Perara-Cathcart v The Queen

Case [2017] HCA 9

HIGH COURT OF AUSTRALIA

KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

PEDRO PERARA-CATHCART  APPELLANT

AND

THE QUEEN  RESPONDENT

Perara-Cathcart v The Queen

[2017] HCA 9

1 March 2017

A39/2016

ORDER

Appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation

M E Shaw QC with S A McDonald for the appellant (instructed by Ben Sale)

I D Press SC with D P Evans for the respondent (instructed by Director of Public Prosecutions (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Perara-Cathcart v The Queen

Criminal law – Appeal against conviction – Directions to jury – Where discreditable conduct evidence admitted under s 34P of Evidence Act 1929 (SA) – Relevance of discreditable conduct evidence – Whether trial judge adequately directed jury as to permissible and impermissible uses of discreditable conduct evidence in accordance with s 34R.

Criminal law – Appeal against conviction – Application of proviso – Criminal Law Consolidation Act 1935 (SA), s 353(1) – Where majority of Full Court found miscarriage of justice occasioned by misdirection to jury – Where majority of Full Court divided as to whether misdirection occasioned substantial miscarriage of justice for purposes of applying proviso – Whether appeal could be dismissed pursuant to proviso.

Words and phrases – "discreditable conduct evidence", "error of law", "opinion of majority", "permissible and impermissible use", "proviso", "substantial miscarriage of justice", "sufficiency of direction". 

Criminal Law Consolidation Act 1935 (SA), ss 349, 353(1).
Evidence Act 1929 (SA), ss 34P, 34R.

  1. KIEFEL, BELL AND KEANE JJ. The appellant was charged with the offence of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act"), and with the offence of threaten to kill, contrary to s 19(1) of the CLC Act[1].  Following a trial by jury in the District Court of South Australia, the appellant was convicted of both offences.

    [1]The appellant was also charged with unlawful sexual intercourse, contrary to s 49(3) of the CLC Act, as an alternative to the count of rape. Because no verdict was taken on this alternative count, it is not discussed further.

  2. On appeal, the appellant contended that the trial judge's refusal to exclude a passage from his record of interview with the police, in which he admitted to possessing an amount of cannabis that had been found during a search of his home, was an error of law. It was further contended that the trial judge failed sufficiently to direct the jury as to the permissible and impermissible uses of this evidence, in accordance with the requirements of s 34R(1) of the Evidence Act 1929 (SA) ("the Evidence Act").

  3. The Full Court of the Supreme Court of South Australia (Kourakis CJ, Gray and Stanley JJ)[2] held unanimously that evidence of the appellant's possession of cannabis was admissible pursuant to s 34P of the Evidence Act[3].  That conclusion was not in dispute in this…

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AGLC
Perara-Cathcart v The Queen [2017] HCA 9
Case
[2017] HCA 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Criminal Appeal of South Australia concerning the conviction of the appellant for rape and threatening to kill. The appellant's appeal to the Court of Criminal Appeal had been dismissed by a majority, despite grounds alleging that the trial judge had erred in directing the jury regarding the permissible and impermissible uses of discreditable conduct evidence, specifically evidence of the appellant's admitted possession of cannabis.

The central legal issues before the High Court were whether the trial judge's directions adequately explained to the jury the permissible and impermissible uses of the discreditable conduct evidence, as required by section 34R of the *Evidence Act 1929* (SA). Additionally, the Court considered whether, if a miscarriage of justice was found due to a misdirection, the proviso under section 353(1) of the *Criminal Law Consolidation Act 1935* (SA) could be applied to dismiss the appeal, particularly in circumstances where the majority of the Full Court was divided on the application of that proviso.

The High Court reasoned that the argument regarding the jury's potential misuse of the discreditable conduct evidence was unrealistic. The Court found that the trial judge's directions, when viewed in context, were sufficient to guide the jury away from impermissible reasoning. The judge had explicitly warned the jury against concluding guilt based on the appellant's drug use or dealing, and had clarified the limited relevance of this evidence to the prosecution's case. The Court determined that the jury, properly directed, would not have been at risk of taking an illogical detour to infer guilt from the possession of cannabis.

Ultimately, the High Court dismissed the appeal. The Court found no error in the majority decision of the Court of Criminal Appeal, which had upheld the appellant's convictions.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Following a trial in the District Court of South Australia, the appellant was convicted of one count of rape[71] and one count of threaten to kill[72]. He appealed against the convictions to the Court of Criminal Appeal of the Supreme Court of South Australia on grounds including that the trial judge erred in directing the jury under s 34R(1) of the Evidence Act 1929 (SA) as to the permissible and impermissible uses of discreditable conduct evidence admitted under s 34P of the Evidence Act. The discreditable conduct evidence was that the appellant had admitted to possessing an amount of cannabis, less than one ounce, which the police found at his home some seven days after the alleged offending ("the cannabis evidence"). The appeal was dismissed by a majority of the Court of Criminal Appeal (Gray and Stanley JJ, Kourakis CJ dissenting). By grant of special leave, the appellant appeals to this Court. [71]Criminal Law Consolidation Act 1935 (SA), s 48.[72]Criminal Law Consolidation Act, s 19(1).The facts The Crown case at trial was that, in September 2013, the complainant ("K"), then aged 16 years, and her boyfriend ("J"), then aged 18 years, had been living together for about six weeks. Both of them had been using methylamphetamine; in K's case, at least once per week for about three and a half months. During September 2013, K, J and a female friend ("R"), then also aged 16 years, were together at a local shopping centre when they were approached by the appellant in the vicinity of a bus stop. At that time, the appellant was aged in his early thirties and was previously unknown to K, J or R. The Crown alleged that the appellant was a dealer in methylamphetamine and that he asked J whether he used methylamphetamine and showed him some of the drug in a container. It was further alleged that the appellant then suggested that they should try the methylamphetamine, and perhaps buy some, for which purpose they all agreed to go to K and J's house. Once there, they smoked methylamphetamine provided by the appellant and remained in each other's company that night. K gave evidence that during the evening she saw the appellant injecting R with methylamphetamine. The following day, the appellant, J and R left the house while K remained behind. The Crown alleged that, some time later, the appellant returned to the house alone and attempted to inject K with methylamphetamine, initially in her left arm and then in her right arm, but on each occasion without success. He then attempted to inject her right foot but that was also unsuccessful. Finally, he once more attempted to inject her right arm and that was successful. According to K, they later smoked some methylamphetamine in a spare bedroom. The appellant then touched her leg. K told him not to do so. He became aggressive and said that he would give her a large amount of methylamphetamine if she would have a shower with him. K walked out of the spare bedroom and went to the en suite bathroom adjoining her own bedroom. According to K, the appellant entered the bathroom and turned on the shower. K told the appellant that she would not shower with him. The appellant was said to have responded by putting one hand around her neck, the other down the back of her pants and inserting two fingers into her vagina. K testified that she "got free", left the en suite bathroom and returned to the other bathroom. K described the appellant as "ranting, yelling 'I'm going to kill you' or 'I know people who can kill you.'"

Evidence

Evidence Before The Court

Section 34P of the Evidence Act relevantly provides: "(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 … (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." Section 34R(1) of the Evidence Act provides: "If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used."The trial judge's directions to the jury The trial judge directed the jury on the topic of the appellant's use of, and dealing in, illicit drugs as follows:"There is no shortage of evidence in this case to suggest that [the appellant] was a drug user and some evidence, although contested, that he was a drug dealer. Those particular topics have a relevance on the evidence because they were part of the unfolding of the prosecution case, but I warn you against the misuse of that evidence. It would be quite wrong of you to say 'Well, [the appellant] is a drug dealer, he must be guilty of these offences and we will find him guilty' or 'he is guilty because he is the sort of bloke who would commit these offences and we will find him guilty'. That is a completely wrong way to approach the case. That topic has a particular relevance, it is intertwined with the events that occurred, but you must not reason in the way in which I have just suggested." Later in his summing‑up, the trial judge referred to the prosecution's contention as to "the core allegation" made in this case, and to the question which "arose on the evidence as to basically who had the drugs after their initial meeting at the bus stop at the Marion Shopping Centre." His Honour observed that the prosecution case was that "it makes sense for [the appellant] to have been the one that had the drugs". His Honour went on to refer to the prosecution's contention that the appellant's: "interview with the police just simply did not hang together. [The prosecutor] said that when viewed overall, it just simply did not make sense. He said that what really made sense, despite what [the appellant] might have said, was that if anyone was a drug provider, it was [the appellant]. He was much older than the other two and, indeed, [the prosecutor] remarked upon the fact that, at one stage, [the appellant] gave them money for breakfast, which is hardly suggestive that they were involved in drug dealing."

Decision

Reasons for decision

KIEFEL, BELL AND KEANE JJ GAGELER J NETTLE J (dissent) GORDON J
There is an air of unreality in the argument that the jury, who were directed that the issue for their determination was whether they accepted the account given by K and J as reliable, might have digressed in their deliberation upon this uncomplicated issue to use the evidence of the appellant's admitted possession of a small quantity of cannabis to conclude that he was a dealer in methylamphetamine. It is to do scant justice to the jury as "the constitutional tribunal for deciding issues of fact"[49] to suggest that the directions the jury had been given left them at risk of taking a detour from the simple and obvious path on which they had been set to reason that, because the appellant possessed a small quantity of cannabis, he was therefore more likely to be a dealer in methylamphetamine. The direct path of reasoning which was properly, and clearly, open to the jury avoided this detour into gratuitous illogicality.[49]Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16; MFA v The Queen (2002) 213 CLR 606 at 621 [48]; [2002] HCA 53; R v Baden‑Clay (2016) 90 ALJR 1013 at 1023‑1024 [65]; 334 ALR 234 at 246; [2016] HCA 35.Conclusion and orders The issue raised by the respondent's notice of contention must be decided against the appellant. The appeal should be dismissed. The individual conclusions of the three members of the Full Court of the Supreme Court of South Australia on the two issues on which they were divided and on the outcome of the appeal against conviction, together with the result at which the majority of the Full Court arrived in dismissing the appeal, can be depicted as follows: The argument for the appellant on the principal ground of the appeal to this Court is that the conclusions of the members of the Full Court on the two issues on which they were divided ought to have resulted in the ultimate question of whether the appeal should be allowed being answered "Yes". Where a majority of the Full Court concludes that the trial judge's direction to the jury was inadequate (whether as an error of law or as a miscarriage of justice), the appellant argues, s 349 operates on s 353(1) of the CLC Act to require that the appeal against conviction be allowed unless that majority also concludes that the proviso is applicable. That argument of statutory construction raises an important question about decision-making by a multi-member court. The institutional responsibility of a court is to produce an order that resolves the justiciable controversy before it. That is the court's "unique and essential function"[50]. In the performance of that function by a multi-member court, each member of the court has an individual duty to give effect to his or her own true view of the law and of the application of the law to the facts of the case[51]. [50]Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12.[51]Mason, "Reflections on the High Court: Its Judges and Judgments", (2013) 37 Australian Bar Review 102 at 110. The individual members of a multi-member court will sometimes disagree. Sometimes disagreements will be resolved by dialogue, one member ending up convinced by another to take a different view; sometimes not. Where disagreements are not resolved, the law supplies a decision-making rule which allows the court to produce the order that is necessary for its institutional duty to be fulfilled.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL, BELL AND KEANE JJ, GAGELER J, GORDON J

Full text does not contain this section.