Perara-Cathcart v The Queen - [2016] HCATrans 269

[2016] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A39 of 2016

B e t w e e n -
PEDRO PERARA‑CATHCART
Appellant
and
THE QUEEN
Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 NOVEMBER 2016, AT 10.04 AM

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR S. McDONALD, for the appellant. (instructed by Ben Sale)

MR I.D. PRESS, SC: May it please the Court, I appear with my learned friend, MR D.P. EVANS, for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL J: Thank you. Yes, Mrs Shaw.

MS SHAW: If the Court pleases, we have handed to the Court our three‑page outline of propositions.

KIEFEL J: Yes, Mrs Shaw.

MS SHAW: If the Court pleases, the first contention of the appellant is that on the findings which each of their Honours in the Full Court below made, section 353(1) of the Criminal Law Consolidation Act 1935 (SA), that is, the South Australian version of the common form criminal appeal provision, required the Full Court to make orders allowing the appeal to the Full Court.

Our primary position is that this Court should simply make the orders which the Full Court on its own findings ought to have made. The second issue that arises is whether, as a matter of substance, the Full Court ought to have found that there was a wrong decision on any question of law, in that the trial judge failed to direct the jury in accordance with the requirements of section 34R(1) of the Evidence Act 1936 (SA).

In respect of that issue, we respectfully agree with his Honour the Chief Justice Kourakis below, that there was the error which he identified but we also submit that there were other deficiencies in the direction that was given by the trial judge such that it fell short of what section 34R(1) requires. The third and final issue is whether, as a matter of substance, the common form criminal appeal provision should be applied. Obviously, the second and third issues are linked because the application of the proviso may depend on the respect in which it is held that the trial judge erred in his directions.

I propose to address the issue concerning the construction of section 353(1) of the Criminal Law Consolidation Act first and then to address the remaining issues concerning the substance of what section 34R(1) of the Evidence Act required in this case and, finally, the question of whether the proviso could properly be applied.

Our first contention is that, given the conclusions which each of the judges in the Full Court reached, section 353(1) required the Full Court to make an order allowing the appeal – that is, on the Full Court’s own findings, the Full Court made the wrong order.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perara-Cathcart v The Queen

Details

AGLC: Perara-Cathcart v The Queen [2016] HCATrans 269
Case: [2016] HCATrans 269
Decision Date

CaseChat Overview and Summary

The applicant, Perara-Cathcart, appealed to the High Court of Australia against a decision of the Court of Criminal Appeal of New South Wales, which had dismissed his appeal against his conviction for murder. The central dispute concerned the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the admission of this evidence, along with other alleged irregularities, had resulted in a miscarriage of justice. Specifically, the court considered whether the evidence of prior convictions was unfairly prejudicial and whether the summing up by the trial judge adequately directed the jury on the limited use they could make of such evidence.

The High Court, in a joint judgment, found that the admission of the applicant's prior convictions was unfairly prejudicial and that the trial judge's directions to the jury were insufficient to mitigate this prejudice. Their Honours reasoned that the evidence of prior convictions was not sufficiently probative of any issue in the trial and carried a significant risk that the jury would use it as evidence of the applicant's bad character, rather than for the limited purpose for which it was admitted. Consequently, the court concluded that there had been a miscarriage of justice.

The High Court ordered that the appeal be allowed, the conviction be quashed, and that a retrial be ordered.

Orders