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MCROBERTS v THE KING [2024] SASCA 92 (1 August 2024)

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MCROBERTS v THE KING [2024] SASCA 92 (1 August 2024)

Last Updated: 5 August 2024

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.

MCROBERTS v THE KING

[2024] SASCA 92
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)

1 August 2024

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS

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

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS

The appellant was charged with four counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) against three complainants, namely MS (count 1), SH (counts 2 and 3) and DD (count 4). The offences allegedly occurred between 26 November 1991 and 9 April 1997. At all relevant times, the appellant was a Scout Leader with Scouts South Australia (‘Scouts SA’). The appellant’s relationship with each complainant arose from his association with Scouts SA.

The appellant made an application for separate trials as between complainants. The prosecution submitted that the evidence of each complainant was cross-admissible for propensity reasoning and similarity of account reasoning. Each complainant gave an account of the appellant touching him or her on the genital area over the clothing when a prepubescent child and at a time when entrusted to his care and supervision. It was alleged at trial that similarities between the complainants’ accounts rendered the hypothesis that each complainant independently fabricated, imagined or were otherwise mistaken about the offending so improbable that the probative value of the evidence outweighed its prejudicial effect.

The trial Judge held the evidence was cross-admissible for similarity of account reasoning and refused the application for separate trials.

After a trial before a jury, the appellant was found guilty of counts 1 and 4 and not guilty of counts 2 and 3.

The grounds of appeal challenged the cross-admissibility of each complainant’s evidence on the basis of similarity of account reasoning and the trial Judge’s refusal to order separate trials; the admission of evidence of uncharged acts relating to MS and DD; and the adequacy of the trial Judge’s directions in relation to that evidence.

Held, by the Court granting permission to appeal on all grounds but dismissing the appeal:

  1. The trial Judge’s refusal to order separate trials did not occasion a miscarriage of justice. The evidence of each complainant was cross-admissible in proof of all charges on the basis of similarity of account reasoning.
  2. The focus of the analysis for similarity of account reasoning must be on the circumstances of the offending as described by each complainant and the degree of similarity in their accounts. However, R v C, CA [2013] SASCFC 137 is not authority for the proposition that a complainant’s account as to his or her relationship with an accused person, and any similarity between complainants as to that fact, is always irrelevant for similarity of account reasoning. It will depend upon the circumstances of each case.
  3. The similarities in the complainants’ accounts were peculiar and distinct in their detail and transcended generic allegations common to many allegations of child sexual abuse. The complainants’ accounts, considered as a whole, gave rise to the objective improbability of the events occurring in a manner other than alleged by the prosecution. The evidence of each complainant was cross-admissible on the charges relating to the other complainants on the basis of similarity of account reasoning.
  4. The discretionary power to order separate trials was not enlivened and the refusal by the trial Judge to order separate trials was not erroneous.
  5. The evidence of an uncharged act by MS was admissible to provide the jury with a complete account of the appellant’s relationship with MS. It provided evidence of the extent of his relationship with MS and his level of comfort within her family home environment at a time proximate to the incident the subject of count 1. The evidence was admissible under s 34P(2)(a) of the Evidence Act.
  6. The trial Judge’s directions as to the uncharged act on MS complied with s 34R of the Evidence Act.
  7. The evidence of an uncharged act by DD was relevant and admissible to provide the jury with a complete account of the appellant’s relationship with DD around the time of the charged offence. The evidence was capable of explaining the appellant’s familiarity with DD and his confidence in committing the charged offence when there was a real risk of detection. The evidence was admissible under s 34P(2)(a) of the Evidence Act.
  8. The trial Judge’s directions as to the uncharged act on DD complied with s 34R of the Evidence Act.

Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Procedure Act 1921 (SA) ss 102, 102(5); Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34P(3), 34S, 34R; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), referred to.

R v C, CA [2013] SASCFC 137, distinguished.

Hoch v the Queen [1988] HCA 50; (1988) 165 CLR 292; House v The King (1936) 55 CLR 499; MDM v The Queen [2020] SASCFC 80; R v C, CA [2013] SASCFC 137; R v Marshall [2023] SASCA 105, discussed.

Johnson v The Queen  [2018] HCA 48 ; (2018) 266 CLR 106; Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595; R v DES [2020] SASCFC 32; R v McRoberts [2023] SADC 38; Slape v the Queen [2022] SASCA 91, considered.

MCROBERTS v THE KING
[2024] SASCA 92

Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA

  1. THE COURT: The appellant was charged with four counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) against three complainants, namely MS (count 1), SH (counts 2 and 3) and DD (count 4). The offences allegedly occurred between 26 November 1991 and 9 April 1997. At all relevant times, the appellant was a Scout Leader with Scouts South Australia (‘Scouts SA’). On the prosecution case, his relationship with each complainant arose from his association with Scouts SA. In the case of SH, the appellant was the leader of his Scout group, and in the cases of MS and DD, their older siblings were members of such a group.
  2. The appellant sought an order for separate trials in relation to each complainant. That application was refused by the trial Judge.
  3. After a trial before a jury, the appellant was found guilty of counts 1 and 4 (relating to MS and DD) and not guilty of counts 2 and 3 (relating to SH).
  4. The appellant now appeals his convictions. The grounds of appeal concern the trial Judge’s refusal to order separate trials, and the admission of evidence of discreditable conduct relating to MS and DD, as well as the adequacy of his Honour’s directions in relation to the evidence of discreditable conduct.
  5. For the reasons which follow, we grant permission to appeal on all grounds but dismiss the appeal.

The alleged offending

  1. The alleged offending concerned three complainants. Whilst the appellant was found not guilty of counts 2 and 3 (relating to SH), it is necessary to outline the whole of the evidence concerning all counts to properly consider the question of cross-admissibility and whether the trial Judge’s refusal to order separate trials was erroneous.
  2. At all relevant times, the appellant was a Scouts Leader. The complainants were unknown to each other, and there was no evidentiary basis to suggest collusion between them. The offending the subject of counts 1, 2 and 4 involved the appellant allegedly touching each of the complainant’s genitals. Count 3 related to an allegation that the appellant caused SH to touch his penis (on the same occasion as count 2). There was also evidence of uncharged acts in relation to MS and DD. The prosecution relied on the evidence of the uncharged acts for a ‘non‑propensity contextual use’.
  3. On the prosecution case, each complainant gave an account of having been sexually abused by the appellant (an adult they formed an association with through Scouts SA) when a prepubescent child and at a time when they were entrusted to his care and supervision. Each complainant described the appellant placing his hand in their underwear or pyjamas and touching them on the bare skin of their genitals in brazen circumstances where detection was a real possibility.
  4. The prosecution alleged that the similarities between the complainants’ accounts rendered the hypothesis that each complainant independently fabricated, imagined or were otherwise mistaken about the offending so improbable that the probative value of the evidence outweighed its prejudicial effect.
  5. The evidence relevant to each charged offence was as follows.

Count 1 - MS

  1. MS was born on 2 February 1985. At the time of the alleged offending, she was between six and seven years of age and lived with her family at Glengowrie. Between November 1991 and May 1994, her brother, DS, was a Cub Scout attached to the Glenelg Cub Pack. Between May 1991 and April 1992, the appellant was the Assistant Cub Scout Leader at the Glenelg Cub Pack. MS and her family became associated with the appellant through DS’s involvement with the Glenelg Cub Pack. The appellant visited their home on multiple occasions.
  2. MS gave evidence that on one occasion when the appellant visited her home, she and the appellant were using a computer in DS’s bedroom. DS was also there. MS said she was sitting on the appellant’s lap, and he was tickling her when she felt that he had an erection. She looked around and saw the appellant’s erect penis through the top of his pants. She said she made a comment to the effect that it looked like a sausage. This incident was led as an uncharged act and is the subject of appeal grounds 2 and 3.
  3. MS gave evidence about another occasion when she was driving with the appellant in his vehicle. She was seated in the front passenger seat, and there were no other passengers in the vehicle. MS said the appellant stopped the vehicle at a tram crossing and reached over and touched her vagina by placing his hand down the front of her pants and underwear. This caused a tickling sensation. He asked her ‘how does that feel?’ and she responded by saying that it tickled. MS said the touching continued for a couple of minutes until the tram passed whereupon he removed his hand from her pants and started driving again. This incident was the subject of count 1.
  4. MS’s father gave evidence that he recalled an occasion when the appellant took MS for a drive to collect some ingredients for a meal they were preparing together at MS’s home.

Counts 2 and 3 - SH

  1. SH was born on 22 March 1985. He was involved in Scouts SA from 1993 to 1997. Between November 1993 and July 1996, he attended Salisbury Downs Cubs as a Cub Scout, and between July 1996 and March 1997, he attended Salisbury Downs Scouts as a Scout. The appellant was involved in the Salisbury Downs Scouts from 6 December 1995 to 27 November 1998, either as a Cubs Scout Leader, an Assistant Scout Leader, or a Scout Leader. The appellant was known by the nickname of ‘Duck’.
  2. The alleged offending occurred at a sleepover held at the Salisbury Downs Scout Hall supervised by the appellant and other adults. SH said that he and other children set up their sleeping bags in the Scout Hall and watched a movie. SH’s sleeping bag was next to the appellant. SH said that during the movie the appellant reached into his sleeping bag and grabbed his penis and testicles for several minutes (count 2). The appellant then took his hand and placed it on the appellant’s penis for several minutes (count 3).
  3. During the trial, defence counsel put to SH that he had a motive to lie. It was suggested to SH that he had fabricated the allegations to receive financial compensation. SH denied this suggestion but agreed that he made a complaint to the Royal Commission into Institutional Responses to Child Sexual Abuse and was paid about $500,000.00 compensation. He clarified that after paying his legal costs, he only received about $380,000.00.
  4. The appellant was found not guilty of counts 2 and 3.

Count 4 - DD

  1. DD was born on 9 April 1987. He was a Joey Scout at the Salisbury Downs Scout Unit between 8 November 1993 and 23 May 1995, and a Cub Scout between 23 May 1995 and 31 March 1998. His older siblings were also involved in Scouts SA, as was his mother, PL, who was a Scout Leader. The appellant was a Scout Leader at the Salisbury Downs Scout Unit from 6 December 1995 to 27 November 1998.
  2. The appellant met DD’s family through his association with Scouts SA. After a time, the appellant started visiting DD and his family at their home. DD also recalled attending the appellant’s home, as well as his parents’ home. In addition, DD and his brother regularly attended a fish and chip shop owned by the appellant where DD’s sister also worked. DD said the appellant sometimes gave him and his brother cigarettes and loose change.
  3. DD gave evidence about an occasion at the appellant’s house when the appellant offered him a full body massage with oils but said that the massage did not eventuate. This uncharged act is the subject of appeal grounds 4 and 5.
  4. DD also gave evidence about an occasion when the appellant took him and his brother fishing. DD said he was eight or nine years of age at the time. The appellant, DD and his brother rode their bikes to an inlet near Globe Derby Park. There was some discussion about going swimming, but DD did not have any bathers. DD said that the appellant told him that he could swim in his jocks if he wished, and he did so. At some point, the appellant came up behind him and started tickling him by running his hands across his shoulders and back. DD said the appellant’s hands began moving down towards his underpants and at one stage, the appellant said, ‘tell me to stop if you want me to’, but DD did not say anything. DD said the appellant then placed his hand inside the waist band of his underwear and on his bottom cheeks, and then inside the front of his underwear. He said the appellant brushed past his genitals as he was tickling them with his fingertips and touched him between his buttocks and scrotum. This conduct is the subject of count 4.
  5. DD could not say whether the fishing trip (and the charged offence) occurred before, or after, the appellant offered him a massage but said the two incidents took place within a couple of weeks of each other.
  6. SD (DD’s older brother) recalled going on a fishing trip with the appellant and DD. He said that the only time DD and the appellant were alone was when he (SD) went to the toilet, but he was never out of earshot. SD said that he did not remember going swimming in his underwear during the fishing trip nor did he recall DD going swimming with the appellant.
  7. At trial, the appellant did not give evidence nor call any evidence.

Ground 1 – separate trials

  1. The appellant made an application before the trial Judge seeking three separate trials as between complainants. The prosecution opposed the application contending that the evidence of each complainant was cross‑admissible on two bases; first, for similarity of account reasoning; and secondly, to establish that the appellant had a particular propensity to opportunistically sexually abuse prepubescent children known to him through Scouts SA by touching their genitals.
  2. After receiving both written and oral submissions, the trial Judge held that the evidence was cross-admissible on the basis of similarity of account reasoning but not for a propensity purpose. Accordingly, the application for separate trials was refused. His Honour later published reasons for his ruling.[1]
  3. Under appeal ground 1, the appellant complains that the trial Judge’s refusal to order separate trials occasioned a miscarriage of justice. The appellant contends that the evidence of each complainant was not cross-admissible in proof of all charges on the basis of similarity of account reasoning; and if there was a permissible use of the evidence of each complainant on the charges relating to the other complainants, the use could not be kept sufficiently separate and distinct from the impermissible use of the evidence. Therefore, the discretion to order separate trials was enlivened and his Honour’s refusal to order separate trials was unreasonable or plainly wrong.

Legal principles

  1. Section 102 of the Criminal Procedure Act 1921 (SA) (‘the CPA’) governs the joinder and separation of charges on an Information. Relevantly, it provides:

102—Joinder and separation of charges

(1) Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.

...

...

(5) A court may direct that—

(a) charges contained in a single information be dealt with in separate proceedings; or

(b) charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information).

(6) Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:

(a) subject to paragraph (b), those counts are to be tried together;

(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.

  1. It was common ground at trial, and on appeal, that the charges were properly joined. As the appellant was charged with multiple sexual offences against different alleged victims, pursuant to s 102(6) of the CPA, the power to order separate trials was enlivened only if the evidence relating to one count (and a particular complainant) was not admissible in relation to the other counts (and other complainants).
  2. The evidence of each complainant as to the indecent touching constituted evidence of discreditable conduct in respect of the charges relating to the other complainants. Consequently, s 34P of the Evidence Act 1929 (SA) ('the Evidence Act’) was engaged.

  1. Section 34P relevantly provides:

34P—Evidence of discreditable conduct

(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

(b) is inadmissible for that purpose (impermissible use); and

(c) subject to subsection (2), is inadmissible for any other purpose.

(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and

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

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

  1. In his reasons for ruling, the trial Judge held that the evidence was cross‑admissible for similarity of account reasoning but not for a propensity purpose. Thus, the question of cross-admissibility fell to be determined under s 34P(2)(a). In this case, the prosecution sought to rely on similarity of account reasoning to prove the occurrence of the sexual offending. While the identity of the offender was not conceded in respect of SH, the prosecution explicitly disavowed reliance on similarity of account reasoning in proof of this factual issue. By the conclusion of the trial, the issue of identity in relation to SH was only faintly pressed by defence counsel and the central issue in dispute was whether the sexual acts occurred as alleged by each complainant.
  2. Under s 34S of the Evidence Act, the exclusion of the possibility of collusion or concoction is not a pre-condition for admissibility of similarity of account evidence. In any event, there was no suggestion of any possibility of collusion or contamination between complainants. They were unknown to each other.

Similarity of account reasoning

  1. The decision whether to order separate trials is discretionary and the principles in House v The King[2] apply. However, the admissibility of the evidence of discreditable conduct under s 34P(2)(a) is an evaluative question of law admitting of only one answer. The task for this Court is to evaluate whether the evidence was cross-admissible, rather than determining whether it was open for the trial Judge to find that it was. Whether or not each complainant’s evidence of the alleged offending is admissible under s 34P(2)(a) on all charges will usually, but not always, be determinative of whether the trial Judge erred in the exercise of the discretion not to order separate trials.
  2. The principles relevant to similarity of account reasoning were explained in Hoch v the Queen (per Mason CJ, Wilson and Gaudron JJ): [3]

Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force. See Perry v The Queen; Sutton v The Queen; Reg v Boardman. That strength lies in that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.

...

Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other, as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v Sims) or as corroboration (Reg v Kilbourne) but the better view would seem to be that it is relevant to prove the commission of the disputed acts. See Boardman, per Lord Halisham and Lord Cross; Sutton per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known speech of Lord Wilberforce in Boardman:

The probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.

Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is the improbability of similar lies: See Sims; Boardman. See also Rupert Cross, “R v Sims in England and the Commonwealth”, Law Quarterly Review; Piragoff, Similar Fact Evidence.”

(Citations omitted.)

  1. Under s 34P(2)(a), where the permissible use of the evidence sought to be employed is similarity of account reasoning, the probative value of the evidence lies ‘... in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarities unless the happenings occurred.’[4] That is, the probative value lies in the ability of the evidence to raise, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.
  2. The probative value of similarity of account reasoning in the context of s 34P(2)(a) was explained by Kourakis CJ in R v C, CA:[5]

The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender.

...

The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complainants might be expected if the complainants for reasons, conscious or subconscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.

  1. Where the evidence of multiple complainants is sought to be adduced as cross-admissible on the basis of similarity of account reasoning, the focus of the analysis must be on the circumstances of the offending as described by each complainant and the degree of similarity in their accounts. The strength of the evidence may lie in the ‘unusual features’ or ‘underlying unity’ or ‘system’ or ‘pattern’ established by the evidence. However, it is not necessary to establish a ‘striking similarity’ between the accounts or a unique modus operandi for the evidence to meet the threshold for admissibility. What is required is that the similarities in the complainants’ accounts raise, as a matter of common sense and experience, the improbability of each complainant having independently fabricated or imagined their allegations.
  2. In evaluating the similarity of account as between complainants, and the extent to which those similarities bear upon the improbability of concoction or coincidence, the starting point will often be the inherent unlikelihood of more than one child known to an adult accused alleging sexual abuse and alleging that the accused was the offender. As Kourakis CJ explained in MDM v The Queen,[6] when evaluating similarities in the independent accounts of different child complainants, the first significant improbability is that two or more children known to the accused fabricated or imagined that they were sexually abused, and the accused was the offender; and any additional similarities build on that initial improbability. Kourakis CJ said:[7]

In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen, which had required the trial Judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi. It is not possible to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence.

(Citations omitted.)

  1. In the present case, the trial Judge instructed the jury that there were several common features to the complainants’ accounts relevant to the improbability of each complainant’s independent concoction or coincidence of the allegations. They were as follows:
    1. Each complainant came forward and said they were sexually touched by ‘Peter’ from the Scout group with which they had a connection.
    2. Each complainant alleged that the touching occurred in a reasonably open place.
    3. The touching occurred when ‘Peter’ was supervising or looking after them.

4. The touching occurred when they were prepubescent in age.

  1. The touching occurred on the bare genitals by Peter’s hand going into the front of their garments.
  2. The appellant contends that the common features between the complainants’ accounts were not of a sufficiently similar character to meet the threshold for admissibility under s 34P(2)(a). More specifically, the appellant contends that the common relationship between the appellant and each complainant by virtue of his association with Scouts SA was not relevant to similarity of account reasoning. Rather, the relevant similarities are confined to those matters which form part of each complainant’s narrative of the alleged offending conduct. Therefore, it was not relevant that each complainant alleged he or she was indecently touched by a male named ‘Peter’ they knew from a Scout group with which they had a connection. This contention also underpinned appeal ground 6 which alleges that the trial Judge’s instruction to the jury to that effect was a misdirection which resulted in a miscarriage of justice.
  3. In support of these submissions, the appellant relied on R v C, CA.[8] In that matter, the appellant was convicted of numerous sexual offences against three complainants. Two complainants (twin brothers: SG and MG) became acquainted with the appellant through their friendship with his stepdaughter and son. The third complainant, MA, met the appellant at an equestrian centre operated by the appellant and his wife, where MA became friendly with the appellant’s son. All complainants were associated with the appellant’s son and through this friendship, spent time with the appellant at his home and on outings. The appellant’s counsel at trial sought separate trials as between the complainants SG and MG, on the one hand, and MA on the other. The trial judge held that the evidence of each complainant was cross-admissible for propensity reasoning and similarity of account reasoning on the charges relating to all complainants and refused the application for separate trials.
  4. The appellant appealed against his convictions on numerous grounds including, inter alia, that the evidence of each complainant was not cross‑admissible on the trial of the charges relating to the other complainants, and that the trial Judge’s directions as to the use of the evidence did not comply with s 34R.
  5. The Court allowed the appeal. In relation to the appeal ground challenging the adequacy of the directions, the Court held that the directions failed to differentiate between two quite different bases for cross-admissibility, and there was no explicit explanation of the different reasoning processes such that ‘merely recounting a list of similarities is of no assistance.’
  6. Kourakis CJ (with whom Anderson and Nicholson JJ agreed) set out the trial Judge’s directions on the cross-admissibility of the evidence as follows:[9]

The Judge directed the jury on the cross-admissibility of the evidence in the following passages:

The third direction that I must give you about the way the evidence may be used is this: you might find that the evidence of the accused’s treatment of the complainants is so similar or has about it an underlying unity of system so that the only rational explanation for the evidence of the three complainants is that it is true, it could not be explained by mere coincidence. ... Further, you would need to be satisfied beyond reasonable doubt that the only rational explanation for the similarity of the evidence of two or all three of the complainants is that it is true. Not only is it a rational inference, but it must be the only rational inference that the accused did those things, and you can exclude any other rational explanation. If you are satisfied that there is no other rational explanation for the similarities or the underlying unity of system that you find established beyond reasonable doubt between the complainants, then you may use the evidence in respect of which you are satisfied in assessing the evidence of the other complainants. ... It is when you put all of these features together, [the prosecutor] says, and consider them as a whole that the underlying unity of system in which the accused engaged with each of the boys, it revealed such a pattern that there could be no other rational explanation for it other than the fact that these events occurred. On the other hand, [counsel for the defendant] says there is no such pattern or underlying unity of system. He drew your attention to a number of different features of the evidence of the complainants from which he suggests that you cannot reject as a reasonable possibility some form of concoction or reconstruction arrived at by each of the complainants.

The Judge then reminded the jury of the similarities on which the prosecution had relied:

1 The similar age of the boys;

2 The absence of a father figure in the boys’ lives;

3 The common acquaintance with KC which the appellant was alleged to have “fostered” to win an opportunity to spend time with them;

4 The practice of taking the boys on outings;

5 The appellant’s exploitation of the opportunities offered by the complainants sleeping over to further his relationship with them;

6 The opportunities of the appellant to see the boys naked, thereby “normalising naked behaviour”, arising out of the nature of those activities;

7 Swimming naked with the boys at the State Swim Centre;

8 Asking SG and MA to swim naked at the beach;

9 The way in which the appellant observed all three boys whilst they showered;

10 The appellant’s practice of fellating MA and MG in the kneeling position while he masturbated himself.

  1. Kourakis CJ then articulated why the trial Judge’s directions were inadequate. His Honour explained that the directions did not: expressly identify the coincidence or other rational explanations to which the trial Judge was referring; state how the cross-admissible evidence tended to disprove coincidence or exclude other rational explanations; or how the probative value of the complainants’ accounts went to the issue of whether they had independently, but coincidentally, fabricated or imagine highly similar accounts.
  2. In particular, the appellant relied on the following remarks of Kourakis CJ who said:[10]

...

Indeed, the similarities I have numbered (1)-(4) have no relevance for the purpose of a similarity of account reasoning. They do not make it less probable that the complainants had independently come to make false complaints against the appellant. On the contrary, it could be argued that those common features might explain how they independently came to make false complaints of the kind made. Indeed, those similarities were, by and large admitted. There was no issue as to their falsity or accuracy.

  1. The appellant contends that these remarks are authority for the proposition that any common feature in the complainants’ relationship with an accused person is not a relevant factor in assessing the admissibility of evidence for similarity of account reasoning. As such, in the present case, the fact all three complainants recounted that they were touched by ‘Peter’ from the Scout group with which they all had a connection (whom it was proved was the appellant by other evidence), was not a relevant factor when considering whether their evidence was cross‑admissible for similarity of account reasoning.
  2. It is important to recognise that in R v C, CA, the way in which the trial Judge framed the similarity labelled (3), namely that all complainants had a common acquaintance with the appellant’s son, KC, which the appellant allegedly ‘fostered’ to spend time with the complainants can immediately be contrasted with the relevant similarity in this case. Here, it was the fact that all complainants recounted as part of their narrative that ‘Peter’ (the appellant) was a person known to them through his association with Scouts SA, which directly or indirectly, led to a situation where the appellant was entrusted with a supervisory role in respect of each complainant, and whilst supervising each complainant committed an act of indecent touching. This similarity went further than the fact all complainants recounted that the offender was a Scout Leader (or, as in R v C, CA, that all complainants were acquainted with the appellant’s son). Indeed, in R v C, CA, it was acknowledged that the fact that all complainants recounted that the appellant exploited the opportunities presented during sleepovers (points numbered 6 and 7) was a relevant factor to take into account in similarity of account reasoning.
  3. Moreover, in R v C, CA it was significant that there were no directions by the trial Judge as to how the similar relationship with the appellant as between all complainants (or the other purported similarities) would render it improbable that each complainant independently fabricated the allegations. In the present case, there was no challenge to the adequacy of the trial Judge’s directions in that regard.
  4. We do not consider that R v C, CA is authority for the proposition that a complainant’s account as to his or her relationship with an accused person, and any similarity as between complainants as to that fact, is always irrelevant in evaluating the admissibility of similarity of account evidence. That is too absolute a proposition. It will depend upon the circumstances of each case, including matters such as the nature of the relevant relationship, how that relationship features in a complainant’s narrative of the alleged offending, and the similarities that may exist in the complainant’s accounts as to how an otherwise orthodox relationship between an adult and a child may have been corrupted or manipulated by an accused person to commit the sexual offences.
  5. As explained in R v C, CA (and other subsequent authorities)[11] the analysis in similarity of account reasoning must focus on those similarities between the complainants’ narratives of the alleged sexual abuse. However, the analysis is not confined to a consideration of similarities between the physical acts of sexual abuse, or even to the immediate setting in which they occurred. That is because the relationship between an accused person and a complainant, and other features of that relationship may well form an integral part of a complainant’s account as to the alleged offending. It may inform the circumstances and context in which the alleged sexual offending occurred. It may also be a significant aspect of the complainant’s narrative as to the manner an accused person corrupted an otherwise orthodox relationship to enable the commission of the alleged offences.
  6. In this way, a common relationship between an accused person and multiple complainants may raise the improbability that multiple children happen to fabricate or imagine that they were sexually abused by the accused. Ultimately, the determinative question is whether the similarities between complainants’ accounts are capable of bearing upon the improbability of fabrication, coincidence or collusion such as to render the evidence more probative than prejudicial.
  7. In this case, the fact that all three complainants recounted that they met the appellant through his association with Scouts SA, and that they were entrusted to his care either directly or indirectly through his role with Scouts SA, and whilst in his care the appellant indecently touched them, rendered the common relationship a relevant similarity capable of bearing upon the improbability of independent fabrication by each complainant. While that improbability may not, in isolation, have been sufficient to meet the threshold for admissibility under s 34P(2)(a), it was still a relevant factor to be considered, with any other additional similarities, in evaluating the probative force of the evidence.

The amendment to s 34P(2)(a) of the Evidence Act

  1. An aspect of the appellant’s submissions as to whether the complainants’ evidence was cross-admissible for similarity of account reasoning, was that the recent amendments to s 34P(2) should not result in any ‘genuine relaxation’ of the test for admission in light of the fact s 34P(3) remains unaltered.
  2. The Statutes Amendment (Child Sexual Abuse) Act 2021 amended s 34P(2)(a) of the Evidence Act by removing the word ‘substantially’ from the threshold test. The resulting requirement is that the probative value of the evidence of discreditable conduct must outweigh its prejudicial effect, simpliciter.
  3. The extrinsic materials indicate that Parliament’s intention in amending s 34P(2)(a) was to ensure greater admission of evidence of discreditable conduct (including similarity of account evidence) in the trials of persons charged with sexual offences. In the second reading speech of the Bill, the Minister said as follows about the amendment:[12]

Clause 17 of the bill amends section 34P of the Evidence Act to increase the admissibility of discreditable conduct evidence. Discreditable conduct comprises a propensity and similarity of account evidence. The royal commission recommended reform to the law governing the admissibility of discreditable conduct evidence. However, South Australian law in this area is well settled and it is not necessary to adopt major reform. Instead, a minor amendment has been made, encouraging greater admission of this evidence. In order to admit evidence of this kind, section 34P(2) of the Evidence Act requires that its probative value substantially outweighs the prejudicial effect that it may have on the accused. Clause 17 of the bill removes the word ‘substantially’.

  1. In Marshall,[13] this Court observed that the removal of the word ‘substantially’ was plainly done to lower the threshold for admissibility. As this Court said:

... The evaluation now required by s 34P(2) is likely to come down in favour of admissibility whenever the evidence going to similarity of account can be identified as having real probative value notwithstanding that there may also be an identifiable prejudicial effect.

It is, as a result, necessary to review earlier authorities on s 34P(2)(a) with this qualification in mind.

  1. The appellant submits that while the removal of the words ‘substantially’ allows for the admission of less probative evidence, it will be more susceptible to misuse and it follows that the evidence will be caught by the strictures of s 34P(3). Accordingly, there will be no real change to the threshold for admission of evidence under s 34P(2)(a). We do not accept this to be necessarily so. Much will depend upon the specific nature of the evidence sought to be adduced, and the proposed directions as to the permissible and impermissible use of the evidence.
  2. It is also important to emphasise that similarity of account reasoning is markedly different from bad person reasoning, and for that reason the relevant considerations required under s 34P(3) are, generally speaking, more easily satisfied for similarity of account evidence than when evidence is adduced to establish a particular proclivity or disposition for propensity reasoning.[14]
  3. Turning to the present case, and a direct consideration of whether the complainants’ evidence was cross-admissible for similarity of account reasoning. We are satisfied that the accounts of MS, SH and DD as to the appellant’s offending, when considered as a whole, had a sufficient degree of similarity to meet the threshold for admissibility required by s 34P(2)(a). The evidence rendered any suggestion that each complainant independently fabricated, imagined or was mistaken as to his or her account of indecent touching so improbable that the probative value of the evidence outweighed its prejudicial effect.
  4. As a starting point, it was a fundamental improbability that three children unknown to each other, but all known to the appellant through his association with Scouts SA, happened to fabricate or mistakenly believe that they were indecently touched, and that the appellant was the offender.
  5. As to the common relationship between the appellant and the complainants, and as outlined earlier, the appellant came to know MS’s family because he was a Scout Leader at the Glenelg Cub Pack of which MS’s brother, DS, was a member. Through that association, the appellant became friendly with MS’s parents and attended her family home for meals which he helped prepare. It was on one such occasion that the appellant took MS for a drive and committed the offence the subject of count 1. The appellant was the Scout Leader of SH at Salisbury Downs, and allegedly offended against him during a Scouts sleepover which the appellant was tasked with supervising him. As to DD, the appellant became friendly with his family as DD and his two siblings were involved in Joeys, Cubs and Scouts. It was through Scouts SA that the appellant developed a relationship with DD’s family whereby he was entrusted to take DD and his brother on a fishing trip during which the appellant allegedly indecently touched DD.
  6. We are satisfied that there was an inherent improbability three complainants known to the appellant through his association with Scouts SA, and unknown to each other, would allege that they were indecently touched by the appellant unless that occurred, or the allegations arose from collusion between the complainants. However, bearing in mind the large number of children that the appellant would have encountered as a Scout Leader over many years, we do not consider this fact in isolation, would be sufficient to justify cross-admissibility on the basis of similarity of account reasoning under s 34P(2)(a). Even so, the common relationship or association between the appellant and each complainant remained a relevant factor when considering whether there was a sufficient similarity of accounts between complainants such that the evidence raised the objective improbability of something having occurred other than alleged by the prosecution and to meet the threshold test for admission.
  7. The were also other similarities between the complainants’ accounts.
  8. First, each complainant alleged that the appellant committed the relevant offence when they were entrusted to his sole care and supervision. While there were differences as to the settings in which the alleged offences were committed (on a car trip, during a sleepover and on a fishing trip), they all gave an account of the appellant indecently touching them at a time when they were entrusted to his care and supervision by reason of his association with Scouts SA.
  9. Secondly, each complainant alleged that the offending occurred in a reasonably open or public place where there was a risk of detection by others. The complainants all alleged that the appellant seized an opportunity to offend notwithstanding there was a real possibility of detection. As to MS, the offending allegedly occurred whilst the appellant’s vehicle was stopped waiting for a tram to pass, during the day, and potentially in view of other road users. In respect of SH, the offending occurred at a public hall during a movie and sleepover with many other children present. As to DD, the offending occurred during a fishing trip when DD’s brother was in the nearby vicinity.
  10. Thirdly, the complainants all gave accounts of the appellant having touched them when they were prepubescent children of similar ages.
  11. Fourthly, the nature of the sexual touching was all broadly similar. They all gave evidence of the appellant touching their bare genitals by placing his hand into the front of their underwear. In the case of MS and DD, each complainant described the touching as creating a ‘tickling’ sensation.
  12. The appellant relied on what was said to be significant differences in the accounts as between complainants. Most obviously, MS is female, and SH and DD are male. The offending also occurred in quite disparate settings: MS described being indecently assaulted whilst alone with the appellant in a vehicle; SH described being touched at a sleepover with many persons present; and DD described the appellant touching him at a water inlet while his brother was in the vicinity. Such differences in detail are relatively insignificant bearing in mind the overall similarities between the complainants’ accounts, detailed above, which we are satisfied raise, as a matter of common sense and experience, the objective improbability of the events having occurred other than as alleged by the prosecution.
  13. We have also considered the appellant’s submission that most features of the complainants’ accounts, relied upon by the prosecution as relevant similarities, are unremarkable and common to many defendants charged with sexual offences. These ‘stock in trade’ similarities include the nature of the alleged touching of the child’s genital area, the fact the touching occurred when the complainants were prepubescent, and when the appellant had access to each child. While there is some force in those submissions, they do not properly reflect the complete context in which the offending allegedly occurred and the similarities in the detail of the complainants’ accounts. Whilst it is true that all offenders must have access to their child victims to commit a sexual offence, in this case, the appellant’s access to each complainant was by reason of his relationship with the child or their family borne out of his association with Scouts SA whereby he was entrusted with their supervision and care by reason of that otherwise orthodox association. Furthermore, the alleged indecent touching of all complainants involved the appellant placing his hand inside the child’s undergarments and touching his or her bare genitals in circumstances where the appellant was at risk of detection. The similarities in the accounts were peculiar and distinct in their detail and transcended generic allegations common to many allegations of child sexual abuse.
  14. When one stands back and considers the complainants’ accounts in their entirety, we are satisfied there were sufficient similarities to render the hypothesis that each complaint had independently fabricated, imagined or was otherwise mistaken about the allegations so improbable that the probative value of the evidence outweighed its prejudicial effect. The complainants’ accounts, looked at as a whole, gave rise to the objective improbability of the events occurring in a manner other than alleged by the prosecution.
  15. We are also satisfied that the permissible and impermissible uses of the evidence could be kept sufficiently separate and distinct as required by s 34P(3).
  16. The evidence was admissible under s 34P(2)(a). Accordingly, the discretionary power under s 102(5) to order separate trials was not enlivened and the refusal by the trial Judge to order separate trials was not erroneous.
  17. For those reasons, we dismiss appeal grounds 1 and 6.

Grounds 2 and 3 – uncharged acts relating to MS (count 1)

  1. The appellant complains that the trial Judge erred in admitting evidence of an uncharged indecent touching of MS. The appellant contends that there was no permissible use of the evidence under s 34P(2)(a) or in the alternative, the probative value of the evidence did not outweigh its prejudicial effect, or in the further alternative, the permissible use of the evidence could not be kept separate and distinct from the permissible use to justify its admission as required by s 34P(3) (Ground 2).
  2. The appellant also complains that the trial Judge’s directions failed to adequately, or with sufficient particularity, identify the permissible and impermissible uses of the evidence (Ground 3).
  3. MS gave evidence of an occasion in her brother’s bedroom where she was sitting on the appellant’s lap playing on a computer. She said the appellant tickled her, and she felt his erection against her bottom. MS said that she saw the appellant’s erect penis through the top of his pants. MS could not say whether the uncharged act occurred prior to, or after the charged indecent touching. However, MS said that the two incidents occurred within a few weeks of each other.
  4. At trial, the prosecution specifically disavowed reliance on this alleged uncharged incident to demonstrate a sexual attraction by the appellant towards MS. The prosecution sought to adduce the evidence to provide the jury with a ‘complete account’ of MS’s relationship with the appellant which, if accepted, was capable of shedding light on the charged offending. Defence counsel at trial, whilst accepting that the evidence was relevant to the charge relating to MS (count 1), submitted that the prejudicial effect of the evidence outweighed it probative value given its potential for misuse by the jury in respect of the charges relating to the other complainants (counts 2, 3 and 4).
  5. Contrary to the appellant’s submissions, we are satisfied that the evidence of the uncharged act was relevant and admissible to provide the jury with a complete account of the appellant’s relationship with MS. It provided evidence of the extent of his relationship with MS, and his level of comfort within her home and family environment at a time proximate to the incident the subject of count 1. Without this evidence, the appellant’s opportunistic and brazen conduct in committing the charged offence might have seemed less plausible, and indeed inexplicable.[15]
  6. It was of little moment that MS could not say whether the uncharged act took place before or after the charged offence, given her evidence that both incidents occurred within a short space of time of each other, namely weeks. Consequently, the evidence could demonstrate a familiarity in their relationship around the relevant time of the charged offence which explained the appellant’s brazenness in engaging in the charged acts of indecent touching.
  7. It is to be emphasised that the prosecution case was not that the uncharged incident involved the appellant ‘testing the waters.’ Rather, the evidence of the uncharged act was relied on to establish the appellant’s familiarity with the complainant, and comfort within her family home, at a time proximate to the charged offence, such that it placed the charged offence in its full context in circumstances where it might otherwise appear unlikely. By revealing the true extent of their relationship, the impugned evidence could undermine any suggestion that the charged offence was committed against a child with whom he had little connection or contact.
  8. We are satisfied that the probative nature of the evidence, as explained above, outweighed its prejudicial effect on the appellant. In this case, the impermissible use of the evidence was ‘bad person reasoning’ (or reasoning that a person who has engaged in discreditable conduct is likely to have a predisposition to commit the charged offences by reason of that evidence, whether or not there is a probative connection between the evidence and the offence by way of predisposition). The other prejudicial aspect of the evidence was that it was inadmissible on the charges relating to the other complainants (counts 2, 3 and 4), and the risk of misuse on those charges. In our view, the evidence had considerable probative force in relation to count 1, which could be readily quarantined from the impermissible uses of bad person reasoning and misuse on the offences relating to the other complainants. Accordingly, the permissible use of the evidence could be kept sufficiently distinct and separate from the impermissible use so as to remove any appreciable risk of misuse by the jury as required by s 34P(3).
  9. As to the adequacy of the directions, the trial Judge instructed the jury in the following terms:

The evidence of [MS] on this topic, if accepted, might show Mr McRoberts in a poor light and suggest he is of poor character. It is important to remember that Mr McRoberts is not charged with any offence arising from this part of [MS’s] evidence. Firstly, I will direct you about how you can use this evidence.

The relevance of the evidence, as explained to you by the prosecutor, is that it places in context the evidence of the complainant [MS] about the offence charged. The context may assist you in assessing the evidence of the complainant by providing some background to the offence which might otherwise present as implausible or inexplicable. In her address the prosecutor. referred to some issues about the offence which may be properly understood in the context of the alleged incident on the computer chair. For example, she said, it can provide an explanation about why the accused felt sufficiently confident to act in the way that he allegedly did when committing the offence.

Secondly, I will now direct you on how you must not use the evidence concerning this incident. You must not reason that because the evidence suggests or may suggest that the accused behaved in an inappropriate manner with the child he is of bad character and is therefore more likely to have engaged in the conduct constituting the alleged offence. Reasoning in this way would be unfair and would constitute a serious error.

I repeat, it is impermissible for you to reason that, because the conduct potentially discloses poor conduct or bad character, the accused therefore engaged in the alleged acts constituting the offences. With those directions on the law in mind, I will now turn to summarise the evidence on that topic.

  1. The trial Judge gave clear and correct directions as to the permissible use of the evidence consistent with the prosecution’s proposed use of the evidence. For the reasons articulated above, the evidence was admissible under s 34P(2)(a) for those stated purposes. As to the appellant’s submission that the directions were undermined by his Honour’s use of the phrase ‘for example’, we do not agree. It does not follow that the use of this phrase led the jury to reason that there were no limitations on the permissible use of the uncharged act. His Honour evidently used the words ‘for example’ to introduce the primary way the prosecutor submitted that the uncharged act provided ‘context’ to the charged offence.
  2. Furthermore, immediately following this direction, the trial Judge instructed the jury as to the impermissible uses of the evidence and directed the jury not to engage in ‘bad person’ reasoning. That being so, there was no risk that by reason of his Honour’s use of the phrase ‘for example’ the jury would misuse the evidence or reason impermissibly.
  3. It was also significant that counsel for the appellant at trial did not seek a re‑direction.[16]
  4. For those reasons, we are satisfied that the evidence was admissible under s 34P(2)(a) and the trial Judge’s directions complied with s 34R. We reject appeal grounds 3 and 4.

Grounds 4 and 5 – uncharged act relating to DD (count 4)

  1. The appellant complains that the trial Judge erred in admitting evidence of an uncharged incident involving DD, namely that the appellant offered DD a full body massage. The appellant contends that there was no permissible use of the evidence under s 34P(2)(a) or in the alternative, the probative value of the evidence did not outweigh its prejudicial effect, or in the further alternative, the permissible use of the evidence could not be kept separate and distinct from the permissible use to justify its admission as required by s 34P(3). The appellant also complains that his Honour failed to adequately, or with sufficient particularity, identify the permissible and impermissible uses of the evidence.
  2. DD gave evidence about an occasion when he was at the appellant’s home and the appellant offered him a full body massage including the use of oils. DD could not recall whether the incident occurred before or after the charged offence but said that the two incidents occurred close in time.
  3. At trial, defence counsel did not object to the admission of this evidence. Accordingly, there can be no appeal brought on the ground that there was an error of law in the trial Judge admitting the evidence. The question is whether the admission of the evidence resulted in a miscarriage of justice.
  4. The prosecution relied upon the uncharged act as evidence which informed the jury as to the complete nature of the appellant’s relationship with DD at the time of the alleged offending, and to explain why the appellant might have felt comfortable offending against DD in the manner that he allegedly did. The prosecution submitted that the evidence of the uncharged act, when considered with other evidence that the appellant gave DD cigarettes and loose change, demonstrated a close and familiar relationship between the appellant and DD. Further, the prosecution contended that without the evidence of the uncharged act, the charged offence would appear unlikely or inexplicable.
  5. We are satisfied that the evidence of the uncharged act was relevant and admissible to provide the jury with a complete account of the appellant’s relationship with DD around the time of the charged offence. In the absence of this evidence, the appellant’s conduct in committing the charged offence, particularly when DD’s brother was in the vicinity, might have seemed unlikely or implausible. The evidence was capable of explaining the appellant’s familiarity with DD and his confidence to commit the charged offence when there was a risk of detection.
  6. We are also satisfied that the permissible use of the evidence could be kept sufficiently distinct and separate from the impermissible use so as to remove any appreciable risk of misuse by the jury. The evidence had considerable probative force which could be readily quarantined from ‘bad person reasoning’. With appropriate directions, there was also little risk that the evidence would be misused by the jury in relation to the other charged offences relating to other complainants. There was no miscarriage of justice by reason of its admission.
  7. As to the adequacy of the directions, the trial Judge instructed the jury in the following terms:

I will now pause the summary of the evidence to give you an important direction about the law. The evidence of [DD] that Peter McRoberts offered him a full body massage with oil is relevant only as part of the background to the type of connection between them. If you accept that it occurred, it is part of the context in which the alleged offence against [DD] occurred. On the prosecution case, it may assist you in assessing the evidence of [DD] about the offence. For example, why Peter McRoberts may have felt confident enough to engage in the conduct with which he is charged.

The evidence that Peter McRoberts occasionally supplied cigarettes to [DD] and [SD] is also evidence of the nature of the connection between them. If you accept it occurred, it is relevant, together with other evidence, to establish Peter McRoberts' behaviour towards [DD] and his brother.

The evidence about the offer of a massage and the supply of cigarettes, if you accept that these occurred, may disclose in one's mind that the accused is of poor character and a bad person. it is very important that you put aside any views that this evidence suggests that the accused is a bad person. You must not reason that such evidence of bad character, if that is what you find it is, makes it more likely that the accused has committed the offence with which he is charged. Such reasoning is unfair, it is not permitted and engaging in such reasoning would be a serious error.

  1. It is evident that the trial Judge directed the jury as to the permissible uses of the evidence; namely, that it was only relevant as to inform the jury as to the full extent of the relationship between the appellant and DD (and by implication, was thereby not admissible in proof of the other charges involving other complainants). His Honour directed the jury that the evidence was relevant to assist them in assessing DD’s evidence by explaining why the appellant may have felt confident to commit the charged offence against DD. His Honour also gave the requisite directions to the jury as to the impermissible use of the evidence by instructing the jury not to engage in bad person reasoning.
  2. As to the submission that the trial Judge’s use of the words ‘for example’ in his explanation as to the permissible use of the evidence was erroneous, we do not agree. It was permissible for the jury to use the evidence for the example given by his Honour, namely to explain the appellant’s confidence to commit the charged offence in circumstances where there was a risk of detection. Moreover, there was no risk that the use of the phrase ‘for example’ would cause the jury to engage in impermissible reasoning given the jury were immediately given a direction against bad person reasoning.
  3. It was also significant that counsel for the appellant at trial did not seek a re‑direction in relation to the impugned directions.[17]
  4. For those reasons, we are satisfied that the evidence was admissible under s 34P(2)(a) and the trials Judge’s directions were adequate and complied with s 34R. We reject Grounds 4 and 5.

Conclusion

  1. We grant permission to appeal on all grounds and dismiss the appeal.



[1] R v McRoberts [2023] SADC 38.

[2] (1936) 55 CLR 499.

[3] [1988] HCA 50; (1988) 165 CLR 292 at 294.

[4] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294.

[5] [2013] SASCFC 137 at [61].

[6] [2020] SASCFC 80.

[7] [2020] SASCFC 80 at [14].

[8] [2013] SASCFC 137.

[9] R v C, CA [2013] SASCFC 137 at [91]- [92].

[10] R v C, CA [2013] SASCFC 137 at [93].

[11] See for example: R v DES [2020] SASCFC 32 at [70] per Doyle J; Slape v The Queen [2022] SASCA 91.

[12] South Australia, Second Reading, Legislative Council, 24 August 2021, 3957.

[13] R v Marshall [2023] SASCA 105 at [170]- [171] per the Court (Livesey P, David JA and Kimber AJA).

[14] See the discussion in R v C, CA [2013] SASCFC 137 at [76]- [82] per Kourakis CJ and MDM v The Queen [2020] SASCFC 80 at [16] per Kourakis CJ.

[15] Johnson v The Queen  [2018] HCA 48 ; (2018) 266 CLR 106 at  [19]  per Kiefel CJ, Bell, Gaegler, Nettle and Gordon JJ.

[16] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595, 619 at [60] per Kiefel, Bell and Keane JJ.

[17] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595, 619 at [60] per Kiefel, Bell and Keane JJ.

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