Pedro Perara-Cathcart(Appellant) v The Queen

• Jurisdiction: Australia Federal only
• Judge: Kiefel,Bell,Keane JJ.,Gageler J.,Nettle J.,Gordon J.
• Judgment Date: 01 March 2017
• Neutral Citation: [2017] HCA 9
• Docket Number: A39/2016
• Court: High Court
• Date: 01 March 2017

[2017] HCA 9

HIGH COURT OF AUSTRALIA

Kiefel, Bell, Gageler, Keane, Nettle AND Gordon JJ

A39/2016

Pedro Perara-Cathcart

Appellant

and

The Queen

Respondent

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))

Criminal Law Consolidation Act 1935 (SA), ss 349, 353(1).

Evidence Act 1929 (SA), ss 34P, 34R.

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’.

ORDER

Appeal dismissed.

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.

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 Court.

4 As to the sufficiency of the trial judge's directions to the jury, Kourakis CJ concluded that the trial judge's directions did not comply with s 34R(1)4, and that the verdict was attended by an error of law. His Honour went on to hold 5 that because he was not satisfied that no substantial miscarriage of justice had actually occurred, the appeal should be allowed.

5 Gray J considered 6 that the directions of the trial judge were sufficient to comply with s 34R(1) of the Evidence Act. Accordingly, his Honour would have ordered that the appeal be dismissed.

6 Stanley J held that the directions given by the trial judge did not meet the requirements of s 34R(1)7, but was satisfied that no substantial miscarriage of justice had actually occurred 8, and so would also have ordered that the appeal be dismissed.

7 In the result, the appeal to the Full Court was dismissed. Special leave to appeal to this Court was granted on the ground that the order dismissing the appeal could not be sustained by s 353 of the CLC Act, given the conclusion of a majority of the judges of the Full Court that the verdict was attended by an error of law and the absence of a conclusion by a majority of the Court that no substantial miscarriage of justice had occurred. The difficulty raised by the ground of appeal was not adverted to by the Full Court. Were it not for the contention referred to in the next paragraph, the appeal to this Court on this ground would have been allowed.

8 In this Court, the respondent argued, pursuant to a notice of contention, that the trial judge's directions to the jury met the requirements of s 34R(1) of the Evidence Act. On that footing, it was said, the appeal was rightly dismissed by the Full Court. The respondent's contention should be upheld for the reasons which follow.

The case at trial

The prosecution case

9 The prosecution case was that in September 2013, the complainant (‘K’), then aged 16 years, and her boyfriend (‘J’), then aged 18 years, were at the Marion Shopping Centre, accompanied by a 16 year old friend (‘R’). They were approached by the appellant, who was, the prosecution contended, a drug dealer 9. The appellant, then in his early 30s, was previously unknown to K, J and R. The appellant asked J whether he used methylamphetamine, at the same time showing him some methylamphetamine in a container. They all agreed to go to the house where K and J lived, where they smoked methylamphetamine supplied by the appellant. That evening, K saw the appellant injecting R 10. K and J also gave

evidence that, during the night, the appellant said that he had to ‘take some dope’ to another person.

10 The prosecution contended that, on the following day, the appellant and K used methylamphetamine, and at some point the appellant injected methylamphetamine into K's right arm 11. Later that afternoon, the appellant touched K's legs and propositioned her for sex. She refused and the appellant became angry. K went to the bathroom and was followed by the appellant. He placed one arm around her neck, placed the other hand inside her pants and inserted his fingers into her vagina. Immediately before this incident, the appellant said to K, ‘you don't get something for nothing’, in reference to the drugs he had supplied 12. Following the incident, while K was trying to avoid the appellant, he threatened to kill her 13.

11 When J returned home later that day, K told him that she had been raped. J gave evidence of the complaint. Both K and J were afraid of the appellant, who had suggested to them that he had been violent to others, and had stabbed someone in the city 14. The appellant visited K and J at their home several times during the following week, and supplied them with drugs. They saw the appellant for the last time about a week after they first met 15.

12 During that week, J crashed a motor vehicle that belonged to a friend of the appellant. As a result, the appellant threatened J with violence, and there ensued a disturbance which led to the police attending the house 16. An attending police officer described both K and J as nervous and scared. K complained to the police officer that the appellant had raped her 17. The appellant was interviewed by the police on 15 September 2013 and the record of interview was tendered in evidence.

13 The appellant did not challenge the admissibility of the testimony of K and J that he was a dealer in methylamphetamine, that he had injected K and R with methylamphetamine, and that he told them that he used violence against others 18.

14 The appellant did, however, object to the admissibility of that part of the record of the police interview during which he admitted possession of a quarter of an ounce of cannabis, which police had found whilst searching his home after K's complaint. In the argument on the voir dire as to the admissibility of his admission, the prosecution contended that whether the appellant had approached J with a view to obtaining cannabis was an issue in the trial. The appellant, in his record of interview, challenged the account given by K and J that he had approached them with an offer to supply methylamphetamine. The trial judge ruled that the appellant's admission was admissible in evidence 19. As noted earlier, that ruling is not in dispute in this Court.

The defence case

15 The appellant did not give evidence and called no other evidence. The defence case was that the appellant met K, J and R while he was looking to purchase some cannabis for his own personal use 20. In his record of interview, the appellant said that he approached J, who was selling drugs at the Marion Shopping Centre, because he ‘wanted to buy a bag of dope’, but that J had said that he did not have any, although he did have ecstasy tablets. According to the defence, that meeting led to the appellant's going with the others to the home of K and J, where J supplied ‘ice’, which was consumed by the appellant and the others.

16 On the defence case, the allegations of rape and threatening to kill were fabricated by K and J as a result of a fear on their part that the police might consider that J was a drug dealer. It was said that K's allegations of rape, and of the threat to kill her, were made up in an attempt to distract attention from K and J's drug use and the fact that J was trafficking in drugs 21.

17 In relation to the appellant's assertion that he had sought to acquire cannabis from J at their first meeting at the Marion Shopping Centre, the appellant's admitted possession at his home of an amount of cannabis – which he had not sourced from J – tended to show that the appellant had no need to approach J to obtain cannabis. His admission was, therefore, apt to cast doubt on his assertion that he had, in fact, done so. On that basis, any weight which might otherwise have been given to the appellant's attack on the reliability of the evidence of K and J was likely to be diminished.

The Evidence Act

18 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...