the prejudice, including considering calling other witnesses. The trial judge’s ruling 46 The judge accepted that the medical information provided was accurate and there was no question of the relevance of Detective Anderson’s evidence to the trial issues. He considered that the condition of Detective Anderson was very serious, based on the information conveyed to the prosecutor concerning his unexpected admission to hospital. 47 The judge took into account defence counsel’s submission that he intended to undertake a far more extensive cross-examination than the previous trial counsel. However, he considered it significant that the previous trial counsel had cross-examined both the complainant and Detective Anderson. The cross- examiner was aware of the previous trial issues, which remained the same. It was not alleged that the previous cross-examiner acted in any way other than in the best interests of the appellant in making a decision not to cross-examine Detective Anderson more extensively. The judge said the cross-examination of previous counsel was perfectly rational and understandable as a forensic choice. That cross- examination was conducted competently and was based on a forensic decision that was discernible on the evidence elicited. 48 On this basis, the judge concluded that the evidence should be admitted in the unpredictable and unusual circumstances that arose, and allowed the application. The operation of s 13D 49 Section 13D of the Evidence Act confers a discretion to admit the record of a witness’ evidence from earlier criminal proceedings, and a discretion to relieve that witness from an obligation to give evidence in the later proceedings. 50 As explained by the Court of Criminal Appeal in R v B, AM,3 in considering the operation of s 13D, it is important to commence with the common law position that there is a fundamental right to test, through cross-examination, material which is to be used against an accused, and that it is ordinarily fundamental to a fair trial that the jury see and hear a witness – including under cross-examination – in order 3 (2015) 124 SASR 176 at [33]-[34] (Sulan and Peek JJ, Kourakis CJ generally agreeing). -- 11 of 19 -- [2026] SASCA 83 The Court 10 to make an assessment of their evidence. Section 13D represents a policy decision by the legislature to create an exception to this position, in recognition of the public interest, in certain circumstances, of the jury having the benefit of a witness’ evidence even without the accused having the ability to test it in the ordinary way. Whilst this exception to the common law position must be given proper effect, the operation of s 13D, and the discretion which it confers, should nevertheless be approached having regard to the ordinarily fundamental nature of the right and opportunity which it qualifies. 51 It is a pre-condition to the exercise of the court’s discretion under s 13D(1) of the Evidence Act to admit evidence of a record of relevant evidence given by a witness in earlier criminal proceedings that the court is satisfied that the witness, relevantly to this case, “has become too ill or infirm to give evidence”. It is to be accepted that what may be necessary to satisfy this pre-condition should be approached in a pragmatic and flexible manner that has regard to the circumstances and exigencies of the particular case. 52 In some cases, information provided from the bar table may suffice. However, in other cases, particularly where defence counsel has, for apparently legitimate reasons, challenged satisfaction of the pre-condition, it may be necessary to require some evidence. Further, precisely what type of illness or infirmity may be necessary to satisfy the pre-condition may also depend upon the nature of the case, and the significance of the witness’ evidence. It may also have a temporal aspect to it, in the sense that it may be necessary to have regard to the witness’ condition not only at the very moment at which it was intended that he or she would give evidence, but also his or her potential ability to give evidence within a timeframe which is consistent with the orderly and fair conduct of the trial. Whether there was a proper basis to employ s 13D 53 In the present case, Detective Anderson’s evidence, whilst not critical, was significant. It was said to support a conclusion that the appellant had engaged in sexual acts with the complainant in a Queensland motel, which was in turn said to support a relevant propensity (namely, a sexual interest in the complainant on which the appellant was prepared to act). In particular, Detective Anderson’s observation that it appeared that only one of the beds in the motel room had been slept in was said to support an inference that the appellant and complainant had engaged in sexual activity in that motel room. 54 Whilst Detective Anderson had been cross-examined by different defence counsel at the earlier trial, defence counsel at the later trial outlined a legitimate forensic purpose for wishing to embark upon a different line of cross-examination. He intended to ask Detective Anderson for further detail of the observations he made with a view to establishing that, had he considered that there was anything which indicated that the appellant and the complainant had engaged in sexual -- 12 of 19 -- [2026] SASCA 83 The Court 11 activity, then he would not have facilitated the complainant’s return to South Australia with the appellant in the way he did. 55 Given the significance of Detective Anderson’s evidence, and the identification of a legitimate forensic purpose for wishing to cross-examine him before the jury, it was appropriate for the appellant to oppose the admission of his evidence under s 13D, including by challenging the basis for any conclusion that he was “too ill or infirm to give evidence”. 56 In our view, in the circumstances described, there was not a proper basis for the trial judge to be satisfied that this precondition to the discretion under s 13D had been established. As the issue had arisen suddenly, it was understandable that the prosecutor was initially able to do no better than inform the Court from the bar table that the witness had been admitted to hospital to determine whether he was experiencing a relapse of a brain aneurysm he had suffered the previous year. However, when the matter was raised again later that day, and the following morning, the only other information provided to the Court was a medical certificate to the effect that the witness was “unable to work” either the previous day or that day. 57 Even allowing for the obvious seriousness of a potential relapse of a brain aneurysm, we consider that the judge was not in a position to be satisfied that Detective Anderson was “too ill or infirm to give evidence” in the sense contemplated by s 13D(1)(b)(ii). The judge could have, and in our view should have, required a further enquiry and update. In circumstances where the witness had been in a position to speak with the prosecutor the previous day (and was described as “completely compos” and indeed thinking he might be able to give evidence later in the day), there was a real prospect that enquiries would have provided the Court with the information necessary to reach a more certain conclusion about Detective Anderson’s ability to give evidence in a manner and timeframe which was consistent with the orderly and fair conduct of the trial. If those enquiries had revealed that the witness was indeed experiencing a serious medical condition, with uncertain prospects of recovery, then there would likely have been a proper basis for satisfaction that he was too ill or infirm to give evidence. However, if those enquires had revealed that the witness had recovered, or it was otherwise realistic to think that he might be able to give evidence within the next day or two, then there may not have been a proper basis for that satisfaction. 58 In short, the circumstances required more information. There was not a proper basis for concluding that Detective Anderson was too ill or infirm to give evidence, and the judge erred in concluding otherwise. 59 It follows from this that the appeal must be allowed. It is thus not strictly necessary to address the other issues raised by the appeal. However, it is appropriate to make the following observations. -- 13 of 19 -- [2026] SASCA 83 The Court 12 Exercise of discretion 60 Assuming there had been a proper basis for concluding that Detective Anderson was too ill or infirm to give evidence, such that the discretion to admit a record of his evidence had been enlivened, we have a concern about the judge’s approach to the exercise of this discretion. 61 In deciding to admit the evidence, the judge emphasised that at the earlier trial the then counsel for the appellant had conducted a competent cross- examination of Detective Anderson. Whilst this was a relevant consideration, it appears that the judge saw this consideration as not only relevant, but also as an effective antidote to any prejudice that might otherwise arise from the inability of the appellant’s new counsel to undertake the cross-examination which he had indicated he wished to undertake. Whilst a court should be appropriately cautious in accepting bare assertions about intended cross-examination, in this case counsel for the appellant had set out in some detail the line of cross-examination upon which he intended to embark. He detailed what was, in our view, a legitimate basis for challenging the significance of Detective Anderson’s evidence to the propensity contended for by the prosecution. 62 Accepting, as we do, that the appellant’s counsel identified a legitimate forensic purpose for the intended (additional) cross-examination, we have some reservations about the judge’s focus upon the competence of the earlier cross- examination by different counsel in the different forensic context of the earlier trial. 63 That said, it is not necessary to reach a concluded view as to whether this involved any error in the exercise of the judge’s discretion. It is thus also not necessary to reach a concluded view as to whether the “discretion” to admit evidence under s 13D is a discretion in the sense necessary to attract the principles of appellate restraint in House v The King,4 or whether it is more accurately to be understood as a decision which is evaluative in nature but nevertheless reviewable in accordance with the standard of correctness. Ground 1 – discreditable conduct Discreditable conduct evidence 64 The complainant’s evidence about sexual intercourse in motel rooms in Maryborough and Hervey Bay in Queensland related to uncharged acts because the conduct occurred outside South Australia. However, the Crown relied upon that conduct as discreditable conduct for a propensity purpose pursuant to s 34P(2) of the Evidence Act. The defence was placed on notice that the prosecution intended to lead the discreditable conduct evidence in relation to those sexual acts to demonstrate the appellant’s sexual interest in the complainant, and a willingness 4 (1936) 55 CLR 499. -- 14 of 19 -- [2026] SASCA 83 The Court 13 to act upon it, such that it was more likely that he had committed the charged offence. 65 The prosecution relied on additional categories of discreditable conduct evidence. However, these were not relied on for a propensity purpose. Rather, they were admitted pursuant to s 34P(2)(a) of the Evidence Act for the permissible use of assessing the nature of the relationship between the complainant and the appellant. These other categories were as follows: • the living arrangements in the cellar of the appellant’s parents’ house; • the appellant’s use, together with the complainant, of methylamphetamine and cannabis and the complainant’s use of alcohol as a child in the presence of the appellant; • the appellant displaying controlling behaviour directed towards the complainant; and • the intercourse between the appellant and complainant when she was 17 leading to her pregnancy. The summing up 66 The judge gave a number of standard directions to assist the jury in its task. When turning to the topic of “discreditable conduct allegations”, he said such allegations could be illegal or simply be discreditable to a person without being illegal. His Honour then continued as follows: I want to raise the following matters that you might find discreditable when considering the evidence against Mr Mancini. I am not saying you necessarily will, but these are topics that may lead you to come to a conclusion. The first one I raise is the living arrangements and conditions in the cellar. The second topic is the drug use, including allegations of smoking dragon or, as I understood, methylamphetamine, in a bong or pipe-type situation, and also cannabis or marijuana. Included in that, I want to of course mention underage drinking or the tolerance of underage drinking. The third topic is allegations of controlling behaviour by Mr Mancini, as alleged by [a witness] and by [the complainant]. The fourth one is something Mr Henderson raised, that there may be disquiet amongst some of you that Mr Mancini and [the complainant] engaged in sex when she was 17, that although that’s legal, it led to her pregnancy with her son and his son, [name redacted]. The final topic is uncharged acts of intercourse in Queensland at the Maryborough Hotel in the shower and then in the bed as alleged and then at Hervey Bay. So, I will identify those topics and I am going to give you – the first break will be long enough for you to get a drink, tea or coffee, so we will resume at quarter past 11. After that, there might be one more break which will only be about five or 10 minutes. All right, so, we will have the extended break now. 67 The judge indicated to counsel, in the absence of the jury, that he intended to direct in relation to s 34P(2)(b) concerning the uncharged acts of intercourse in Queensland going to propensity towards her, and an interest in acting on that interest sexually, and on the other topics as relationship-based. Defence counsel -- 15 of 19 -- [2026] SASCA 83 The Court 14 took no issue with that but raised a concern about a different topic. After the jury returned, the judge informed the jury that it had been “politely pointed out” to him that he could have been clearer on some points. He had accepted that criticism, and he was going to revisit the topic. That topic was initial complaint evidence. 68 The judge then continued to address discreditable conduct as follows: Back to what I have called discreditable conduct, and those five topics I raised. Like many directions of law, I want to tell you how you may use the evidence; and just as importantly, how you must not use the evidence. I will begin with how you may use it. If you accept this evidence on these topics that I have set out, you are entitled to reason in the following ways: the first is: this evidence shows that Mr Mancini had a sexual interest in [the complainant] and has acted on that interest on other occasions. Here a great deal of focus on that might be your consideration of the evidence of alleged sexual acts in Queensland, in the shower, and in the bed, as she alleged at the Maryborough Hotel; and again sexual acts at the Hervey Bay Hotel or Motel. Therefore you may use that evidence to find that Mr Mancini was inclined to act on that interest, as the prosecution allege, solely on [the complainant]. If so, you may think that this makes it more likely that he acted on that interest by committing the alleged offence as set out of sexual abuse of a child. Of course you will need to consider all of the evidence when deciding whether the charge is proved beyond reasonable doubt. The second way you may use it is to help you understand and assess the direct evidence of [the complainant] of the alleged sexual acts that are the basis of the charge. In particular you can use the evidence to show [the complainant] is not saying the offending occurred out of the blue. Without this evidence of the situations as alleged against him of the – and I have listed them: the living arrangements in the cellar as alleged; the drug use and underage drinking as alleged; the allegation of violent and controlling behaviour; and the legal act that may be discreditable of conceiving [name redacted]. Without this evidence you may think it implausible that Mr Mancini committed the alleged sexual abuse with no lead-up. It may help you also explain why [the complainant] reacted as she said she did. Again, without this evidence you might think it is implausible that after the alleged abuse, [the complainant] basically outwardly behaved as if nothing unusual had happened. Finally it might show you why Mr Mancini felt able to act as he did on that occasion and did not fear that she would report him, or did not expect that she would report him. They are the only ways you may use this evidence. You must not use it for any other purpose. I am about to tell you particularly what you must not use it for. You must not use the evidence to reason simplistically that merely because he has been involved in sexual actions in the past, that he is a bad person, and therefore he is more likely to have committed the crime. Reasoning in that way is wrong and unfair, and must not happen. I must also warn you about this: you must not allow the evidence to distract you from the need to consider whether the prosecution has proved the charge beyond reasonable doubt. -- 16 of 19 -- [2026] SASCA 83 The Court 15 You cannot reason that Mr Mancini has done something of a sexual nature, for instance as an example, outside of the jurisdiction in Queensland, so therefore that is enough to prove he committed the alleged sexual abuse that he faces as a charge. That sort of reasoning is wrong and unfair, and you must not do it. 69 At the next break, defence counsel raised a concern in relation to the discreditable conduct directions. Counsel submitted that the jury might have thought the permissible uses identified by the judge applied to all categories of discreditable conduct, whereas the propensity use only related to the interstate acts of sexual intercourse, consistent with the confined s 34P notice. He reiterated that the permissible uses of the other categories of discreditable conduct were to prove relationship evidence, context and narrative. He requested a distinct delineation between the permissible use of the sexual conduct and the other categories of discreditable conduct. He submitted that there was a risk that the summing up allowed the jury to use all of the discreditable conduct for propensity purposes. 70 The prosecutor confirmed that she had elected not to include anything other than the interstate uncharged sexual acts in the propensity notice and, accordingly, did not speak against what defence counsel had asked. She submitted that the evidence about the cellar was not admissible for a propensity purpose, but rather related to opportunity and having the complainant in that location. The judge then indicated that he would limit the sexual interest use to the uncharged interstate acts, with the rest of the categories being evidence of the interactions between the complainant and appellant. 71 The judge then redirected the jury in the following terms: Ladies and gentlemen, there is a quick backtrack, very quick. It is back to what I called discreditable conduct, and those five categories I gave you, the last of which was the uncharged acts of intercourse in Queensland at the Maryborough Hotel and Hervey Bay. I gave you directions firstly about sexual interest, on the prosecution case, is shown by these acts in Queensland by – that is, Mr Mancini’s sexual interest in [the complainant], and he has acted on that on other occasions in South Australia. The other four categories do not fit into that use sought by the prosecution. The other four categories ask you to focus on the interactions and arrangements between Mr Mancini, on the prosecution case, and [the complainant]. That is, the prosecution evidence suggests, on their case, that these other four categories show the true nature of the interactions in the relevant time period between them. The Queensland one also has that capacity. So, the Queensland one is only to be used about the prosecution argument that it shows sexual interest and he has acted on it, but also can be used in the interaction group I put for the other four. But the other four cannot go to the sexual interest line of thinking, the prosecution ask you to accept. Principles 72 Section 34P of the Evidence Act sets out preconditions to the admissibility of evidence of discreditable conduct. Where evidence is admitted pursuant to that provision, s 34R of the Evidence Act requires the judge to identify and explain to -- 17 of 19 -- [2026] SASCA 83 The Court 16 the jury the purpose for which the discreditable conduct evidence may be used and may not be used.5 An explanation of what is a permissible use is as important as an explanation of any impermissible use, as that will assist in reducing the risk that the jury will fall into impermissible use.6 It is necessary to consider the issues and the forensic contest in the case to determine whether there has been compliance with s 34R. On an appeal, the question is whether the directions are sufficient to ensure that the jury understood the permissible use and that there is no risk that the evidence of discreditable conduct might have been used for an impermissible use.7 73 When considering the content of a redirection, the starting point is to determine the nature of the error and the issue to which it relates. This is necessary to determine the significance of the error in the context of the forensic issues at trial because that will inform what is required by way of redirection.8 Significant errors of fact or law may require more detailed explanation than quick correction.9 Where the issue is important, redirection requires clear instruction that the previous direction was incorrect and the jury must not use the evidence the way that the first direction suggested.10 The directions 74 Some of the evidence falling within the categories identified above was potentially probative of a relevant propensity, at least in the limited sense that it might be seen as involving conduct intended to create an opportunity for sexual activity with the complainant. However, only the evidence of sexual intercourse having occurred in Queensland was admitted for that purpose or use. The other categories were only admitted for a relationship or contextual purpose or use. 75 In these circumstances, the judge’s initial directions were inadequate, as they did not make clear this delineation between the categories of evidence in terms of their permissible use. Whilst the terms of the redirection did address this delineation, they did not do so in a clear way. By introducing the redirection in terms that described it as a “quick backtrack, very quick”, the judge risked undermining the importance of the redirection in entirely re-framing his earlier directions about the permissible use of the evidence of discreditable conduct. 76 There was a further difficulty with the initial directions in that they articulated the impermissible use of the evidence in terms that anchored that impermissible use in reasoning which was focussed upon “sexual actions” or actions “of a sexual nature”. The impermissible use was broader than this. It is not clear that the judge’s directions adequately conveyed to the jury that it was impermissible to use 5 MDM v The Queen (2020) 136 SASR 360 at [140] (Peek J); Carr (A Pseudonym) v The King [2024] SASCA 69. 6 R v C, CA [2013] SASCFC 137 at [96] (Kourakis CJ, with whom Anderson and Nicholson JJ agreed). 7 JGS v The Queen [2020] SASCFC 48 at [97] (Lovell JA); Carr (A Pseudonym) v The King [2024] SASCA 69. 8 Gray v The Queen [2020] SASCFC 46 at [23] (Lovell J). 9 Gray v The Queen [2020] SASCFC 46 at [23] (Lovell J). 10 Gray v The Queen [2020] SASCFC 46 at [26] (Lovell J). -- 18 of 19 -- [2026] SASCA 83 The Court 17 any of the categories of evidence as supporting reasoning to the effect that, because the appellant had engaged in discreditable conduct (whether sexual in nature or not), he was the sort of person who might engage in the charged conduct, or that he was otherwise a bad person, such that it was more likely that was guilty of the charged conduct. 77 However, as the appeal is to be allowed on Ground 2, there is no need to reach a concluded view as to whether these deficiencies in the judge’s directions involved error, or otherwise occasioned a miscarriage of justice, warranting this Court’s intervention. Orders 78 We grant permission to appeal and allow the appeal. We set aside the appellant’s conviction and order that the matter be remitted for re-trial. -- 19 of 19 --