R v Perara-Cathcart

Case [2015] SASCFC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PERARA-CATHCART

[2015] SASCFC 103

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)

30 July 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - EVIDENCE - CREDIBILITY - OTHER MATTERS

Appeal against conviction.  Appellant convicted by unanimous jury verdicts of rape and threatening to kill.  On the prosecution case, the appellant was a drug dealer.  He had approached the complainant, her boyfriend and a friend at a bus stop to sell them methylamphetamine.  They went to the complainant’s house and consumed methylamphetamine.  The next day, the complainant and the appellant again consumed methylamphetamine at the home of the complainant.  The appellant propositioned the complainant, who refused his advances and went to the bathroom.  The appellant became angry and followed the complainant to the bathroom, where he grabbed her by the throat, inserted his fingers into her vagina and threatened to kill her.  Some time later, the complainant’s boyfriend crashed a car of a friend of the appellant and had an altercation with the appellant.  The police were called and the rape was reported.  On the defence case, the appellant was not a drug dealer and had sought to purchase drugs from the complainant’s boyfriend, who was a drug dealer.  The allegations made against the appellant were an attempt to distract from the complainant’s boyfriend’s own criminal activity.  The trial Judge declined to exclude a passage from the appellant’s police interview in which he had admitted possessing cannabis at his home. 

Whether the Judge erred by refusing to exclude the evidence concerning the appellant’s possession of cannabis.  Whether the Judge’s directions concerning the permissible use of the evidence were inadequate.  Whether the Judge’s erred in his directions concerning lies.

Per Kourakis CJ (in dissent):

1. The evidence of the appellant’s drug possession was properly admissible having regard to the provisions of s34P of the Evidence Act 1929 (SA).

2. The Trial Judge failed to give any directions as to the proper use of the evidence of the appellant’s drug possession. The Judge was required by s34R of the Evidence Act 1929 to direct the jury that the only proper use of the evidence was in consideration of whether the prosecution had excluded the possibility that the defendant’s association with the victims.

3.       The appeal should be allowed and the conviction set aside. The matter should be remitted to the District Court for retrial.

Held per Gray J (dismissing the appeal):

1. The evidence of the appellant’s possession of cannabis was admissible under section 34P of the Evidence Act 1929.

2.       Considered in its entirety and in the context of the trial as a whole, the summing up would not have left the jury with any misunderstanding as to the purpose of the evidence of the appellant’s possession of cannabis.

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AGLC
R v Perara-Cathcart [2015] SASCFC 103
Case
[2015] SASCFC 103
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against conviction by the defendant, Pedro Perara-Cathcart, who had been found guilty by a jury in the District Court of rape and threatening to kill. The prosecution case alleged that the defendant, a drug dealer, had supplied methylamphetamine to the complainant and her boyfriend, Justin, and subsequently sexually assaulted the complainant and threatened to kill her. A central issue on appeal was the adequacy of the trial judge's directions to the jury regarding the use of evidence concerning the defendant's drug use.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge's directions concerning the evidence of the defendant's drug use adequately complied with section 34R of the Evidence Act, which mandates that a judge must identify and explain the purpose for which evidence admitted under section 34P may or may not be used. The defendant contended that the judge's directions were vague and failed to sufficiently explain the permissible use of this evidence, relying on previous authorities that emphasised the need for clear and specific directions.

The Court found that the trial judge's directions, while warning the jury against impermissible propensity reasoning, were inadequate in identifying and explaining the specific permissible purpose for which the evidence of drug use could be considered. Section 34R obliged the judge to direct the jury that the only proper use of this evidence was in considering whether the prosecution had excluded the possibility that the defendant's association with Justin and another individual was solely for the purpose of procuring cannabis. While this could indirectly support a finding that the defendant supplied methylamphetamine, such a finding must be based on direct testimony, not propensity reasoning.

Consequently, the Full Court concluded that the appellant had demonstrated an error of law in the judge's failure to provide directions in accordance with section 34R of the Evidence Act. As the Court was not in a position to evaluate the credibility of key witnesses on the face of the transcript, the proviso to the appeal could not be applied. The appeal was allowed, the convictions were set aside, and the matter was remitted to the District Court for retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 34R obliges a judge when admitting evidence under section 34P to identify and explain the purpose for which the evidence may or may not be used. On the appeal, the defendant contended that the Judge’s directions were wholly inadequate. Those directions were as follows:I need to give you some warnings, members of the jury, there is a number of short separate topics under topic No.16. There are a number of warnings I need to give you arising from the evidence. Although I propose to deal with them under one heading, they are separate warnings on different but sometimes interrelated topics.The first is drug use by the accused. There is no shortage of evidence in this case to suggest that the accused 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 accused 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 particular relevance, it is intertwined with the events that occurred, but you must not reason in the way in which I have just suggested. [Emphasis added.] The defendant complained that the directions, while warning against a general impermissible use, were vague as to permissible use. Attention was drawn to the observations of Doyle CJ in Nieterink[6] and Peek J in Maiolo (No2),[7] where their Honours emphasised the need for adequate directions to identify and explain the purpose for which the evidence may be used. The question that arises is whether the Judge’s directions in the present proceeding adequately identified and explained the relevant purpose. [6] R v Nieterink (1999) 76 SASR 56.[7] R v Maiolo (No2) (2013) 117 SASR 1. As can be seen from the earlier extracted passage from the Judge’s summing up, the Judge specifically identified the relevant enquiry as concerning the use of drugs by the defendant. As the Judge pointed out, there was no shortage of evidence before the jury to suggest that the defendant was a drug user and some evidence that he was a drug dealer. The Judge explained to the jury that this evidence provided the context in which the alleged offending occurred. As the Judge put it, the topic of the defendant’s drug use was part of the unfolding prosecution case. Later in the summing up, the Judge came to address the use of drugs by the defendant, the complainant, Justin and Ruth. The Judge reminded the jury of the prosecution case concerning the conduct of the defendant in the provision of drugs, the smoking of drugs and the injection of drugs. He reminded the jury of the prosecution case of how the defendant placed pressure on the complainant. In these later passages of the summing up, the Judge detailed the unfolding of the prosecution case that he had earlier referred to.

Decision

Reasons for decision

STANLEY J (dissent)
The Judge was bound by s 34R of the Evidence Act to direct the jury that the only proper use of the evidence was in its consideration of whether the prosecution had excluded the possibility that the defendant’s association with K and J was for the limited purpose of procuring cannabis from J. True it is that on the exclusion of that possibility a finding could more easily be made that the defendant supplied methylamphetamine to K and J but that finding would be based on an acceptance of the direct testimony of K and J and not on propensity reasoning.Conclusion The appellant has demonstrated an error of law in the Judge’s failure to give directions in accordance with s 34R of the Evidence Act. The prosecution case depends on the acceptance of the testimony of K and J. This Court is not in a position to evaluate their credibility on the face of the transcript. The proviso cannot be applied. I would allow the appeal, set aside the convictions and remit the matter to the District Court for retrial. This is an appeal against conviction. The defendant and appellant, Pedro Perara-Cathcart, was convicted by jury verdict following a trial in the District Court of the offences of rape[4] and threaten to kill.[5] Both verdicts were unanimous. [4] Criminal Law Consolidation Act 1935 (SA) section 48.[5] Criminal Law Consolidation Act 1935 (SA) section 19(1).Prosecution Case In September 2013, the complainant, then aged 16 years, and her boyfriend, Justin, then aged 18 years, had been living together for about six weeks. Both had been using methylamphetamine. The complainant said that she had been smoking methylamphetamine at least once per week for about three and a half months. During September, the complainant, Justin and a friend, Ruth, then aged 16 years, were at the Marion Shopping Centre. They were approached by the defendant in the vicinity of the bus stop. At that time, the defendant was aged in his early thirties. He was unknown to the complainant, Justin or Ruth. It was the prosecution case that the defendant was a drug dealer. He approached the complainant, Justin and Ruth and asked Justin whether he used methylamphetamine. At the same time, he showed him some methylamphetamine in a container. They all agreed to go to the home of the complainant and Justin. The defendant suggested that they try the methylamphetamine and perhaps buy some. At the home, they smoked methylamphetamine provided by the defendant. They remained in each other’s company that night. During the evening, the complainant saw the defendant injecting Ruth. The following day, the defendant, Justin and Ruth left the home. Sometime later, the defendant returned. The defendant then attempted to inject the complainant with methylamphetamine, initially in her left arm and then in her right arm. These attempts were unsuccessful. He then attempted to inject her right foot. This too was unsuccessful. He again attempted to inject her right arm and, on that occasion, was successful. Later they smoked some methylamphetamine in a spare bedroom. The defendant then touched the complainant’s legs and propositioned her. She refused and the defendant became angry. The complainant then went to the bathroom. The defendant also went to the bathroom. He placed one arm around the complainant’s neck. He placed his other hand inside her pants and inserted his fingers into her vagina. This incident was the subject of the charge of rape. Thereafter, the defendant threatened to kill the complainant. This was the subject of the charge of threaten to kill.

Ratio Decidendi

Legal Principle Established

Established by:

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