R v Perara-Cathcart

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.
3.       The Judge’s directions concerning lies were balanced and appropriate having regard to the evidence and the addresses of counsel.
Held per Stanley J (dismissing the appeal):
1. The evidence of the appellant’s drug use was properly admissible having regard to the provisions of s34P of the Evidence Act 1929 (SA).
2.       While there was a failure to properly direct the jury as to the permissible use of the evidence of the appellant possessing and trafficking cannabis, the jury would not have been under any misunderstanding as to the purpose of that evidence. The absence of the required direction could not possibly have resulted in a substantial miscarriage of justice.
3.       I reject the appeal ground complaining of the trial judge’s lies direction.
Criminal Law Consolidation Act 1935 (SA) s 19(1), s 48 and s 353(1); Evidence Act 1929 (SA) s 34P and s 34R, referred to.
R v Nieterink (1999) 76 SASR 56; R v Maiolo (No2) (2013) 117 SASR 1; Palmer v The Queen (1998) 193 CLR 1; Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen (2008) 236 CLR 358; Baini v The Queen (2012) 246 CLR 469; Gassy v The Queen (2008) 236 CLR 293, considered.

R v PERARA-CATHCART
[2015] SASCFC 103
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: I gratefully adopt the summary of the evidence appearing in the reasons of Gray J. I regret that I have reached a different conclusion to his Honour. I would allow the appeal and remit the matter to the District Court for trial.
It is necessary to set out the forensic context in which the objection to the evidence of the defendant’s possession of cannabis was taken. The defendant was charged with raping and threatening to kill the complainant, K, in early September 2013. The defendant did not challenge the admissibility of the testimony of K, and her boyfriend, J, that:
·he was a trafficker of methylamphetamine
·he had injected the complainant, a sixteen year old child, and her friend R, with methylamphetamine, and
·he had admitted using violence against others.
That evidence was not admitted, and could not sensibly be used, to show a propensity to commit the charged offences of rape and threaten life. Rather, the evidence was admitted to show:
·how the defendant, who was previously unknown to the complainant, came to be in her home;
·why the defendant was allowed the close contact with the complainant which gave him the opportunity to commit the alleged rape;
·why the complainant and J continued to allow the defendant to access to their home after he had raped the complainant;
·why neither the complainant nor J called the police shortly after the commission of the rape.
The defendant was right not to object to that evidence. It was strongly probative in making sense of K’s narrative. K’s testimony would have appeared bizarre in the absence of the explanation that the defendant was providing her with methylamphetamine. The Judge provided a strong warning against reasoning impermissibly from discreditable conduct to the commission of the offences of rape and threaten life. I acknowledge that the Judge did not identify the particular uses of the evidence in the way in which I have articulated them. However, those uses fell within the expressions “the unfolding of the prosecution case” and “intertwined with the events that occurred”. Once the impermissible propensity use was excluded, the evidence would naturally be used to explain why the defendant was given the opportunity to commit the alleged offences. I am satisfied that the Judge’s abbreviated comments have not resulted in a substantial miscarriage of justice in the admission of that evidence.
When interviewed by the police on 15 September 2013, the defendant denied any sexual encounter with the complainant and he suggested various motives for the false allegations. The defendant said that he met J about a week earlier explaining:
Basically I wanted to buy a bag of dope to be honest with you and I asked him if he sells dope, coz he actu, like and he, he goes to me no I haven’t got dope but I got E’s. Then I no I don’t want no, not E’s fucking, E’s yeah, E’s the one’s that look like tablets isn’t it.
It was part of the defendant’s case that it was J who was the drug dealer and that J had supplied him with cannabis.
However, in his record of interview, the defendant admitted possession of a quarter of an ounce of cannabis which police had found on searching his house. He told police that he used cannabis for pain relief. He admitted the possession of two smaller quantities of cannabis leaf.
The defence case that J, and not the defendant, was dealing in drugs was pressed in cross-examination and in submissions. K and J both denied that J was selling drugs. K also gave the following evidence-in-chief:
QWas the topic of dope or marijuana mentioned.
AYep.
QWho by.
APedro.
QWhat was said.
AHe said he needed to take some dope to someone.
QWere you present when that ever happened.
ANo, it didn’t happen.
The admissibility of the evidence of the cannabis found in the defendant’s home and his admission to its possession is not relevant to the commission of the offences against K in the same way as K’s and J’s testimony of the defendant’s trafficking of drugs to them is. Its relevance, if any, is on the secondary factual dispute as to whether the defendant approached J to purchase cannabis from him and not to sell him methylamphetamine.
The relevance of the defendant’s possession of a substantial amount of cannabis, which he had not sourced from J, is that it renders his claim that he approached J to obtain cannabis less probable than it might otherwise have appeared to be. The defendant’s possession of cannabis is not deprived of that probative weight merely because there may be some explanations for it which are consistent with his claim. The evidence of the defendant’s possession of cannabis was not, in itself, probative that he trafficked methylamphetmine to K and J. It could not be reasoned soundly, if at all, that a person who possesses cannabis is more likely to trade in methylamphetamine than one who does not. However, by pursuing at trial a defence based on the alternative explanation for being in J’s and K’s company, namely his attempt to source cannabis, the defendant made his independent possession of cannabis a real forensic issue.
In examination-in-chief, J made no mention of cannabis. He was cross-examined to reveal that on 15 September 2013, the police had searched his residence and found “hydroponic equipment”. It was put to J that it was the defendant who had attempted to purchase cannabis from him:
QOn that day that you were in the Marion Shopping Centre, is it the case that Pedro approached you and asked if he could buy some cannabis from you.
AI’m not sure if he asked for weed. I don’t remember the conversation exactly. It was a long time ago. I haven’t thought about it. I don’t even remember what I had for dinner last night, you know. I’ve got a bad memory, but I remember.
QIs it the case that in reply you said to Pedro that you didn’t have any cannabis but you had some ecstasy that you could sell him.
AI might have had some pills on me.
In his closing submissions the prosecutor referred to the evidence of the defendant’s possession of cannabis to criticise his statement in the police record of interview that he had approached J to procure some cannabis. The prosecutor submitted:
Going to their place to buy dope. We know he’s got it at home, we know he’s got plenty.
…
Yet, defence would have it that he, [J], is the dealer. You will recall [K] explaining that at one stage he, the accused, was going to deliver some dope to somewhere. You have that as well. On the prosecution case it is quite plain who is the dealer here and who is using these kids to his advantage.
Analysis
The test for the admission of the defendant’s discreditable conduct in possessing cannabis is whether its probative use substantially outweighed its prejudicial effect.[1] In the generality of cases, the prejudicial effect of possession of cannabis is relatively low. In the circumstances of this case, measured against the drug trafficking allegations made in the testimony of K and J, it was insignificant. That prejudicial effect was substantially outweighed by its probative use on the forensic question of the true reason for the defendant's initial contact with J and K.
[1] Section 34P(2)(a) Evidence Act 1929 (SA).
The impermissible use of the possession of cannabis in this case, to reason that the defendant is more likely to be a dealer in methylamphetamine because of his possession of cannabis, can be kept distinct from the question whether it is likely that the defendant approached J to buy cannabis.[2]
[2] Section 34P(3) Evidence Act 1929 (SA).
The admissibility of the evidence of the defendant’s possession of cannabis is a question of law. Whether or not the Judge’s treatment of that question was in accordance with s 34P of the Evidence Act 1929 (SA) (the Evidence Act), is not to the point because I would hold that the impugned evidence is, as a matter of law, admissible.
However, I have reached the conclusion that the trial miscarried because of the Judge’s failure to properly direct the jury on this issue.[3]
[3] Section 34R, Evidence Act 1929 (SA).
The Judge failed to give any directions on the proper use of the evidence of the defendant’s possession of cannabis. Nor did he give directions on K’s testimony that the defendant had spoken to her about delivering cannabis to others. The Judge did not direct the jury that the evidence of the possession of, or even trading in, cannabis could not be used as a basis from which to reason that the defendant trafficked or was more likely to trade in methylamphetamine. The general direction against reasoning that the defendant was guilty of the offences charged because he was a drug trafficker was insufficient for these purposes.
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.
GRAY J.
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.
When Justin returned home later that day, the complainant made a complaint to him that she had been raped. The complainant was frightened of the defendant. Justin gave evidence of the complaint and also his fear of the defendant.
The defendant returned to the home of the complainant and Justin several times during the following week. Drugs were again consumed. The complainant and Justin saw the defendant for the last time about a week after they first met.
An incident occurred when Justin crashed a motor vehicle belonging to a friend of the defendant. This incident caused the defendant to threaten Justin. There was a disturbance and this led to the police attending at the home. An attending police officer described both Justin and the complainant as being nervous and scared. The complainant informed the police officer that the defendant had raped her.
On the prosecution case, the dealing in drugs between the defendant and the complainant, Justin and Ruth provided the context in which both offences occurred. The defendant supplied the complainant, Justin and Ruth with drugs during the relevant period. Justin had asked the defendant to provide drugs, which he did on credit. The defendant had threatened the complainant and Justin and suggested he had been violent to others and had stabbed someone in the city. The defendant had influence over Justin, the complainant and Ruth and all were frightened of him. By the use of that influence, the defendant encouraged the use of drugs, in particular by injection. These matters provide the context in which the defendant threatened the complainant immediately prior to raping her, saying “you don’t get something for nothing” with reference to the drugs he had supplied.
The Defence Case
It was the defence case that the defendant was not a drug dealer. He was looking to purchase some marijuana for his personal use. Justin was a drug dealer wanting to sell drugs to the defendant. The defendant went with the others to the home of Justin and the complainant for the purpose of purchasing drugs from Justin.
On the defence case, the allegations of rape and threatening to kill were entirely false. The allegations were made up as a result of a fear that the police might consider that Justin was a drug dealer. The allegations were made in an attempt to distract attention from: the complainant and Justin’s drug use; the fact that Justin was trafficking in drugs; and the fact that Justin was not licensed to drive at the time of the motor vehicle accident. Finally, it was said that the false allegations were made in an attempt by the complainant and Justin to “get out of the mess”.

The defendant did not give evidence and called no other evidence.
The Appeal
Discreditable Conduct
On the appeal, the defendant complained of the Judge’s refusal to exclude a passage from the defendant’s police interview in which the defendant admitted possessing amounts of cannabis that had been found at his home. It was further contended that the Judge failed to properly direct the jury in respect of this evidence, once admitted.
The Judge considered the admissibility of the evidence during a voire dire hearing. At that hearing, the prosecution contended that a relevant factual issue in the trial was whether the defendant was a drug dealer who approached the complainant and Justin. The prosecution drew attention to the complainant’s declaration in which she asserted that the defendant said that he was to deliver marijuana to another person. Evidence on this topic was also given by Justin.
At the voire dire, the defence contended that the evidence was not relevant to the charges on the information and, in any event, the evidence was highly prejudicial, of little or no probative value and should be excluded.
Following the voire dire, the Judge made the following ruling at the outset of the trial:
As far as the record of interview is concerned, in my view the objective portion may remain. There is some prejudice that attaches to them but in my view that can be accommodated with a warning. They are relevant to certain portions of the complaint and, I think, [Justin’s] account, and as such tend to confirm a portion of what he said. For that reason I admit them.
On the hearing of the appeal, the defendant maintained that the evidence was not relevant to the charges. It was further contended that the evidence given in the trial did not accord with the declarations identified in the voire dire and that, as a consequence, the Judge should have given particular directions to the jury that the evidence should be given no weight.
In my view, the evidence of the statements made by the defendant concerning the possession of quantities of cannabis at his home was admissible. At the time of the voire dire, the Judge had to assess admissibility according to the usual rule of testing the evidence at the highest. I do not consider that the evidence led in the trial rendered the impugned evidence of no relevance or of little or no weight. The fact that the police discovered quantities of cannabis at the defendant’s home, together with other evidence in the trial about conversations concerning drugs and the supply of drugs by the defendant, if accepted by the jury, would allow the conclusion that the defendant was a dealer in drugs.
The impugned evidence was evidence of discreditable conduct on the part of the defendant and accordingly, sections 34P and 34R of the Evidence Act 1929 (SA) arose for consideration. Those sections provide as follows:
34P‑Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).
...
34R—Trial directions
(1)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.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
Section 34P addresses the admissibility of evidence of discreditable conduct. The evidence to be led sought to establish that the defendant was a drug dealer. In the terms of section 34P(1), it was evidence tending to suggest that the defendant had engaged in discreditable conduct other than conduct constituting the offences charged.
In these circumstances, the Judge was obliged when considering the admissibility of the evidence to address section 34P(2)(a). In particular, the Judge could only admit the evidence if satisfied that the probative value of the evidence substantially outweighed any prejudicial effect that the evidence may have on the defendant. The Judge’s ex tempore remarks make no express reference to the terms of the subsection.
The Judge was also required to address section 34P(2)(b) and determine whether the evidence had strong probative value having regard to the particular issues arising at trial. The ex tempore remarks of the Judge make no express reference to the terms of this subsection.
Section 34P(3) arose for consideration. The Judge was required to consider whether the permissible use could 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. The Judge did not expressly address the requirements of this sub-section.
In my view, when regard is had to the terms of section 34P, it was appropriate for the evidence to be admitted in the trial. As discussed above, the charged offending occurred in the context of drug dealings between the defendant, complainant, Justin and Ruth. The statements made by the defendant to police formed an item of circumstantial evidence, which, when considered with other items of circumstantial evidence, would allow the conclusion that the defendant was a drug dealer or, at the very least, a user of drugs. This body of evidence then provided support for the prosecution case and, in particular, the circumstances in which the offending was said to have occurred. Without this evidence, alleged statements by the defendant at the time of the alleged rape could not have been considered in their proper context. It was important evidence to be before the jury to assist in the resolution of facts in issue in the trial.
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.
It is important that the summing up be considered in its entirety. It is also to be understood that the jury had received the benefit of addresses from both the prosecution and defence before hearing the summing up. I do not consider that the jury would have been under any misunderstanding as to the purpose of the evidence of discreditable conduct. In the circumstances of this trial, it was an item of circumstantial evidence to be considered by the jury with other evidence from which the jury would be entitled to reach the conclusion that the defendant was a dealer in drugs and made use of his supply of drugs to influence and put pressure on the complainant. I do not consider that in the circumstances of the trial there was any inadequacy in the directions of the Judge in explaining and identifying the purpose of the impugned evidence.
Lies
The remaining complaint related to the Judge’s direction concerning motive to lie. It is impermissible for an accused to be questioned about whether he could suggest a motive for a person to lie. The prosecution should not ask rhetorical questions in like terms during an address to the jury.[8]
[8] Palmer v The Queen (1998) 193 CLR 1.
In the present proceeding, defence counsel suggested in cross-examination that the complainant and Justin had both lied. Counsel put to both that they had made the whole thing up and suggested a number of possible reasons for them to do so.
The Judge, in the course of his summing up, directed the jury on the topic of lies in the following terms:
You will remember that I said, I think more than once during the course of my summing up, that there is no obligation on the accused to prove anything. I also touched on the response by [Justin] and [the complainant] when it was put to them that they had made the whole thing up, and their responses were quite expansive and they said ‘Why would I make it up?’, and I will read out a bit from [the complainant’s] evidence in a moment about that. But the important point I want to make is that does not throw some onus back onto the accused to prove that they were lying, or to provide some reason why they were lying.
‘Q.Is it the case that you have made this story up about Pedro raping you to distract from your drug use the night before, is that the case.
A.No, it’s not the case. I wouldn’t make up such a story. I don’t - that’s - why would I make up such a story? Why would I go through all of this over my drug use, my past drug use?
Q.I suggest to you that you have made up this story about Pedro raping you to distract the police from your boyfriend crashing the car.
A.No, that - once again, I wouldn’t - that’s - why would I make up such a thing? That’s the most - I don’t even think anyone - that’s - no, I wouldn’t make up such a story like that ever. That’s silly. That’s stupid.
Q.It’s not the case you have made up the story about Pedro raping you to distract from the fact that [Justin] was selling drugs.
A.No, because [Justin] wasn’t selling drugs. Pedro was selling drugs to probably multiple people, including Justin, as far as I know’.
So members of the jury, that was her response. I will just try to pick up [Justin’s] if I can, for the moment, but the important point to make, ladies and gentlemen, is that there is no onus on the accused to prove they were lying or to provide some reason why they were lying. The obligation rests from beginning to end on the prosecution, and nothing on the accused. Right at the very end of [Justin’s] evidence at p.190:
‘Q.What I’m suggesting is you and [the complainant] have concocted this story to take the attention away from the two of you, is that right.
A.    No, you’re wrong’.
A few questions earlier, p.189:
‘Q.I am suggesting you have made up this story about Pedro and to take the police’s attention away from you, is that right.
A.    No.
Q.Is it the case that after you were arrested, you have sat down with [the complainant] and put your heads together to make up a story about Pedro raping her, is that right.
A.    No, it’s not’.
So that was Mr Jolly quite properly putting to the witnesses that they had made it up. They are the responses, but do not at any time think that it rests on the accused to prove anything.
[Emphasis added.]
As Kirby J observed in Palmer, where an accused proposes a witness has a motive to lie, it remains for the prosecution to prove that the witness was truthful:[9]
Where the accused suggests that a complainant has a motive to concoct, falsify or distort the evidence of an accusation, it was accepted that it was then necessarily open to the prosecution to test the accused about the suggestion. Any such scrutiny must be conducted within the limits of relevant and admissible evidence. An individual cannot be asked to give evidence on the motivation of another, as such, because any such evidence could only be speculative and a matter of opinion upon which the witness could have no expertise.
It was also common ground that, where the accused puts forward, by evidence or submission, a proposition that a witness vital to the Crown case has a particular motive to lie, the judge should direct the jury that, even if they were to reject such motive, that would not mean that the impugned witness was necessarily telling the truth. It would remain for the prosecution to satisfy them that the witness was truthful. Logically this must be so because the accused might have insufficient materials to prove the false motives of an accuser or may be completely ignorant of, or mistaken about, the true motive which lies behind the falsehood.
[Citations omitted.]
[9] Palmer v The Queen (1998) 193 CLR 1, 38-9.
The Judge left the jury in no doubt that it was for the prosecution to prove the truthfulness and reliability of the prosecution evidence beyond reasonable doubt. In my view, the trial Judge’s direction as extracted above was balanced and appropriate having regard to the evidence and the addresses of counsel. To have further expanded upon the question of lies would otherwise arguably confuse the issue and potentially the jury. The verdict was not jeopardised by the trial Judge’s charge to the jury.
Conclusion
I would dismiss the appeal.
STANLEY J. I have had the advantage of reading the reasons of the Chief Justice and Gray J.
For the reasons given by Gray J I would reject the appeal ground complaining of the trial judge’s lies direction. Further, for the reasons given by Gray J, I consider that the evidence of the appellant’s drug use was properly admissible having regard to the provisions of s 34P of the Evidence Act 1929 (SA) (the Act). However, I consider that the direction given by the trial judge on this topic did not satisfy the requirements of s 34R of the Act.
The direction given by the trial judge is set out in the reasons of Gray J. I need not repeat it. Pursuant to s 34R(1), the trial judge was obliged to identify and explain the purpose for which the evidence admitted under s 34P may, and may not, be used. In my view, the direction given by the trial judge adequately explained the impermissible use of the evidence of the appellant’s drug use. The direction made clear that the jury could not use the evidence of the appellant’s drug use for propensity reasoning. However, I am not persuaded that the direction adequately explains the permissible use of that evidence. In R v Nieterink[10] and in R v Maiolo (No 2)[11] this Court has emphasised the need for adequate directions to identify and explain the purpose for which evidence of discreditable conduct may be used. The extent of the direction given in this case is confined to telling the jury that the evidence of the appellant’s drug use is relevant as it is intertwined with the events that occurred and was part of the unfolding of the prosecution case. In my view, that direction did not adequately explain the purpose for which that evidence may have been used by the jury. The judge was required to direct the jury that the evidence explained the circumstances by which the appellant met K and J and further was evidence they could use to find he was providing drugs to K and using the provision of those drugs to pressure her for sex.
[10] [1999] SASC 560, (1999) 76 SASR 56.
[11] [2013] SASCFC 36, (2013) 117 SASR 1.
This constitutes an error of law. Accordingly there has been a miscarriage of justice. However, not every error of law warrants setting aside a conviction.[12]
[12] Festa v The Queen [2001] HCA 72 at [224], (2001) 208 CLR 593 at 660.
In Weiss v The Queen,[13] the High Court held that whether or not a demonstrated miscarriage of justice vitiates the conviction and results in an order for a retrial depends on the application of the proviso and whether there has been a substantial miscarriage of justice.[14]
The proviso
[13] [2005] HCA 81, (2005) 224 CLR 300.
[14] [2005] HCA 81 at [18], (2005) 224 CLR 300 at 308.
The proviso is found in s 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:
(1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

In Weiss, the High Court discussed the circumstances which allows a court to dismiss an appeal even when an error has been demonstrated. The Court said:[15]
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
[Footnotes omitted].
[15] [2005] HCA 81 at [41], (2005) 224 CLR 300 at 316.
The Court also emphasised particular matters which govern the application of the proviso:[16]
There are, however, some matters to which particular attention should be drawn. First, the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt.
Next, the permissive language of the proviso (the Court … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal …) is important. So, too, is the way in which the condition for the exercise of that power is expressed (if it considers that no substantial miscarriage of justice has actually occurred). No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.
Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
[Footnotes omitted].
[16] [2005] HCA 81 at [43]-[45], (2005) 224 CLR 300 at 317.
In Cesan v The Queen,[17] French CJ observed that Weiss is authority for the proposition that the question whether an appellant may have lost a fair chance of acquittal is one to be considered under the proviso.[18] He said:[19]
Weiss involved the admission of irrelevant but prejudicial evidence. In that context the Court in Weiss defined the task of criminal appeal courts applying the proviso. The task so defined requires their consideration of the whole of the record to reach an independent conclusion on whether the appellant was guilty beyond reasonable doubt of the offence on which the impugned verdict has been reached. There may be cases, nevertheless, in which there is a process failure of such significance that, whatever the apparent weight of the evidence against the accused person, it cannot be said that there has not been a substantial miscarriage of justice. That may be because the process failure has deprived the appeal court of the capacity to assess whether the appellant may have lost a fair chance of an acquittal. That proposition is supported by dicta in Simic v The Queen.
[Footnote omitted].
[17] [2008] HCA 52, (2008) 236 CLR 358.
[18] [2008] HCA 52 at [79], (2008) 236 CLR 358 at 383.
[19] [2008] HCA 52 at [81], (2008) 236 CLR 358 at 383-384.
In Cesan, Hayne, Crennan and Kiefel JJ[20] also considered Weiss. They said:[21]
In Weiss v The Queen, the Court said that it was neither right nor useful to attempt to lay down absolute rules or singular tests to govern the application of the proviso beyond three fundamental propositions. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, that task is an objective task which is not materially different from other appellate tasks. Thirdly, the standard of proof is the criminal standard. The Court rejected the use of expressions, like loss of a real chance of acquittal, as substitutes for the statutory language. Rather, the Court held that no single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given.
The Court further held in Weiss that a necessary, but not always sufficient, step to the application of the proviso is that the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty. But the conclusion that guilt of the accused was proved to that standard does not, in every case, suffice to show that there was no substantial miscarriage of justice.
[Footnotes omitted].
They further said:[22]
In Weiss, the Court pointed out that, in considering the application of the proviso, an appellate court’s task “must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict” (emphasis in original). But in undertaking that task an appellate court must be conscious of the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record of the trial.
In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence.
[Footnotes omitted].
[20] Heydon J agreeing.
[21] [2008] HCA 52 at [123]-[124], (2008) 236 CLR 358 at 393-394.
[22] [2008] HCA 52 at [128]-[129], (2008) 236 CLR 358 at 395.
In Baini v The Queen[23] Gageler J, in dissent as to the outcome of the appeal, which concerned the application of s 274 of the Criminal Procedure Act 2009 (Vic), considered the operation of the common form criminal appeal statute. He discussed the approach taken to the application of the proviso before Weiss and said:[24]
[23] [2012] HCA 59, (2012) 246 CLR 469.
[24] [2012] HCA 59 at [51], [54], [56], (2012) 246 CLR 469 at 487-488, 489-490, 491.
In 2005, Weiss v The Queen overturned that understanding of the essential condition of the respondent persuading the court of criminal appeal that “no substantial miscarriage of justice has actually occurred”. Weiss was a case in which consideration of the proviso arose because the para (b) criterion had been made out. As reformulated, the essential condition became that the court of criminal appeal itself be persuaded “that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”. The reasons given in Weiss for that reformulation included: that such entitlement as an accused person may have to the verdict of a jury is necessarily qualified by the possibility of appellate intervention so that the real question is ultimately whether appellate intervention is justified by the statutory language; that “any departure from trial according to law, regardless of the nature or importance of that departure” (emphasis in original) is necessarily a “miscarriage of justice”; and that important to the construction and application of the proviso are both its “permissive language” and “the way in which the condition for the exercise of [the] power is expressed (if it considers that no substantial miscarriage of justice has actually occurred)” (emphasis in original)
...
The same approach was adopted by courts of criminal appeal in Australia. The words “on any ground” in para (c) of the common form criminal appeal statute “do not postulate the demonstration of error” but rather “simply require that ‘something occurred or did not occur’ in the trial”. The thing that occurred or did not occur in the trial may be an “irregularity” falling short of a failure to observe some condition essential to a satisfactory trial – such as a misdirection or non-direction of fact or what is shown to have been at the time of exercise or in the light of developments at the trial a wrong but legally available exercise of judicial discretion resulting in the admission of evidence prejudicial to the appellant. In those circumstances, it has been accepted that the criterion in para (c) will be made out only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted. Before Weiss, it also appears to have been accepted that, by establishing that the irregularity might have affected the conviction that actually occurred, the appellant would succeed not only in making out the criterion in para (c) but also in negating the application of the proviso. In Simic v The Queen, for example, the irregularity that occurred in the trial was described as “a misstatement of an important matter of fact”. After making clear that the onus of establishing a miscarriage of justice lay with the appellant, the Court said:
“Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.”
...
The reasoning of the plurality in Cesan v The Queen in substance adopted the same qualified approach. That reasoning illustrates that, after Weiss, the application of the criterion in para (c) of the common form criminal appeal statute where there is an irregularity falling short of a failure to observe some condition essential to a satisfactory trial still requires the appellant to establish that the irregularity might have affected the result. However, the same reasoning also illustrates that, after Weiss, the appellant will not thereby necessarily succeed in negating the application of the proviso. It remains open to the court of criminal appeal to apply the proviso to uphold the conviction if the court can nevertheless be persuaded to conclude that the evidence properly admitted at trial proved the appellant’s guilt beyond reasonable doubt.
[Footnotes omitted].
Applying the proviso
In this matter, in considering the application of the proviso, I am satisfied that no substantial miscarriage of justice has actually occurred.
In this case the absence of the requisite directions would have had no significance in determining the jury’s verdict. In my view, had the trial judge given a direction that the only proper use of the evidence of the appellant possessing and perhaps trafficking cannabis was that it provided an explanation for the circumstances by which he met K and J and, further, was evidence they could use to find that the appellant provided drugs to K and used the provision of those drugs to pressure her for sex, the jury would inevitably have convicted the appellant. For the reasons explained by the Chief Justice and Gray J the evidence of the appellant possessing and trafficking cannabis was relevant and admissible. This is not a case like Weiss where prejudicial evidence was wrongly admitted. In Weiss, the High Court found that the Court of Appeal erred when proceeding on the assumption that the jury had preferred controverted evidence when the jury’s preference for that evidence may have been affected by consideration of the prejudicial evidence wrongly admitted. But this is not a case of a jury possibly being affected in considering its verdict by evidence it should not have heard. Rather it is a case of whether the jury’s verdict may have been affected by the absence of directions as to the use it could have made of relevant evidence properly admitted. In Gassy v The Queen[25] Gummow and Hayne JJ considered whether a misdirection by the trial judge precluded the application of the proviso. They said the issue is whether the appellate court considered that on the whole of the evidence it could be satisfied that no substantial miscarriage of justice had actually occurred. In answering that question it was necessary to consider the nature of the error and in doing that, it is important to consider the possible effect that the error may have had on the outcome of the trial.[26] However, this is not a case of a wrongful direction but rather a case of the absence of a proper direction.
[25] [2008] HCA 18, (2008) 236 CLR 293.
[26] [2008] HCA 18 at [34], (2008) 236 CLR 293 at 307.
While I consider there was a failure properly to direct the jury as to the permissible use of the evidence of the appellant possessing and trafficking cannabis I agree with Gray J that the jury would not have been under any misunderstanding as to the purpose of that evidence. It was an item of circumstantial evidence to be considered by the jury with the other evidence, particularly the evidence of J and K, from which the jury was entitled to reach the conclusion the accused was a dealer in drugs and made use of his supply of drugs to influence and put pressure on K.
The prosecution’s case depended on the acceptance of the testimony of K and J. They gave evidence of being together with a friend R at a bus stop when approached by the appellant. He asked J whether he used methylamphetamine. He showed him some. They agreed to go to the house where K and J lived. Once there they smoked the methylamphetamine. The appellant stayed the night. The following day the appellant, J and R left the house. Later, the appellant returned. He and K smoked methylamphetamine. He suggested injecting her with methylamphetamine. She felt she was being pressured. She agreed. After several unsuccessful attempts, the appellant managed to inject K with methylamphetamine. Subsequently, the two of them smoked more while on a bed. The appellant then propositioned K. She spurned his advances. He became angry and said that he shouted all this crack and she would not do anything for him. K went to the bathroom. He followed her. He grabbed her around the neck. He placed his hand inside her pants and digitally raped her. Then he threatened to kill her. J returned to the house shortly thereafter. K went to the bathroom and deliberately cut her forearm with a razor. Later that day she complained to J that she had been raped by the appellant. No report was made to the police for about a week. In the meantime, the appellant returned to the house on at least two occasions during which they all consumed drugs. Both K and J said they were frightened of him. A complaint was made to police by K only when police attended the house in response to a report of a disturbance relating to a confrontation between the appellant and J over damage to a motor vehicle belonging to a friend of the appellant as a result of J’s driving. The police officer gave evidence that at the time both K and J looked frightened.
The appellant’s record of interview included that he used cannabis regularly and had used methylamphetamine. He said he had approached J to obtain cannabis and that J had offered him ecstasy and had shouted him some methylamphetamine. While he denied supplying methylamphetamine to others, there could be no doubt as to his use of drugs.
The appellant did not give evidence. His case was that K and J were lying. That J had offered him drugs. He had attended at J’s house to obtain drugs. He had not raped K nor threatened her. That K and J had concocted their allegations to conceal their drug use, J’s negligent driving, the fact J was unlicensed and that it was J trafficking in drugs.
The jury’s verdict necessarily involved the acceptance of the evidence of K and J on the central allegations underpinning the charges the jury had to consider.
While the essential condition for the application of the proviso is that this Court must be persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant’s guilt of the offences on which the jury returned its verdicts of guilty, the authorities recognise that there are cases in which it is possible to conclude that the error made at trial should have had no significance in determining the verdicts that were returned by the trial jury. The very fact that the jury did return guilty verdicts cannot be discarded from the appellate court’s assessment of the whole record of trial.[27] As the plurality in Cesan noted, in many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence.[28]
[27] Weiss v The Queen [2005] HCA 81 at [43], (2005) 224 CLR 300 at 317.
[28] [2008] HCA 52 at [129], (2008) 236 CLR 358 at 395.
While making due allowance for the natural limitations under which an appellate court operates, my own independent assessment of the whole of the evidence coupled with the fact that the jury in returning guilty verdicts must have accepted the evidence of K and J, satisfies me that no substantial miscarriage of justice has actually occurred in this case. To my mind it is entirely implausible that K and J would concoct the allegations of rape and a threat to kill in order to conceal their drug use, J’s negligent driving, the fact he was unlicensed at the time of the motor vehicle accident and the allegation that he trafficked in drugs. The record of their evidence, which was the subject of extensive cross-examination, is consistent and credible. The absence of the required direction as to the permissible use of the evidence of the appellant’s drug use could not possibly have resulted in a substantial miscarriage of justice.
Conclusion
I would dismiss the appeal.

[2015] SASCFC 103

30 July 2015

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Evidence

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