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R v GARNER; R v WEBB [2021] SASCA 68 (8 July 2021)

Last Updated: 8 July 2021

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

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R v GARNER; R v WEBB

[2021] SASCA 68
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)

8 July 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW

The respondents, Garner and Webb, were members of the Rebels motorcycle gang. After a trial by judge alone, Garner was acquitted of the charge of blackmail; Webb was acquitted of the charge of attempting to dissuade a witness from attending at judicial proceedings. The Director of Public Prosecutions ("DPP") appealed both acquittals.

In relation to Garner, the DPP contended that the Trial judge erred in excluding expert evidence relating to the culture and activities of the Rebels. In relation to Webb, the DPP contended that the Trial Judge erred in finding Webb's proven conduct did not, at law, constitute the offence charged.

Held (by the Court) in relation to Garner:

1. The Trial Judge erred in her assessment of the admissibility of the expert evidence by failing to properly apply the test for admissibility of discreditable conduct evidence which amounted to an error of law;

2. The error of the Trial Judge is an error of well understood principles which can be explained by the appellate court without it interfering with the acquittal verdict;

3. Permission to appeal is granted but the appeal is dismissed.

Held (by the Court) in relation to Webb:

1. The Trial Judge erred in concluding that there was no case to answer on the charged offence or the alternative statutory offence;

2. The Trial Judge misapplied R v Hamnett and had regard to irrelevant considerations when considering whether the evidence could, at law, establish the offence charged or the statutory alternative offence;

3. There are strong reasons of public policy which demand permission be granted and the appeal be allowed;

4. Permission to appeal is granted and the appeal is allowed;

5. The acquittal is set aside and the matter is remitted to the District Court for retrial before a different judge.

Criminal Law Consolidation Act 1935 (SA) ss 20(3), 172(1), 244(3), 248(1), 256 ; Criminal Procedure Act 1921 (SA) s 153(4); Evidence Act 1929 (SA) ss 34P, 34R, referred to.

Abrahamson v The Queen [1994] SASC 5218; (1994) 63 SASR 139; Doney v The Queen [1990] HCA 51; (1909) 171 CLR 207; Elrick v The Queen [2021] SASCA 13; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295; Hamra v The Queen [2017] HCA 38; (2017) 260 CLR 479; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; Imm v The Queen (2016) 257 CLR 300; Johnson v The Queen  [2018] HCA 48 ; (2018) 266 CLR 106; Kadir v The Queen (2020) 267 CLR 109; MDM v The Queen (2020) 136 SASR 360; Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 ; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303; R v Bolte [2010] SASC 112; R v Brougham (2015) 122 SASR 546; R v Buttigieg [2020] SASCFC 38; R v C, CA [2013] SASCFC 137; R v Christie [1914] UKLawRpAC 20; [1914] AC 545; R v Droudis (No 13) [2016] NSWSC 1350; R v Fleming (2017) 129 SASR 27; R v H,T (2010) 108 SASR 86 ; R v Hamnett (2018) 132 SASR 155; R v MJJ; R v CJN (2013) 117 SASR 81; R v Riley [2020] NSWCCA 283; R v W, CT [2019] SASCFC 18; R v Willingham (2012) 112 SASR 278; R v Cluse (2014) 120 SASR 268; Ribbon v The Queen (2019) 134 SASR 328; Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, considered.

R v GARNER; R v WEBB
[2021] SASCA 68

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA

1. THE COURT: The respondents, Mr Dylan Garner (“Garner”) and Mr John Webb (“Webb”), were, at the relevant time, both members of the Rebels Outlaw Motorcycle Club (“the Rebels”). While attempting to collect a debt owed by a Mr Ty Jones (“Ty”), the prosecution alleged that Garner assaulted Ty’s brother, Mr Brodie Jones (“Brodie”) (Count 1),^[1] and blackmailed Ty’s father, Mr Noel Jones (“Noel”) (Count 2).^[2] Noel reported the matter to the police and Garner was arrested that day. On the day after Garner allegedly assaulted and blackmailed the respective complainants, Webb was alleged to have attempted to dissuade Noel from being a witness at any judicial proceedings involving Garner (Count 3).^[3] Following a trial by judge alone, Garner was found guilty of Count 1 but acquitted of Count 2; Webb was acquitted of Count 3.
2. The Director of Public Prosecutions (“DPP”) appeals the acquittals. In relation to Garner, the appellant contended that the Trial Judge erred in excluding expert evidence relating to the criminal activities of the Rebels and their culture of violence. In relation to Webb, the appellant contended that the Trial Judge erred in finding that Webb’s proven conduct did not constitute at law the offence charged.

Background

3. It is necessary to set out in some detail the events preceding the alleged offending, as they contextualise the alleged offending and relationships between the parties involved. As the issue on Garner’s appeal concerns the admissibility of discreditable conduct evidence pursuant to s 34P of the Evidence Act 1929 (SA), the assessment of that evidence must be made on the assumption that a trier of fact would accept the prosecution’s case. It is necessary therefore to summarise the prosecution’s case.
4. The complainants to the alleged offending were Noel, and his son, Brodie. Noel’s other son, Ty, worked as a tattoo artist for three outlaw motorcycle gangs: the Rebels, the Mongols and the Hells Angels. Ty became addicted to methamphetamine in around 2015/2016. Both Noel and Brodie were aware of Ty’s drug addiction.
5. Between mid-2016 and late-2018, Mr Lyndsay Garner (“Lyndsay”), the older brother of the respondent Garner, was alleged to have attended Noel’s home on at least 11 occasions searching for Ty. Brodie knew Lyndsay as they played rugby together when they were teenagers.
6. On the first occasion in mid-2016, Lyndsay confronted Noel and stated that Ty owed him $5,000 for a drug debt. After an exchange between Lyndsay and Noel, during which Lyndsay became aggressive, Noel retrieved Ty from the house. Ty left with Lyndsay in his car, returning later that day. Noel was told that Ty was going to “sort it out”.
7. Each visit thereafter was similarly related to pursuing drug debts said to be owed by Ty. According to Noel, various verbal threats were made to him by Lyndsay, to the general effect that debts were owed, that the Joneses’ possessions were at risk if the debts remained unpaid, that Lyndsay would “do what he had to do” to get the money owed, and that Ty would be pursued continually for the debts.
8. On two occasions during the period of the visits, Noel raised a total of $10,000 which he provided Ty to repay the alleged debts. Visits from Lyndsay ceased temporarily after such payments were made.
9. It was unclear whether the respondent Garner accompanied Lyndsay on each of these occasions. However, it was not in dispute that Garner attended Noel’s home on at least two occasions, namely with Lyndsay in early-2018 and unaccompanied on 23 December 2018 (the date of the charged offending).
10. In early-2018, Garner and Lyndsay attended Noel’s home together. They were advised by Noel that Ty was not present as he had “thrown him out”. Garner and Lyndsay insisted upon speaking to Ty. Noel contacted him via telephone and Garner spoke to him over the phone. Noel stated that during the call, Garner demanded money and made threats. The incident ended when Garner and Lyndsay claimed to have obtained an address where they could locate Ty. Lyndsay returned unaccompanied a couple of weeks later and reported that Ty was not at the address provided and that it was “out of his hands now”.

Garner’s alleged offending on 23 December 2018

11. On 23 December 2018, the Garner left his home, dressed in his Rebels’ colours, on his motorcycle to attend Noel’s home. An emblem containing a “1%” symbol was displayed on Garner’s Rebels’ colours, the saddle of his motorcycle, and his neck (as a tattoo). Prior to leaving his home, Garner used his smartphone to film the “1%” emblem emblazoned on the saddle of his motorcycle and distributed the film clip via social media to others.
12. At around midday, Garner arrived at Noel’s home on his motorcycle, wearing his Rebels’ colours and gold rings. He was also wearing sunglasses and an open-faced motorcycle helmet; he made no attempt to disguise his identity. He was unaccompanied. Noel was home with Brodie, his two step-sons Mr Adam Tran and Mr Alexander Tran, and a friend, Mr Christopher Matthews. They were paving the driveway. Garner parked his motorcycle in the street, leaving the engine running, and approached Noel, who was joined by Brodie.
13. When walking across the front yard, Garner asked, “where’s Ty?”. He complained that Ty had been at a nearby pub a few days earlier and had been “mouthing off” about him. He referred to a fight on 24 April 2018, and alleged that Ty had knocked his teeth out. Garner was alleged to have told Noel that he “should never have got him out of the house without checking with us”. Garner also claimed Ty owed him $5,000. Noel and Brodie advised Garner that they could not cover the amount owed; a comment was made about a car. Noel stated that Garner had said he would “take” his car. Brodie also gave evidence that “he [Garner] mentioned that the debt was now on me and my father, as TJ still owed him money”.
14. During the confrontation, Garner punched Brodie in the mouth; this conduct gave rise to Count 1.^[4] Brodie described feeling “something impact the side of my face”, his glasses “flung off” and that he “blacked out a little bit”. Garner was wearing a large rectangular two-fingered gold Rebels’ ring when the punch was laid. According to Noel, Brodie and the other witnesses,^[5] the punch was unprovoked and sudden. Noel described that he “put a hand on Brodie”, so to avoid any potential retaliation by his son to the punch. Garner’s evidence at trial was that the punch was in self-defence; he stated that Brodie seemingly came towards him at a fast pace, readying to strike.
15. Noel stated that as Garner left, he was “screaming that I’ve got a week to come up with the $5,000 or he’ll be back with a crew, he’ll take my car, he’ll firebomb my house”; these comments gave rise to Count 2.^[6] Whilst it was not disputed at trial that Garner stated he would be back in a week, he denied making any threats.
16. Noel telephoned the police at 12.43pm that same day; the Garner was arrested at around 7.30pm. Garner stated that he notified his father of his arrest, but said he had no way of knowing whether anyone in the Rebels was notified.
17. The circumstances surrounding the punch and precisely what was said by Garner were the major issues in dispute at trial.

Webb’s alleged offending on 24 December 2018

18. At around 10.30am on 24 December 2018, Webb attended Noel’s home. He arrived in a white Toyota utility. He walked up the driveway and approached Noel, who was installing CCTV cameras. When asked, Webb identified himself to Noel as “Junior”. Webb was alleged to have said to Noel:

Dylan sent me. You’ve put charges on him, he’s in gaol. If you drop the charges there’ll be no repercussions from the club. If you don’t there will be repercussions from the club.

These comments formed the basis of Count 3.^[7]

The appeal regarding Garner

19. The appellant agitated only one ground of appeal against the acquittal of Garner: the Trial Judge erred as a matter of law in declining to admit the expert evidence of Detective Senior Sergeant Reinhardt regarding the Rebels, as a result of failing to correctly assess the probative value of the evidence and the risk of its impermissible use.
20. In support of the ground of appeal, the appellant contended that the Trial Judge failed to correctly apply legal conditions of admissibility, failed to correctly apply R v Cluse,^[8] failed to correctly assess the probative value of the evidence and the risk of it being used impermissibly, and misunderstood and/or misstated important aspects of the evidence. Consequently, the appellant alleged that the Trial Judge failed to admit evidence supportive of the prosecution case and unduly restricted the prosecutor’s cross-examination of Garner, which affected the Trial Judge’s assessment of the credibility and reliability of Garner’s evidence.
21. The respondent Garner submitted that no such errors were made by the Trial Judge. In the event such errors were found, Garner contended that the Court could identify and explain the errors, and provide guidance without interfering with the verdict.

Relevant principles: admissibility of evidence

22. Evidence is information which, according to certain governing general principles and more detailed rules, will be received by a court for the purpose of deciding issues of fact that arise for its decision.^[9] In South Australia, when considering questions of evidence and its admissibility, the applicable law is the common law supplemented by provisions of the Evidence Act 1929 (SA) (“the Act”).
23. When dealing with the question of the admissibility of evidence, the first question is whether the evidence is relevant. Evidence is either relevant or it is not. If it is not relevant, no further question of admissibility arises. It is only if the evidence is relevant that questions of admissibility arise. Facts having rational probative value are relevant and admissible unless a specific rule prevents admission.^[10]
24. There is no definition of “probative value” in the Act. The expression is to be understood in the way it is defined in the Uniform Evidence Acts.^[11] Evidence is of probative value (relevant) if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. As the probative value of evidence will vary depending on the issue that it is adduced to prove, two interrelated questions naturally arise for consideration. First, for what purpose is the evidence led and, secondly, to what fact in issue, does the evidence go to prove (or disprove)?^[12]
25. Not all evidence admitted in a trial is direct evidence of a fact in issue, or more particularly, a fact proving an element of the offence. Often evidence is indirect in its effect. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact.^[13] That is, the evidence increases, as a matter of human experience, the probability of the existence of that fact.^[14] In cases involving circumstantial evidence, relevance must be resolved by reference to the whole of the evidence in the case.^[15]
26. Depending upon the way in which the prosecution seeks to prove its case, or the way in which the defence is conducted, it may appear, as a matter of fact, that an element of the offence charged will not be established beyond reasonable doubt unless some subsidiary fact, relevant to a fact in issue, is proved. Thus, in a criminal case, attention must be directed to the elements of the offence charged, the particulars of those elements and any circumstances which bear upon the assessment of probability.^[16] Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. That is, it may explain a statement or an event that would otherwise appear curious or unlikely; it may cut down, or reinforce, the plausibility of something that a witness has said; or it may provide a context helpful, or even necessary, for an understanding of a narrative.^[17] This evidence may be relevant and admissible if it provides an explanatory framework for other evidence.
27. Generally, the question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence.^[18] The task of determining the admissibility of evidence is one to be carried out by the trial judge, at the commencement of trial, or at least prior to the receipt of all of the evidence.^[19] As such, the task must be understood as one that is distinct from the function of the trier of fact in determining the ultimate weight to be afforded to the particular item of evidence. While the task may permit some consideration by the trial judge of matters such as the likely or inherent credibility or reliability of the evidence, and the competing inferences that might be available, the focus of the task is upon the probative capacity of the evidence.^[20] That is, the focus is on the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact. The task involves consideration of what is open for the jury to conclude, not what they are likely to conclude.^[21] The test of rationality directs attention to capability rather than the weight to be given to the evidence. If the evidence is admitted, it is for the jury to decide the weight it should be given. Similarly, when exercising the Christie discretion,^[22] the trial judge must assume the jury will accept a witness as truthful.^[23]
28. Questions of admissibility are matters of law. It is open to this Court to confirm, or set aside as erroneous, a trial judge’s ruling on the admissibility of evidence.^[24]
29. Given it was accepted that Detective Reinhardt’s evidence was capable of constituting discreditable conduct evidence, we turn to consider the principles relating to the admission of such evidence. The admissibility of discreditable conduct evidence is regulated by s 34P of the Act which relevantly states:

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 substantially outweighs any prejudicial effect it may have on the defendant; and

(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

...

30. Section 34P(1) of the Act provides that evidence of discreditable conduct is inadmissible subject to the decision of a trial judge to admit it pursuant to s 34P(2).
31. The impermissible use identified in s 34P(1) is the drawing of an inference of guilt from the fact that an accused has engaged in other conduct which has no relevant connection to the offence. Evidence of this kind is often referred to “general propensity” or “bad person” evidence.
32. Section 34P(2)(a) provides for the admission of discreditable conduct evidence that does not have a general propensity use. Section 34P(2)(b) expressly provides for the admission of specific propensity or disposition evidence.^[25]
33. As with the admission of any evidence, in assessing the probative value of a particular item of evidence for the purposes of s 34P of the Act, it is necessary to identify the particular issue or issues to which it is said to be relevant, and the use sought to be made of the evidence. In making that determination, a trial judge will need to identify the impermissible and permissible uses of the evidence. Once the permissible uses of the evidence are identified, the probative value of the evidence must be assessed in accordance with the appropriate criteria. The probative value of evidence of discreditable conduct can only be assessed in the context of all of the evidence on which the prosecution relies and to which it has a relevant connection.^[26]
34. Having identified the probative value of the evidence (if any), a trial judge must then determine whether they are satisfied that the probative value of the evidence substantially outweighs its prejudicial effect. When making that determination pursuant to s 34P(2)(a), the trial judge also has to consider whether the permissible use can be kept sufficiently separate and distinct from the impermissible use as required by s 34P(3).

Detective Reinhardt’s evidence

35. Detective Reinhardt was called by the prosecution as an expert witness on the topic of outlaw motorcycle gangs (“OMCG”). It became apparent that Detective Reinhardt’s evidence was discreditable conduct evidence and its admissibility would be determined by s 34P of the Act. Consequently, Detective Reinhardt gave evidence on the voir dire.
36. It was accepted that Detective Reinhardt was appropriately qualified to give expert evidence. As the Trial Judge observed, correctly in our view, while this type of evidence has been described as expert or opinion evidence, it is more properly described as evidence of facts learned by an experienced officer in the course of his duties and admissible on that basis.^[27]
37. While accepting that Detective Reinhardt was qualified to give the evidence, the Trial Judge ruled his evidence inadmissible against the respondent Garner, but admissible against the respondent Webb. The Trial Judge gave reasons for her ruling on the voir dire at the time,^[28] reserving the right to expand upon them in her reasons for verdict,^[29] which she eventually did. Therefore, the Trial Judge’s ruling must be read in conjunction with her verdict; we will refer to both, collectively as the Trial Judge’s “Reasons”.
38. Detective Reinhardt said that in general terms OMCG accepted violence in their day-to-day business, including when resolving internal and external conflicts. Such gangs recruited members who either had criminal histories or had shown a propensity for violence. There is a code of silence amongst members that is strictly adhered to. OMCG use the “1%” symbol to reflect the supposition that 1% of the population, of which OMCG members are a part of, is outside the norm and are non-law-abiding citizens.
39. Detective Reinhardt gave evidence about the recruitment of members. A person who finally becomes a member receives a full set of colours which are the official clothing of the club. A full set of colours for the Rebels includes a “patch” designating the Rebels OMCG with the 1% symbol in the middle of an emblem, which is a skull and Confederate flag. Only a full member, as opposed to a “nominee” or an “associate”, would be entitled to wear a vest with a patch.
40. A “sacrosanct” feature of an OMCG is demonstrated loyalty to the club and its members. That is, a member will stand up and be there for his fellow members or “brothers”. It is common among such members that they will engage in intimidatory practices in public places. This may be by way of overt violence, or by displaying tattoos and wearing clothing which include images of weapons and skulls. Members of OMCG are confident in committing crimes in the knowledge that victims or witnesses may be unwilling or reluctant to report the matters to authorities. Detective Reinhardt also stated that where reports are made, or police activity involving OMCG members occurs, other members become aware of such reports “almost instantaneously”.
41. Detective Reinhardt produced a document seized during a search in 2014 which was said to be a Constitution of the Rebels. The provenance of the document was unable to be proved and the Trial Judge rejected its tender.

Parties’ submissions on the admissibility of Detective Reinhardt’s evidence

42. On appeal, the parties largely reiterated their substantive submissions on the question of admissibility of Detective Reinhardt’s evidence. We summarise the parties’ submissions insofar as they are relevant to the points on appeal.

Appellant’s submissions

43. Before the Trial Judge, the appellant accepted that the evidence of Detective Reinhardt was capable of constituting discreditable conduct evidence and therefore its admissibility was governed by s 34P of the Act. The appellant submitted that it was evidence that fell within s 34P(2)(a) because its permissible use substantially outweighed its prejudicial effect. More specifically, the appellant denied any reliance on s 34P(2)(b). That is, the appellant disavowed any reliance on the evidence for the purpose of establishing that either of the respondents had a disposition or propensity to behave in a certain way by reason of their membership of the Rebels.
44. The appellant’s case was largely complete when the voir dire on the admissibility of Detective Reinhardt’s evidence was conducted. Often a voir dire on admissibility of evidence will be conducted before the trial starts, in which case a trial judge will work from the witness declarations. Here, the Trial Judge was entitled to have regard to the evidence called rather than the witness declarations. However, when deciding the admissibility of the evidence, the Trial Judge had to assume that the trier of fact would find the evidence of Detective Reinhardt to be true, and further that the trier of fact may accept the prosecution witnesses’ evidence.^[30]
45. The substance of the appellant’s case is that, against the background of Ty’s drug and drug debt problems, Garner, dressed in his Rebels colours, arrived at Noel’s house unannounced. He was looking for Ty. Having ascertained that Ty was not at the property, Garner brazenly threatened Noel with certain consequences if he did not pay Ty’s debt, and without warning punched Brodie in the face. Unsurprisingly, in those circumstances, the appellant, at trial, contended there was a link between Garner’s behaviour and his membership of the Rebels. The appellant contended that Detective Reinhardt’s evidence was probative of that issue. In particular, the appellant identified the permissible uses of Detective Reinhardt’s evidence as:
    • to support the inferences the appellant contended arose on the evidence, by providing a context within which to assess the significance of things allegedly said and done by Garner apparently on behalf of the Rebels (the first use common to Cluse);
    • to allow inferences to be drawn about Garner’s state of mind, in that evidence establishing he espoused the attitude and culture or philosophy of a group which embraces, endorses and encourages the very type of behaviour alleged made it logically more probable the conduct was premeditated because he had a reason to engage in it (i.e. a motive – the second use common to Cluse) or alternatively, even if the conduct was not pre-meditated, such a state of mind made it less improbable that Garner would have been prepared to deliberately act so brazenly, owing to his confidence in committing such an offence without fear for his own safety or concern about reprisals or attention from law enforcement; and
    • to negate innocent explanations (either by undermining arguments which might be advanced by counsel, and/or by undermining Garner’s credit if he were to give evidence), such innocent explanations possibly including a claim of coincidence (if the significance of the contextual evidence was disputed and/or motive disclaimed) and a claim of justified, spontaneous or reactive behaviour (such as self-defence).
46. Thus, the appellant submitted that the evidence of Detective Reinhardt, either alone or taken in conjunction with other evidence to be adduced, was capable of rationally affecting the assessment of the probability that the respondent Garner acted as alleged by the prosecution witnesses or had a particular state of mind on the occasion alleged. That is, the appellant submitted the evidence made it more likely that Garner would act in a brazen, violent fashion and strike without warning against someone who did not owe him money but was merely related to someone who owed him money. The behaviour was more likely, it was submitted, because he is a member of an organisation which promotes and condones that very behaviour and that in wearing the colours and acting in such a brazen fashion, Garner was aware he had the members of the club, if necessary, to back him up. That is, he had the backing of loyal members which gave him confidence to act in the way that he did. Further, it is commonplace for members of OMCG to commit criminal offences with confidence that there will be no reprisals and that the matter is unlikely to be reported to the authorities.
47. The appellant eschewed reliance on propensity reasoning. The appellant emphasised that the importance of the expert evidence was that it was relevant to the likelihood of the events occurring as alleged by the prosecution witnesses, not that the evidence of those witnesses was inexplicable in the absence of the expert evidence.

Respondent’s submissions

48. At trial and on appeal counsel for Garner contended, in essence, that the evidence of Detective Reinhardt was “sheer propensity” evidence in relation to the culture and activities of the Rebels’ members or, at the very least, so close to propensity or “bad person” reasoning that the distinction relied upon by the prosecution was “illusory”. The respondent submitted that the appellant had sought to use the concepts of membership and the espousal of a cause as distinguishing the individual disposition of Garner from the “disposition attaching to the corporate banner of the Rebels OMCG”. The Rebels OMCG has no independent characteristics outside the characteristics and attitudes of its members and their general disposition or attitudes. Thus, the respondent contended, the impermissible process of reasoning, namely bad person reasoning, was functionally indivisible from the asserted permissible uses of the evidence.
49. On appeal, the respondent Garner further submitted that the Trial Judge assessed the admissibility of the evidence correctly, particularly when assessing the strength of evidence and whether its probative value substantially outweighed its prejudicial value. Further, the respondent submitted that because the permissible and impermissible use were either “indivisible” or lacked meaningful distinction, the Trial Judge’s assessment that there was an appreciable risk that the permissible use could not be kept separate and distinct from the impermissible use was correct.

Trial Judge’s Reasons on admissibility

50. The Trial Judge accepted the evidence of Detective Reinhardt as being truthful and reliable.^[31] In particular, she found:^[32]

I accept his evidence regarding the culture, activities and reputation for violence of the Rebels and OMCGs generally. I have paid particular regard to his evidence of the propensity of OMCG members to use violence in public places and practices of intimidation towards members of the public and of the reputation of OMCGs for violence and the effect of this reputation upon members of the public, including an unwillingness to proceed with criminal charges for fear of reprisals.

51. A fair reading of the Trial Judge’s Reasons demonstrates that she did identify the permissible uses and impermissible use of the evidence as alleged by the appellant.
52. When considering the admissibility of the Detective Reinhardt’s evidence, the Trial Judge stated:^[33]

There is no suggestion or evidence in this case that the debt owed by Ty Jones and being collected by Dylan Garner was in any way connected to the activities of the Rebels Motorcycle Club. ... Had the debt been one owed to the Rebels, or another member of the Rebels, the evidence of Detective Reinhardt would be relevant to explain the otherwise inexplicable attendance of Dylan Garner demanding payment of a debt and threatening violence because it could be argued that he was aligning his interests with that of the club.

The attendance by Dylan Garner at Noel Jones’ home demanding payment of the debt is not, on the evidence, a random event for which there appears no obvious explanation. The evidence establishes a history of demands being made by or on behalf of Dylan Garner for repayment of the debt owed by Ty Jones. This is not a case where the perpetrator of the alleged offences was unknown to Noel Jones or Brodie Jones.

Against this background, Dylan Garner’s attendance on 23 December 2018 at Noel Jones [sic] is not, of itself, unusual. He had done so before. ...

Further, this is not offending of the type that was seen in Cluse where there was a joint enterprise and evidence demonstrative of a planned and coordinated attack, suggestive of a collective motive and plan. On the prosecution case, Dylan Garner is a lone wolf, pursuing a personal debt and threatening the family of the man who owes him the money, both physically and verbally. The only person, on the prosecution case, who he has called in aid in the collection of the debt or debts is his brother Lyndsay, in respect of whom there is no evidence whatsoever that he was a member of, or connected with The Rebels.

In my view, although plainly criminal and not the normal way in which a law-abiding citizen would demand repayment of the debt, the behaviour alleged against Dylan Garner cannot be said to be sufficiently unusual that a trier of fact would reject it as inherently unlikely or simply unlikely.

(emphasis added)

Discussion on admissibility

53. We reject the respondent’s submissions that the distinction between the permissible uses and impermissible use of the evidence identified by the appellant is illusory. We accept that the distinction is nuanced but it is a distinction with a difference. The Trial Judge identified the permissible uses. However, when considering the probative capacity of the evidence in relation to the identified permissible uses, the Trial Judge did not approach the question of admissibility in an orthodox manner. Rather than assess the capacity of the evidence to rationally affect the probability of the events occurring as suggested by the prosecution witnesses, the Trial Judge approached her task by addressing the weight that a trier of fact may eventually attribute to the evidence. The Trial Judge, when considering the admissibility of the evidence, has determined and dismissed parts of the appellant’s case before assessing the probative capacity of the evidence that related to those matters.
54. A number of examples demonstrate the erroneous approach of the Trial Judge.
55. The Trial Judge has determined that there was “no evidence” that the debt owed was a “Rebels’ debt”. Indeed, the respondent on appeal submitted that by the time the admissibility of Detective Reinhart’s evidence was considered, there was “no room for the inference that the debt was a ‘club’ debt.” We reject that submission.
56. It was not the appellant’s case that Garner was acting as a “lone wolf”. Indeed, that was the antithesis of the appellant’s case. The appellant accepted that there was no direct evidence that the debt was a Rebels’ debt. However, it submitted that there was some evidence from which that inference could be drawn, and the evidence of Detective Reinhardt supported the drawing of that inference. While it was not essential to the appellant’s case that it proved the debt was a Rebels’ debt, there was evidence, albeit not direct evidence, from which the trier of fact could infer it was a Rebels’ debt, or at the very least, a debt the Rebels were prepared to enforce. There was evidence from the prosecution witnesses, such as the expressions allegedly uttered by Garner that he would return with “a crew”, that he would “firebomb” the house and that Noel had failed to “check with us” before removing Ty from his house, which suggested involvement of the Rebels in the debt. Detective Reinhardt’s evidence was logically probative of the issue of the extent to which, if at all, the Rebels were involved in the debt. It is not to the point that the evidence mentioned above could be described as weak; the Trial Judge was required to assume that the trier of fact may have accepted the evidence.
57. Further, the Trial Judge found that the behaviour alleged against Garner was not sufficiently unusual that a trier of fact would reject it as inherently unlikely. Such a determination is not relevant to an assessment of the capacity of the evidence to rationally affect the probability of the events occurring as alleged by the prosecution witnesses. The question to be asked was whether the evidence of Detective Reinhardt had the capacity to make the evidence of the prosecution witnesses more likely. In our view, the evidence clearly had that capacity.
58. The Trial Judge also found that the evidence was not relevant because the attendance by Garner was not a “random event for which there appears no obvious explanation”. Whether or not there may have been another explanation for his attendance is not relevant to the assessment of the probative capacity of the evidence. That his attendance was not a random event was common ground. The question to be addressed was whether the evidence of Detective Reinhardt had the capacity to rationally affect the probability of the events occurring as alleged by the prosecution witnesses – not whether his attendance was random or not. While it is correct that the other evidence disclosed a somewhat lengthy history regarding the background to the alleged debt, the evidence of Detective Reinhardt had the capacity to assist the trier of fact when considering the likelihood or unlikelihood that Garner uttered the threats alleged by the prosecution witnesses; it was also relevant to his intention when he struck Brodie.
59. To put that another way, the question to be considered by the Trial Judge was whether the evidence of Detective Reinhardt regarding the culture and activities of the Rebels, given that the respondent Garner was a member of the Rebels, had the capacity to affect the likelihood or unlikelihood of the evidence given by the prosecution witnesses. In our view, it clearly did. It was open to the trier of fact, if they accepted the evidence of Detective Reinhardt, to use his evidence when assessing whether or not the respondent Garner did behave in a certain manner by aligning his interests with the Rebels’ interests. Such evidence was clearly relevant when assessing the reliability and the truthfulness of the prosecution witnesses as to how they said Garner behaved on the day in question.
60. The Trial Judge also found:^[34]

It was accepted by Mr Williams [for the prosecution] that there are members of the Rebels motorcycle club who will be passive members, that is, law-abiding members. There is simply no evidence upon which a finding could be made as to whether Dylan Garner was a law abiding or a law-breaking member. There is no evidence that he was recruited because of his criminal history or criminal disposition. That he chose to wear Rebels colours might lead to an inference that he intended to intimidate Noel Jones, or to have Noel Jones think that he was a person not to be messed with, but that inference arises on the evidence and does not rely or depend upon the evidence of Detective Reinhardt.

(emphasis added)

61. While we accept that the fact that Garner may have chosen to wear the Rebels’ colours might lead to an inference that he intended to intimidate Noel in any event, his membership of the Rebels and the explanation by Detective Reinhardt as to what that may entail was still relevant to the likelihood or unlikelihood of Garner behaving in the manner alleged by the appellant. That is, the evidence had the capacity to increase the likelihood that his attendance at the premises was to intimidate those present. His membership of the Rebels and the relevance of the evidence did not depend upon whether he was a law-abiding or law-breaking member. It was the fact of membership that could lead to the trier of fact to find that he had aligned his interests with the those of the Rebels.
62. The Trial Judge also stated:^[35]

The behaviour in which it is alleged the Dylan Garner engaged is the type of behaviour in which a person who is not a member of an OMCG might engage. There is no suggestion that he behaved in this way because his interests are aligned with that of the Rebels Club.

(emphasis added)

63. Again, the Trial Judge decided the issue before considering whether the impugned evidence was probative of the issue. It is not to the point that a person who is not a member of the Rebels may behave in such a way. At the risk of being repetitive, the capacity of Detective Reinhardt’s evidence went directly to the question of whether Garner behaved in a particular way because his interests were aligned with that of the Rebels. By deciding that there was “no suggestion that he behaved in this way because his interests are aligned with that of the Rebels Club” was to decide the very issue to which the evidence was said to be relevant against the appellant.
64. In our view, rather than carefully assessing the capacity of the expert evidence, having regard to the suggested permissible uses, to circumstantially increase the probability of the existence of material facts bearing on the ultimate issue, the Trial Judge dismissed various aspects of the appellant’s case prematurely. Having rejected the facts and inferences for which the appellant contended, the Trial Judge concluded that the expert evidence was not probative of these matters. We consider that the Trial Judge conflated the task of assessing the legal admissibility of the impugned evidence with the fact-finding task.
65. The Trial Judge erred in her assessment of the probative capacity of Detective Reinhardt’s evidence. This error infected her reasoning in relation to the next step in the analysis, namely whether the probative value of the evidence substantially outweighs its prejudicial effect. Having erred in her assessment of the probative value of the evidence, her assessment of whether the probative nature of the evidence substantially outweighed its prejudicial effect cannot stand.
66. That is not to say, however, that the Trial Judge must have inevitably found, had she considered the probative capacity of the evidence correctly, that the evidence did substantially outweigh the prejudicial effect of the evidence. Such a decision would require a proper assessment of the probative capacity of the evidence.

Consideration of s 34P(3)

67. When considering the admissibility of the evidence pursuant to s 34P(2)(a) of the Act, it was also necessary for the Trial Judge to consider the operation of s 34P(3). Section 34P(3) directs the attention of a trial judge to consider whether the permissible use of the evidence can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that impermissible purpose. If the terms of the sub-section cannot be complied with, the evidence is inadmissible even if it meets the other criteria contained in s 34P(2)(a).
68. When considering the operation of s 34P(3), the Trial Judge stated:^[36]

The prejudicial effect of this evidence is very high and, even sitting as a judge alone, I consider that any permissible use of the evidence in respect of the likelihood the accused acting in a manner alleged could not be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

69. It is strictly unnecessary for us to consider this aspect of the Trial Judges’ reasons. However, we make the following comments.
70. We are unable to accept that the prejudicial effect of the evidence is “very high”. The evidence that Garner was a member of the Rebels and that he was wearing their colours on the day in question was admissible in any event, as part of the surrounding circumstances. Indeed, as the Trial Judge remarked in her ruling, Garner choosing to wear the Rebels’ colours might lead to an inference that he intended to intimidate Noel irrespective of the evidence of Detective Reinhardt.
71. Whether the prejudicial effect of the evidence is high or not, the same prejudice arose in the matter of the other respondent, Webb. The permissible uses in the cases of the respondents, while not identical, overlap. Like Garner, Webb may well have been a law-abiding member of the Rebels. The Trial Judge’s finding, that in relation to the case against Garner, she could not keep any permissible use of the evidence sufficient and distinct from the impermissible use is somewhat incongruent with her ability to keep the same type of evidence separate and distinct in the matter of Webb. This is particularly so when the Trial Judge, in the matter of Garner, was able to clearly articulate the similar permissible and impermissible uses of the evidence. The Trial Judge found in Webb’s matter:^[37]

I admitted the evidence of Detective Reinhardt against the accused Webb with the exception of VDP19. I accept his evidence regarding the culture, activities and reputation for violence of the Rebels and OMCGs generally. I have paid particular regard to his evidence of the propensity of OMCG members to use violence in public places and practices of intimidation towards members of the public and of the reputation of OMCGs for violence and the effect of this reputation upon members of the public, including an unwillingness to proceed with criminal charges for fear of reprisals. I have also had regard to his evidence that news of an arrest of a member is disseminated rapidly. I have used his evidence in assessing the likelihood of the conversation occurring as alleged by NAJ and AKT and in drawing inferences regarding the meaning of the words spoken and any intention that can be inferred from them. I have not used this evidence to reason that the accused Webb is the sort of person who is likely to have committed the offence charged.

(emphasis added)

72. There are clear parallels between the use the appellant sought to make of Detective Reinhardt’s evidence in both Garner’s matter and Webb’s matter. However, as already discussed, the Trial Judge’s error in the assessment of the probative nature of the evidence in any event infects her assessment of the criteria under both ss 34P(2)(a) and 34P(3).
73. We note that the operation of s 34P(3) seeks to protect an accused from the risk of impermissible reasoning by the trier of fact. Whether that risk is removed, or at least substantially lessened, where an accused has elected for trial by judge alone, such that s 34P(3) has little work to do was not argued before us in the case at bar. Chief Justice Kourakis in R v C, CA was not “inclined to attribute to Parliament an intention to prescribe a test for the admissibility of evidence which would be applied differently depending on the mode of trial”.^[38] We note that the obligation created by s 34R(1) as to the directions to be given in relation to the permissible and impermissible uses of the evidence draws no distinction between a trial by jury and a trial by judge alone.^[39] However, obiter remarks in Abrahamson v The Queen^[40] and R v Bolte,^[41] although dealing with different issues of admissibility, suggest that such an approach (that is, a distinct approach depending on the mode of trial) may be applicable. It is not necessary for us to decide the issue.^[42]
74. Given our finding that the Trial Judge erred in her approach to the admissibility of the evidence of Detective Reinhardt’s evidence, her finding in relation the operation of s 34P(3) also cannot stand. We consider the evidence was admissible for the permissible uses identified by the appellant. The Trial Judge’s error infected her approach to the assessment of the criteria set out in ss 34P(2)(a) and 34P(3). Assuming, without deciding, that the evidence satisfied the criteria in those sub-sections, the Trial Judge deprived herself of evidence that may have affected her approach to the assessment of the reliability and truthfulness of the prosecution witnesses. Further, her error in the assessment of the probative capacity of Detective Reinhardt’s evidence unduly restricted the prosecutor’s cross-examination of Garner. The error therefore had the potential to affect her assessment of the accused’s evidence.
75. In our view, the trial of Garner has miscarried due to the approach adopted by the Trial Judge.

Application of R v Cluse

76. We turn to the question of the Trial Judge’s use of the principles discussed in Cluse,^[43] a case relied upon by the appellant. Having discussed the facts in Cluse, the Trial Judge considered that the facts and the basis upon which the evidence was held to be admissible in Cluse were “very different” from the facts of the case at bar and the basis upon which it was contended that Detective Reinhardt’s evidence was admissible. We accept that some of the permissible uses identified by the appellant in Cluse are different to the permissible uses identified in this matter. However, we note the expert evidence of a police witness, who had experience in dealing with criminal gangs including motorcycle clubs and gave evidence about the culture and criminal activities of the OMCG, was held, on appeal, to be properly admitted at trial. In particular, as the Trial Judge noted, Vanstone J held that it was open to the Trial Judge in Cluse, given the nature of the expert evidence, to infer that Cluse “would have aligned his interests to those of the club”.^[44]
77. We do not accept that the Trial Judge misunderstood the principles enunciated in Cluse. However, leaving aside the factual differences, Cluse is an example of a court identifying permissible uses of discreditable conduct evidence and then analysing the prosecution case to see if the evidence had the capacity to rationally affect the assessment of the probability of the existence of a fact in issue. That was the relevance of Cluse to the prosecution case. Cluse does not stand for, nor did the Trial Judge suggest that it stood for, the principle that the type of evidence given by Detective Reinhardt is restricted in admissibility to only those permissible uses identified in Cluse.

Relevant principles: DPP appeals against an acquittal

78. The finding that the trial miscarried does not necessarily mean that a DPP appeal will be successful. On a DPP appeal, the Court must first deal with the question of permission to appeal before determining whether the appeal should be allowed. The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal.^[45]
79. It is well established that leave should only be granted with respect to DPP appeals against sentence in cases that are “rare and exceptional”.^[46] As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:^[47]

An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

80. In R v Brougham, Peek J stated that the application of the double jeopardy principle is “all the stronger in a case ... which concerns an application for permission to appeal against an acquittal rather than a sentence”.^[48] A DPP appeal against an acquittal should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Permission to appeal should not be granted in circumstances where no error of law or principle is demonstrated.^[49] Correction of an error of law of practical importance is a significant consideration.^[50]
81. It is open to the Court on an appeal against an acquittal to pronounce upon the impugned ruling and give what guidance is required for the correct approach in future trials without interfering with the verdict.^[51] The decision to grant permission, allow the appeal and order a retrial requires the Court to consider the interests of justice and the circumstance that, as a result, the accused will face another trial.^[52] The DPP must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.^[53]

Discussion

82. The respondent Garner submitted that there is no significant point of principle involved in the case at bar. The respondent contended that the operation of s 34P(2) is well understood. If error was established, it was an error only in the application of well understood principles. This Court, the respondent submitted, has the facility to deliver reasons explaining any error in the approach of the Trial Judge. The respondent also submitted that the Trial Judge took into account other matters affecting the reliability of the prosecution witnesses unrelated to the evidence of Detective Reinhardt’s evidence. That is, the respondent contended that the detailed reasoning of the Trial Judge makes it apparent that the admission of Detective Reinhardt’s evidence would probably have made no difference to the verdict. In any event, the respondent submitted that on appellate review it could not be said that the probative nature of the impugned evidence substantially outweighed its prejudicial nature.
83. The appellant submitted that the erroneous evaluation of the expert evidence was an error of law resulting in the loss of a major aspect of the prosecution case. The appellant accepted that the Trial Judge had reservations about the prosecution witnesses irrespective of Detective Reinhardt’s evidence but submitted it could not be said that had the impugned evidence been admitted, it would have made no difference to the verdict. The appellant submitted that, apart from the fact of a retrial, there was no prejudice to the accused in facing a second trial.
84. We generally accept the submissions of the respondent. The Trial Judge’s error was in the application of well understood principles. The Trial Judge did have doubts about the reliability of the prosecution witnesses. While it is correct to observe that the failure to admit Detective Reinhardt’s evidence may have affected the Trial Judge’s assessment of the prosecution witnesses, her reasoning generally suggests that the reliability of some of the prosecution witnesses was affected by other matters. Further, we do not accept the appellant’s submission that there is no prejudice to the accused in facing a retrial. The Trial Judge convicted the respondent of assault and did so on a basis favourable to him, namely that he acted in excessive self-defence. This conviction was not appealed by either party. If the matter is remitted for a further trial, there is a potential for inconsistent findings to arise. That is, on a retrial, if the respondent was convicted of Count 2 (the blackmail charge), it could only be on the basis that the trier of fact accepted the prosecution case that the respondent behaved in an intimidating and brazen fashion. That would be inconsistent with the basis of the conviction for assault (Count 1).

Conclusion

85. Given the principles espoused earlier regarding DPP appeals, in our view, while the appellant has established error in the approach of the Trial Judge, it is sufficient that the Court explain the error without interfering with the verdict.
86. Given the nature of the error and its significance to the appellant’s case at trial, we grant permission to appeal but for the reasons outlined above we dismiss the appeal.

Orders in relation to Garner

1. We grant permission to appeal; and
2. We dismiss the appeal.

The appeal regarding Webb

87. The background leading to the alleged conduct of Webb is set out above. Webb was charged with attempting to dissuade Noel from attending as a witness or giving evidence at judicial proceedings in contravention of s 244(3) of the Criminal Law Consolidation Act 1935 (the “CLCA”).^[54] Webb was charged, in the alternative, with attempting to pervert or obstruct the course of justice contrary to s 256 of the CLCA. The Trial Judge accepted the evidence of Noel and her findings, on appeal, were not challenged. Despite accepting Noel’s evidence, the Trial Judge acquitted Webb on the charged offence on the basis that there was no case to answer. The appellant appeals the acquittal (Ground 1). The Trial Judge also acquitted Webb of the statutory alternative offence of attempting to pervert the course of justice. The appellant appeals that acquittal in the alternative (Ground 2).

Ground 1

88. The appellant contended that the Trial Judge erred in finding that Webb’s proven conduct did not, at law, constitute the charged offence of attempting to dissuade a witness from attending as a witness or giving evidence at judicial proceedings. The appellant also contended that the Trial Judge misapplied the decision of R v Hamnett (“Hamnett”).^[55]

A case to answer

89. Section 244 of the CLCA relevantly states:

244—Offences relating to witnesses

(1) ...

(2) ...

(3) Subject to this section, a person who prevents or dissuades, or attempts to prevent or dissuade, another person from—

(a) attending as a witness at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time); or

(b) giving evidence at, or producing a thing in evidence at, such proceedings,

is guilty of an offence.

...

(emphasis added)

90. As discussed earlier in these reasons, the Trial Judge found proved beyond a reasonable doubt that around 10.30am on 24 December 2018, Webb attended Noel’s home. He walked up the driveway and approached Noel, who was installing CCTV cameras. When asked, Webb identified himself to Noel as “Junior”. Webb said to Noel:

Dylan sent me. You’ve put charges on him, he’s in gaol. If you drop the charges there’ll be no repercussions from the club. If you don’t there will be repercussions from the club.

91. “Dylan” was a reference to Garner who had been charged with offences occurring the day before. On appeal, there was no challenge to the findings of fact in relation to the words Webb said to Noel and when the conversation occurred.
92. The Trial Judge, correctly, identified that in relation to the alleged offence pursuant to s 244(3) of the CLCA, the prosecution in this case had to prove the following elements:
    1. That at the time of the alleged offence, Noel was or may have been required at some time in the future to be a witness at judicial proceedings;
    2. That Webb knew that Noel was or may be required to attend as a witness in judicial proceedings or he was recklessly indifferent as to that matter;
    3. That Webb intentionally did an act to attempt to prevent or dissuade Noel from attending as a witness at judicial proceedings;
    4. That the judicial proceedings were in progress or were to be, or might have been, instituted at a later time; and
    5. That Webb had no lawful authority or reasonable excuse for his actions.
93. At trial and on appeal, it was common ground that elements 1, 2, 4 and 5 had been established. The only element in dispute on appeal was whether Webb intentionally did an act to attempt to dissuade Noel from attending as a witness at judicial proceedings.
94. The Trial Judge initially found, contrary to Webb’s submissions, that there was a case to answer on the charge. The trial proceeded and Webb did not give evidence. In her Reasons for Verdict, the Trial Judge said that “on reflection” she considered she was in error in finding a case to answer. Later she found that the words uttered by Webb “do not, at law, constitute an attempt to dissuade a person from attending as a witness at judicial proceedings”. It is not clear if the Trial Judge was attempting to reverse her earlier ruling on whether there was a case to answer. Indeed, Webb having elected to give no evidence and the addresses of counsel having finished, the Trial Judge may not have been able to reverse her ruling. Generally, once there is a finding of a case to answer, a trial judge is not permitted at law to direct an acquittal and must leave the case for the jury to assess the weight to be given to the evidence. Whether, in such circumstances, a trial judge is entitled to direct an acquittal raises an interesting question.^[56] However, we do not need to decide that question. Exactly what process the Trial Judge undertook when deciding the case is of no practical consequence as, for the reasons that follow, we consider she erred in finding that the words uttered by Webb “do not, at law, constitute an attempt to dissuade a person from attending as a witness at judicial proceedings.”

Misapplication of R v Hamnett

95. As discussed, on appeal there is no challenge to the Trial Judge’s finding that Webb said to Noel “You’ve put charges on him, he’s in gaol. If you drop the charges there’ll be no repercussions from the club. If you don’t there will be repercussions from the club.” The Trial Judge, in her reasons, relied upon the decision of Hamnett. The respondent, on appeal, supported the Trial Judge’s reasons and reasoning including her approach to the principles arising from Hamnett. The appellant submitted that the Trial Judge misapplied the principles in Hamnett. It is necessary to discuss that case in some detail.
96. Mr Hamnett was arrested after he committed acts of domestic violence against his partner (“the complainant”) at her residence. He was charged with numerous offences including assaulting and threatening to kill the complainant. While in custody for that offending he wrote two letters to the complainant imploring her to make a new, and false, statement to the police exculpating him of any offence of physical violence against her. He was then charged with two counts of attempting to prevent or dissuade the complainant from attending as a witness in judicial proceedings contrary to s 244(3)(a) of the CLCA. He pleaded guilty to both charges and was sentenced in the District Court. After receiving legal advice, he appealed the conviction and sentence, arguing that the evidence (the content of the two letters) did not evidence an intention to prevent or dissuade the complainant from attending judicial proceedings. The Court allowed the appeal and quashed the convictions.
97. The Court in Hamnett held:^[57]

Section 244(3) does not extend to prohibiting a person from dissuading, or attempting to dissuade, another person from giving truthful evidence, whether by commission or omission.

...

The appellant was charged with preventing or dissuading, or attempting to prevent or dissuade, another person from attending at judicial proceedings. He was not charged with attempting to prevent or dissuade another person from giving evidence. The charges allege a contravention of s 244(3)(a). They do not allege a contravention of s 244(3)(b). In our view, the evidence of the two letters cannot prove facts which establish an attempt by the appellant to prevent or dissuade the complainant from attending as a witness at judicial proceedings. The text of the letters, read separately or together, do not seek to prevent or dissuade the complainant from attending at court to give evidence in relation to the charges the appellant understood he was facing or, for that matter, the charges he actually was facing. Rather the meaning of the letters is an attempt by the appellant to persuade the complainant to make a new and false statement to the police about the circumstances of the offending which is exculpatory of any offence of physical violence against the complainant. Accordingly, the appellant could not have been found guilty of the charges to which he pleaded guilty.

(emphasis added)

98. The Court in Hamnett adopted an orthodox approach to the construction of s 244(3) of the CLCA. The focus was, like in the present case, upon s 244(3)(a). It noted that the vice, to which the section was directed, was the intimidation of witnesses from attending court to give evidence. The Court then assessed the evidence and found that the meaning and intent of the content of the two letters was to persuade the complainant to give a false statement to the police exculpating Mr Hamnett of any domestic violence allegations. That is, the content of the letters did not amount to an attempt to dissuade the witness from attending court or giving evidence. Thus, the Court found s 244(3) did not apply in those circumstances. Whether or not that may have led to the consequence of the complainant not attending judicial proceedings or giving evidence was irrelevant as the intent of the letters was to persuade the witness to give false evidence. The principle to be drawn from Hamnett is that the trier of fact must look at the intent of the statements and/or acts of an accused; what consequences may follow are not relevant.

Consideration of Trial Judge’s application of Hamnett

99. In our view, the Trial Judge has misunderstood the principles enunciated in Hamnett. The error in the Trial Judge’s reasoning appears to have sprung from a passage in her Reasons for Verdict. She stated, when referring to Hamnett:^[58]

The Court observed:

While the letters did not expressly seek to dissuade the complainant from attending at judicial proceedings, it is implicit in the terms of the letters that the appellant was attempting to persuade the complainant to give the prosecuting authorities a false account of the events relevant to the charges so that the charges would be withdrawn and the complainant would not attend at judicial proceedings. [Emphasis added]

(emphasis in original)

100. The Trial Judge has taken this part of the judgment out of context. The Court in Hamnett did not “observe” those matters. The preceding sentence to the passage quoted begins “The respondent submits...”. In context, the Court was simply reciting the respondent’s (prosecution) submissions. By taking those remarks out of context the Trial Judge has stripped them of their situational meaning and elevated them to principles that the Court was purportedly endorsing. The Court did not endorse those submissions; indeed, as cited earlier, it specifically rejected them.
101. The misunderstanding of the principles in Hamnett led the Trial Judge, later in her reasons, to state:^[59]

It is noteworthy that in deciding that [the] appellant could not in law have been convicted of an offence against s 244 (3), the Court in Hamnett specifically adverted to the fact that the appellant was attempting to persuade the complainant to act in a certain way ‘so that the charges would be withdrawn, and the complainant would not attend at judicial proceedings’.

(emphasis in original)

102. The Court in Hamnett did not advert to the fact that Mr Hamnett was attempting to persuade the complainant in a “certain way” such that the charges would be withdrawn and the complainant would not attend at the judicial proceeding. Indeed, the Court found the opposite; Mr Hamnett intended to have the complainant change her statement and give false evidence.
103. The relevant terms of the section are clear. The act or acts comprising an attempt to prevent or dissuade must be directed towards the victim attending as a witness or giving evidence at judicial proceedings.
104. The Court in Hamnett focussed on the evidence and the intention of Mr Hamnett in writing the letters. Mr Hamnett did not attempt to dissuade the complainant from being a witness, rather he attempted to persuade her to give false evidence. In particular, the Court did not find that Mr Hamnett was attempting to persuade the complainant to “act in a certain way” so the charges would be withdrawn and the “complainant would not attend at judicial proceedings”. Rather, the Court found that the letters had only one aim – to get the complainant to give false evidence. That was not the mischief to which the section was directed and the evidence did not therefore establish an element of the offence.
105. The Trial Judge also stated:^[60]

The decision in Hamnett makes it clear that there is a difference between attempting to persuade a person to do something which may have the intended consequence of that person not attending as a witness at judicial proceedings and attempting to dissuade that person from attending as a witness at judicial proceedings.

(emphasis in original)

106. With respect to the Trial Judge, the decision in Hamnett did not suggest such a difference. The Court in Hamnett did not consider that the content of the letters may have had the intended consequence of the complainant not attending as a witness at judicial proceedings. The Court assessed the content of the letters as evincing an intention to persuade the complainant to give false evidence. That the content of the letters may have had the consequence of the complainant not giving evidence was not relevant; what is important is the intention of the statements.
107. The reliance on this misunderstanding of Hamnett led the Trial Judge into error when reaching her ultimate verdict. The Trial Judge stated:^[61]

In my view, the words ‘drop the charges’ are not synonymous with ‘do not attend as a witness at judicial proceedings’. The words ‘drop the charges’ are synonymous with a request of the witness to engage in some form of conduct that will influence the outcome of the judicial proceedings in a way that might bring them to an end. There is an inherent ambiguity in, and potentially different interpretations of, the expression ‘drop the charges.’

A witness in judicial proceedings could conceivably do a number of things that might result in the charges being dropped. One of those is the giving of a false statement which exculpates the accused, as the appellant implored the complainant to do in Hamnett. If the witness is the complainant, he may advise the prosecution that he no longer wishes to press charges or does not want the prosecution to go ahead. A witness may inform the prosecution that he does not want to, or will refuse to give, evidence. A witness may avoid contact with police or leave the jurisdiction. What the witness is being persuaded to do by being told to ‘drop the charges’ is act in a certain way in order to influence the outcome of the proceedings and which could have the consequence that he will not attend as a witness at judicial proceedings. This is not a case where I consider Parliament has inadvertently overlooked this particular situation. So much is apparent from a consideration of s 248 CLCA. In any event, as the Court in Hamnett observed, a penal statute would not be extended by a court in those circumstances.

Even if I am wrong to take judicial notice of how judicial proceedings can be brought to an end, I would nevertheless be satisfied that the words ‘drop the charges’ are not synonymous with ‘do not attend as a witness at judicial proceedings’ because of the ambiguity of meaning of that expression, the various forms of conduct to which it may relate and the range of consequences that may ensue.

(emphasis in original)

108. The misunderstanding of Hamnett has led the Trial Judge to focus on the part of the statement where Webb stated that Noel should “drop the charges”. The Trial Judge became distracted by the number of ways a person may go about “dropping” charges. With respect, that was not an issue to be decided. The question for the Trial Judge was whether, in context and taking the entirety of the statements of Webb into account, had the prosecution proved that Webb intended to dissuade Noel from attending as a witness at judicial proceedings. In our view, the answer to that question is an unqualified yes.
109. When analysing this question it was important that the Trial Judge have regard to Webb’s entire statement. Webb did not simply tell Noel to “drop the charges”. Webb told Noel what the consequences would be for him if he the case proceeded. If the charges proceeded, Noel would have to give evidence seeing as he was the one who “put charges on him [Garner]”, and then there would be repercussions from the Club. The threat of repercussions was directed towards what would happen to Noel if the matter proceeded. The intent of the statement was clearly an attempt to dissuade Noel from attending at judicial proceedings. To put that another way, it did not matter to Webb how the charges came to be withdrawn, the repercussions were going to be directed at Noel if he attended at the proceedings.
110. As mentioned, the Trial Judge speculated about what a witness could do that might result in charges being dropped. However, if Noel had succumbed to the threat, how he went about “dropping the charges” was not a relevant issue. The question to be decided, as discussed earlier, is whether the words spoken demonstrate an intention by Webb to attempt to dissuade Noel from attending judicial proceedings as a witness. It is obvious enough that an accused may not give thought to precisely how their remarks, which are intended to dissuade a witness from attending court, will be acted upon. What is important is the intention evidenced by the remarks.
111. The appellant submitted that the plain meaning of the words uttered by Webb demonstrated his intention to dissuade Noel from attending at judicial proceedings. We agree. The attempt to dissuade by the threat of repercussions was directed to the charge proceeding, not how the charges may not proceed.
112. The Trial Judge remarked that had Webb said to Noel “tell the police that you will not go to court and give evidence so the charges can be dropped or there will be repercussions from the club”, Webb would have committed the offence. With respect to the Trial Judge, her suggestion simply makes explicit what is clearly implicit in Webb’s remarks.

Conclusion on Ground 1

113. In our view, the Trial Judge erred in finding that there was no case to answer. Not only was there a case to answer, on the factual findings made by the Trial Judge, Webb ought to have been convicted. However, the Court does not, on a DPP appeal, have to power to enter a conviction.

Ground 2

114. Given our findings in relation to Ground 1, it is unnecessary for us to consider Ground 2. We simply note that on the Trial Judge’s findings, although not charged, Webb was guilty of an offence contrary to s 248(1)(b) of the CLCA, namely threatening physical injury to a person or property of a person involved in criminal investigations or judicial proceedings.

Legal Principles – DPP appeal against an acquittal

115. We repeat what we said on this topic at paragraphs [78]–[81] in relation to Garner’s appeal.
116. We have found that the Trial Judge erred in finding that at law the evidence was incapable of proving the charge. Indeed, as stated earlier, on the Trial Judge’s factual findings, a guilty verdict ought to have been returned.
117. The respondent submitted that weight should be given to the fact that pursuant to s 153(4) of the Criminal Procedure Act 1921 (SA), the Director can have a question of law reserved on acquittal as of right, permitting the Court of Appeal to correct any error of law without disturbing the acquittals and exposing the respondent to double jeopardy. While the right to have a question of law reserved on acquittal is preserved, Parliament has also given the Director the right to appeal an acquittal where there has been a trial by judge alone and have the Court of Appeal consider whether a retrial, in the circumstances pertaining to the case, should be ordered. Clearly the principles of double jeopardy are highly relevant to the Court’s consideration of the Director’s appeal.
118. The Trial Judge erred on a question of law. The Trial Judge misunderstood the principles arising from Hamnett and had regard to irrelevant considerations when considering whether the evidence could, at law, establish the offence. The Trial Judge made findings of fact which, on appeal, were not contested. Webb did not give evidence at the trial. The Trial Judge made factual findings which proved the guilt of Webb beyond a reasonable doubt. On the evidence and the findings of the Trial Judge, he was erroneously acquitted. Further, the Trial Judge clearly considered that Webb had committed a criminal act, just not the one charged or its alternative. There is no doubt in this matter that the only reason for Webb’s acquittal was the Trial Judge’s misunderstanding of the law. It is not a case where Webb may have been acquitted despite the error of law.
119. The charge is serious and strikes at the foundation of the judicial system. We must consider the interests of justice and the circumstance that if the appeal is allowed the accused will face another trial. However, in our view, there are strong reasons of public policy which demand that permission to appeal be granted and the appeal be allowed despite the public interest in not twice vexing the respondent.

Orders in relation to Webb

1. We grant permission to appeal and allow the appeal; and
2. We set aside the verdict of acquittal and remit the matter to the District Court for a retrial before a different Judge.

^[1] Contrary to s 20(3) of the Criminal Law Consolidation Act 1995 (SA) (“CLCA”)

^[2] Contrary to s 172(1) of the CLCA.

^[3] Contrary to s 244(3) of the CLCA.

^[4] An assault contrary to s 20(3) of the CLCA.

^[5] Mr Adam Tran, Mr Alexander Tran and Mr Christopher Matthews.

^[6] Blackmail, contrary to s 172(1) of the CLCA.

^[7] Attempt to dissuade a witness, contrary to s 244(3) of the CLCA.

^[8] R v Cluse (2014) 120 SASR 268 (‘Cluse’).

^[9] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [4].

^[10] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [6].

^[11] Johnson v The Queen  [2018] HCA 48 ; (2018) 266 CLR 106 at  [18] .

^[12] R v W, CT [2019] SASCFC 18 at [30].

^[13] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 at [37].

^[14] R v MJJ; R v CJN (2013) 117 SASR 81 at [19].

^[15] Ribbon v The Queen (2019) 134 SASR 328 at [210]–[211].

^[16] R v H,T (2010) 108 SASR 86 at [64].

^[17] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [6].

^[18] That is the case under the various uniform Evidence Acts: see Ribbon v The Queen (2019) 134 SASR 328 at [208] (Peek J) (Parker and Doyle JJ agreeing) relying on Imm v The Queen (2016) 257 CLR 300 at [28], acknowledging that the case was decided under the Uniform Evidence Act legislation, not common law. We note Gageler J in Imm v The Queen at [95] considered that, at common law, the question of reliability on occasions might be sufficient to deprive the evidence of probative value. See also R v Fleming (2017) 129 SASR 27 at [76].

^[19] Elrick v The Queen [2021] SASCA 13 at [42].

^[20] Elrick v The Queen [2021] SASCA 13 at [42].

^[21] Imm v The Queen (2016) 257 CLR 300 at [28] (emphasis in original).

^[22] R v Christie [1914] UKLawRpAC 20; [1914] AC 545.

^[23] Ribbon v The Queen (2019) 134 SASR 328 at [210].

^[24] MDM v The Queen (2020) 136 SASR 360 at [3].

^[25] R v MJJ; R v CJN (2013) 117 SASR 81 at [18].

^[26] R v MJJ; R v CJN (2013) 117 SASR 81 at [15].

^[27] R v Cluse (2014) 120 SASR 268 at [2]–[15].

^[28] Reasons for Ruling of her Honour Judge Fuller (settled 17 September 2020) (“Ruling”).

^[29] R v Garner & Webb [2020] SADC 143.

^[30] Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 at [63].

^[31] As noted earlier, reference is made to the Trial Judge’s “Reasons” as including both her reasons for ruling on the voir dire and the reasons for verdict.

^[32] R v Garner & Webb [2020] SADC 143 at [157].

^[33] Ruling at 4–5.

^[34] Ruling at 5.

^[35] Ruling at 7.

^[36] Ruling at 6.

^[37] R v Garner & Webb [2020] SADC 143 at [157].

^[38] R v C, CA [2013] SASCFC 137 at [82] (Anderson J agreeing); Nicholson J reserved his position on the issue at [141]. See R v Droudis (No 13) [2016] NSWSC 1350 for a discussion on the application of the principle in New South Wales.

^[39] Kroni v The Queen [2021] SASCFC 15 at [36] (Doyle J), [78] (Livesey J).

^[40] [1994] SASC 5218; (1994) 63 SASR 139.

^[41] [2010] SASC 112 at [10]–[15].

^[42] Whether questions of admissibility (for example the Christie discretion or its equivalent under the various Uniform Evidence Acts) involve the exercise of a true discretion or are evaluative questions with a unique answer has been subject of debate in New South Wales and Victoria; see Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [42]; R v Riley [2020] NSWCCA 283; Kadir v The Queen (2020) 267 CLR 109. Whether ss 34P(2)(a) and 34P(3) involve the exercise of a discretion as opposed to an evaluative judgment was not argued in this case but see R v Fleming (2017) 129 SASR 27 at [60].

^[43] (2014) 120 SASR 268 at [48].

^[44] R v Cluse (2014) 120 SASR 268 at [74].

^[45] R v Buttigieg [2020] SASCFC 38 at [42].

^[46] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299.

^[47] [1994] HCA 49; (1994) 181 CLR 295 at 299.

^[48] (2015) 122 SASR 546 at [7] (Gray and Nicholson JJ agreeing).

^[49] R v Fleming (2017) 129 SASR 27 at [61].

^[50] Hamra v The Queen [2017] HCA 38; (2017) 260 CLR 479 at [41].

^[51] See R v Brougham (2015) 122 SASR 546; R v Fleming (2017) 129 SASR 27.

^[52] R v Willingham (2012) 112 SASR 278 at [33].

^[53] R v Buttigieg [2020] SASCFC 38 at [39].

^[54] While the particulars were stated in the alternative the case appears to have been conducted on the basis that Webb attempted to dissuade Noel from attending as a witness at judicial proceedings. No question of potential duplicity was raised at trial or on appeal.

^[55] (2018) 132 SASR 155.

^[56] Doney v The Queen [1990] HCA 51; (1909) 171 CLR 207 at 214–215.

^[57] (2018) 132 SASR 155 at [21]–[22] (citations omitted).

^[58] R v Garner & Webb [2020] SADC 143 at [174].

^[59] R v Garner & Webb [2020] SADC 143 at [181].

^[60] R v Garner & Webb [2020] SADC 143 at [183].

^[61] R v Garner & Webb [2020] SADC 143 at [178]–[180] (citations omitted).