Perara-Cathcart v The Queen [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.

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 Act¹. Following a trial by jury in the District Court of South Australia, the appellant was convicted of both offences.
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").
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 Act³. That conclusion was not in dispute in this Court.
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 hold⁵ that because he was not satisfied that no substantial miscarriage of justice had actually occurred, the appeal should be allowed.
Gray J considered⁶ 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.
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 occurred⁸, and so would also have ordered that the appeal be dismissed.
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.
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

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 dealer⁹. 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 R¹⁰. K and J also gave evidence that, during the night, the appellant said that he had to "take some dope" to another person.
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 arm¹¹. 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 supplied¹². Following the incident, while K was trying to avoid the appellant, he threatened to kill her¹³.
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 city¹⁴. 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 met¹⁵.
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. 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. The appellant was interviewed by the police on 15 September 2013 and the record of interview was tendered in evidence.

The defence case

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 use²⁰. 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.
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 drugs²¹.
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

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

(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."

The trial judge, in summing‑up the defence case to the jury, referred to the submission by counsel for the appellant that "in reality, proof in this case of any of the offences rests upon you being satisfied as to the truthfulness and accuracy of the evidence of [K]."
His Honour went on to remind the jury of the various attacks made by the appellant's counsel upon the truthfulness and accuracy of K's evidence. In particular, his Honour reminded the jury of the contention advanced by counsel for the appellant that it was not credible for K to allege that she had been raped by the appellant while continuing to associate with him. In relation to the testimony of K and J that they were intimidated by the appellant because he was a drug dealer, the trial judge warned the jury:

"[Y]ou cannot use the faulty line of reasoning that merely because he may have done those things on other occasions, that he is the sort of person who would commit this offence and, therefore, find him guilty where proof is lacking."

The Full Court

Kourakis CJ rightly observed that, by pursuing a defence based on the alternative explanation for being in K and J's company, namely his attempt to source cannabis, the appellant made his independent possession of cannabis a real forensic issue²². His Honour held that the evidence was admissible²³, but concluded²⁴ that the trial miscarried because of the trial judge's failure properly to direct the jury in accordance with s 34R(1). His Honour considered²⁵ that the trial 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 appellant] trafficked or was more likely to trade in methylamphetamine."

Kourakis CJ went on to conclude²⁶, in relation to the application of the proviso, that because the prosecution case depended upon the credibility of the testimony of K and J, and because the Court was not in a position to evaluate their credibility from the transcript of the evidence, the proviso could not be applied, and the appeal should be allowed.
Gray J held that the evidence of possession of cannabis in the appellant's home was admissible²⁷ because the offences charged were alleged to have occurred in the context of drug dealings between the appellant, K, J and R. His Honour observed²⁸ that the trial judge explained to the jury that the evidence "provided the context in which the alleged offending occurred … [as] part of the unfolding prosecution case." Gray J did not consider that the jury would have been "under any misunderstanding as to the purpose of the evidence of discreditable conduct" but would have understood it as:

"an item of circumstantial evidence … from which [with other evidence] the jury would be entitled to reach the conclusion that [the appellant] was a dealer in drugs and made use of his supply of drugs to influence and put pressure on [K]."²⁹

Unlike Kourakis CJ, Stanley J considered³⁰ that the direction given by the trial judge was adequate to explain the impermissible use of the evidence of the appellant's drug use. His Honour considered that it was sufficient that the trial judge's directions made it clear that the jury could not use the evidence to reason that the appellant was the kind of person who might be likely to commit the offences charged. On the other hand, Stanley J was not persuaded that the direction adequately explained the permissible use of that evidence.
In this regard, Stanley J observed³¹ that the extent of the direction given was 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." Stanley J held that the trial judge was required to direct the jury that the permissible use of the appellant's admission was to explain the circumstances by which the appellant met K and J, and "further [it] 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."³² Stanley J held³³ that the failure of the trial judge to direct the jury in this way constituted an error of law in failing to comply with s 34R(1) of the Evidence Act. To the extent that Stanley J seems to have considered that the trial judge was obliged to direct the jury that they might properly use the appellant's admission that he was in possession of a quarter of an ounce of cannabis as tending to show that he supplied K, J and R with methylamphetamine, this was precisely the use which Kourakis CJ regarded as something against which the jury were required to be warned.
It may also be noted that Stanley J reached this conclusion even though he agreed with Gray J that "the jury would not have been under any misunderstanding as to the purpose of that evidence."³⁴
Before addressing the issue raised by the respondent's notice of contention, it is desirable to explain why, given their Honours' discrepant reasons, s 353(1) of the CLC Act did not support the order of the Full Court dismissing the appeal to that Court.

The application of the proviso

Section 353(1) of the CLC Act contains the common form of the proviso whereby courts of criminal appeal are required to dismiss an appeal against conviction, notwithstanding that a ground of appeal is made out.
Section 353 relevantly 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.

(2) Subject to the special provisions of this Act, the Full Court shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial."

In the CLC Act³⁵, the expression "Full Court" has the same meaning as in the Supreme Court Act 1935 (SA), which is relevantly "the Supreme Court consisting of ... not less than three judges"³⁶.
Section 349 of the CLC Act provides:

"The determination of any question before the Full Court under this Act shall be according to the opinion of the majority of the members of the Court hearing the case."

The appellant submitted that, on the proper construction of s 353(1), where one of the three broad grounds on which it contemplates that an appeal must be allowed is made out, the proviso may be applied to sustain a conviction only if a majority of the judges constituting the Full Court considers that no substantial miscarriage of justice has occurred. A majority of the Full Court, Kourakis CJ and Stanley J, concluded that the trial judge had failed to direct the jury as required by law; but only one judge, Stanley J, and not a majority of the Full Court, held that "no substantial miscarriage of justice ha[d] actually occurred."
The appellant also submitted that, while Gray J held that the trial judge's direction to the jury did not involve an error of law, it did not follow that a majority of the Court had determined that no substantial miscarriage of justice had actually occurred. On the view that Gray J took of the sufficiency of the trial judge's direction, his Honour was not obliged to consider – and did not consider or decide – whether, given the error of law which Kourakis CJ and Stanley J held to have been established, it was nevertheless the case that, having regard to all of the evidence, no substantial miscarriage of justice had actually occurred.
The appellant's submissions in relation to the application of the proviso must be accepted. Under s 353(1), two questions arose for determination before the Full Court: the first was whether the Full Court "thinks that the verdict of the jury should be set aside" on any one or more of the three grounds there stated; and the second was whether the Full Court "considers that no substantial miscarriage of justice has actually occurred." By virtue of s 349, each of these questions was to be determined according to the opinion or opinions of the majority of the members of the Court hearing the case. That did not occur in relation to the question whether, given that a majority of the Court found an error of law in the trial judge's direction to the jury, no substantial miscarriage of justice had actually occurred.
The conclusion that the Full Court's dismissal of the appeal cannot be sustained by the application of the proviso by Stanley J accords with the language of s 353(1), understood in the light of s 349. This conclusion gives effect to the language of s 353(1), which authorises the application of the proviso if "it", meaning the Full Court, "considers that no substantial miscarriage of justice has actually occurred."
Section 349 of the CLC Act applies both to an appeal against conviction or sentence and to a case stated by a trial judge reserving a question of law. Because s 349 does apply in relation to an appeal against conviction or sentence, the determination which is required, in that case, is of "any question" before the Full Court in the appeal. To argue that, in the case of an appeal, "any question" before the Full Court is, always and only, the single question whether the appeal should or should not be allowed is to assume that the provisions which regulate appeals do not throw up more than one question for the purposes of s 349. Whether that assumption is justified depends on the language of those provisions, and of s 353 in particular. It is important to bear in mind that appeals are creatures of statute. One must therefore look to the statute in order to determine what question or questions are required to be answered, rather than proceed on a priori assumptions. While it is usually the case that a statute will require only the question whether an appeal should be allowed or dismissed to be addressed, the legislature may require more. It has done so in the special circumstances in which the proviso operates. In our view s 353(1) makes provision for two questions to be answered. The answers are provided by reference to the opinion of a majority of the Full Court with respect to the questions there stated.

"traditionally been determined according to the opinion of a majority as to the order which gives effect to the legal rights of the parties irrespective of the steps by which each of the Justices in the majority reaches the conclusion³⁹."

The Court went on to say:

"But when an issue of law is determined for the purposes of proceedings pending in a court or tribunal, an order on appeal must declare the majority opinion as to the issue of law, irrespective of any conclusion as to the ultimate rights of the parties to which the reasons of the respective Justices would lead."

Their Honours held that the case before them was in this latter category. They did so in deference to the circumstance that the source of their authority to decide the case was s 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth), pursuant to which a case was stated and a question of law referred for decision by the Full Court of the Federal Court⁴⁰. So in this case the questions for determination by the Full Court posed by s 353 of the CLC Act were whether the Full Court "thinks" that the verdict of the jury should be set aside, and whether the Full Court "considers" that no substantial miscarriage of justice has actually occurred.
Finally, our conclusion on this point accords with the evident purpose of the proviso, which is to ensure that a conviction affected by error should not stand unless at least a majority of the judges of the court sitting on appeal from the verdict have turned their minds to the question of whether no substantial injustice has actually occurred, and satisfied themselves that no such miscarriage has actually occurred⁴¹.
The appellant sought to rely upon some observations by Barwick CJ in R v Ireland⁴². His Honour was concerned to address a submission by the Crown that an appeal against conviction should have been dismissed by the Supreme Court because there was no majority of judges in favour of upholding any single ground of appeal. It was argued that each ground advanced on the appeal in the Supreme Court raised a separate question within the meaning of the then s 349(1) of the CLC Act. It was further argued that the only order which the judgments delivered would support would be an order dismissing the appeal, because no ground of appeal was upheld by a majority of the judges who constituted the Court.
In rejecting this submission, Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed, said⁴³:

"The question in an appeal is whether or not it should be allowed, or, expressed more precisely, whether an order should be made dismissing it or an order allowing it, and in that event making appropriate consequential provision. In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court's reason for decision and thus form a precedent. …

The Full Court, sitting as a Court of Criminal Appeal, not only hears appeals but determines questions of law upon a case stated pursuant to s 350. Consequently, s 349 is expressed to cover both occasions; hence the use of the word 'question' in s 349(1). In relation to the determination of a question submitted by case stated, no difficulty arises under sub‑s (2) though, if the whole section were confined to such a determination, there would not be any need there to qualify the question as a question of law; only such questions can arise for determination on a case stated. But the section clearly embraces appeals pursuant to s 352. … In my opinion, the order of the Supreme Court allowing the appeal was not in disconformity with the opinion of the majority of the Court. The question before it, namely, the fate of the appeal and the proper order to be made, was determined in accordance with the opinion of the majority of the members of the Court hearing the case."

Barwick CJ was concerned with whether an appeal should be allowed where different grounds for doing so were upheld in separate judgments by the members of the majority of the Court. His Honour's observations were thus concerned with what has been described above as the first question posed by s 353(1) of the CLC Act; they were not concerned with the operation of the proviso or the relationship between that question and the question posed by the proviso. His Honour did not consider whether only one question was involved in a determination that an appeal should be allowed under the first limb of s 353(1), but should be dismissed under the proviso.
It may be accepted that the observations of Barwick CJ support the proposition that, in general, only one question is involved in determining whether to order that an appeal be allowed or dismissed; and that that proposition applies to the first limb of s 353(1) even though each of the judges constituting the majority may justify his or her decision on a different one of the three grounds identified in that provision. But Barwick CJ's observations that the question in an appeal is whether an order should be made dismissing it, or an order should be made allowing it, did not address the specific language of s 353(1), and do not deny that a second question is posed by s 353(1). Under the proviso the Full Court is authorised to dismiss an appeal which it would otherwise be obliged to allow only if "it" (that is, a majority of the Full Court) considers that no substantial miscarriage of justice has actually occurred. To say that an appeal under s 353(1) of the CLC Act gives rise to only one question – namely whether the appeal should be allowed or dismissed – because only one order will be made to dispose of the appeal, is to fail to give effect to the text of s 353(1) and to the evident purpose of the proviso that, where a majority has concluded that an appeal should be allowed for one or more of the grounds mentioned in the first limb of s 353(1), it will be dismissed only where a majority of the Full Court has concluded upon a review of the whole record that no substantial miscarriage of justice has actually occurred.
For these reasons, we would have allowed the appeal but for the issue raised by the respondent's notice of contention.

The notice of contention

The appellant's submissions

When evidence is admitted under s 34P, s 34R(1) obliges a trial judge to give directions to the jury to "identify and explain the purpose for which the evidence may, and may not, be used." The appellant submitted that the directions given by the trial judge offered only limited direction as to how the evidence of the appellant's admission might not properly be used, and no guidance as to how it could properly be used. It was also submitted that the trial judge erred in that he did not explicitly state that the jury could use the evidence for a particular identified purpose, but for no other purpose.

The requirements of s 34R(1)

A sufficient direction under s 34R(1) must identify the purpose for which the evidence may be used and the purpose for which it may not be used. Compliance with s 34R is mandatory. Whether there has been compliance with s 34R(1) will depend upon the circumstances of the case⁴⁴.
In relation to the appellant's last submission, it may be said that s 34R does not require the trial judge to instruct the jury using the precise language of s 34P. That is unsurprising, given that s 34P is directed to the determination by the trial judge of questions of admissibility of evidence, not the use of the evidence by the jury. It was, therefore, not a deficiency in the trial judge's directions that he did not append to his directions the phrase from s 34P(1)(c) "for any other purpose".
The question is whether the trial judge's directions were sufficient to identify the permissible and impermissible uses of the appellant's admission that the cannabis found at his house belonged to him. Whether those directions conform to the requirements of s 34R(1) can only be determined having regard to the real issues in the case. In Huynh v The Queen⁴⁵, French CJ, Crennan, Kiefel, Bell and Gageler JJ reiterated that the general responsibility of the trial judge to direct the jury on matters of law is as stated in Alford v Magee⁴⁶; that is, the trial judge is obliged:

"to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues."

The sufficiency of a direction to satisfy the requirements of s 34R(1) must be determined in the light of this fundamental responsibility of the trial judge. In R v Getachew⁴⁷, a case in which the governing statute provided for mandatory directions to a jury in relation to a case of alleged rape, French CJ, Hayne, Crennan, Kiefel and Bell JJ said:

"The directions to be given to a jury on a trial for rape are to be moulded in the light of the proper construction of the relevant provisions of the [Crimes Act 1958 (Vic)] and, no less importantly, having regard to the real issues in the trial. As this Court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues." (footnote omitted)

In the present case, the real issue was whether the testimony of K and J was reliable, and, in particular, whether the appellant's assertion that J was the source of the drugs consumed by the appellant and others was apt to create reasonable doubt as to the reliability of their testimony. The appellant's admission that he had subsequently been found in possession of cannabis tended to dispel the doubt which the defence case sought to raise in relation to the case for the prosecution. No one who participated in the trial raised any concern that it might be used in some way other than as support for the prosecution case against the appellant's attack upon it.
Given the real issue in the case, the proper use by the jury of the appellant's admission was neither subtle nor elusive. It did not require an elaborate explanation to ensure that the jury appreciated what use of the admission was permissible and what use was not.

Permissible use

The prosecutor, during his closing address to the jury, invited the jury to consider the appellant's admission of his possession of cannabis only when considering the version put forward by the appellant in his interview, and when assessing the evidence of K when she said the appellant had told her that he was going to deliver some "dope" to someone. In this context, s 34R(1) required directions sufficient to ensure that the jury understood that they could properly use the appellant's admission for the purpose of determining whether the case for the prosecution was reliable, notwithstanding the appellant's attack upon it.
The issue in relation to which the appellant's admission was relevant was important, but, in truth, simple. The appellant's admission suggested that the appellant's challenge to the reliability of K and J did not "hang together" with the other evidence. The use of the evidence in relation to that issue was readily understandable. As a result, the direction given by the trial judge did not require further elaboration in order to comply with the requirement of s 34R(1).
Stanley J erred in taking the view that s 34R(1) required the trial judge to instruct the jury that the appellant's admission could be used to reason to a conclusion that the appellant was a dealer in methylamphetamine. The trial judge did not err in law by not directing the jury to engage in such faulty reasoning. The possession of a quarter of an ounce of cannabis by the appellant could not reasonably be used to suggest that the appellant was a dealer in methylamphetamine. Kourakis CJ was of that opinion. His Honour went on to conclude that the jury had to be directed to that effect. As will be explained, Kourakis CJ erred in concluding that such a direction was necessary to comply with s 34R(1); but the point to be made here is that the course taken by the trial judge avoided both Scylla and Charybdis.
It is also to be noted that the defence did not seek a direction from the trial judge in the terms said to be necessary by Stanley J. Of course, the trial judge was not relieved of the duty cast upon him by s 34R(1) by the manner in which the case was conducted for the defence; but the absence of an application by counsel for the defence for a further direction affords some practical indication that the trial judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case, succeeded in that task.
For the sake of completeness, it may be noted that the respondent argued that, given the view of Stanley J that the error had no impact on the jury's deliberations, his Honour should have determined that the lack of specificity in the trial judge's directions to the jury did not give rise to a miscarriage of justice. This submission cannot be accepted in the terms in which it was put. Section 34R(1) must be complied with. The possibility that a jury may come to a correct understanding of the use which may be made of evidence of discreditable conduct, despite the fact that the mandatory terms of s 34R(1) have not been complied with, is not a basis on which compliance with s 34R(1) may be dispensed with. But the circumstance that an appeal court is left in no doubt that the jury did not misunderstand the permissible use of the evidence in question may provide some level of practical confirmation that the direction that has been given was adequate in the circumstances of the case. That circumstance may not be determinative, but it need not be ignored.

Impermissible use

The trial judge directed the jury against reasoning to the effect that, because there was evidence which suggested that the appellant was a drug dealer, it was more likely that he committed the offences. That direction was sufficient for the purposes of s 34R(1). The real issue in the case was not such as to require a more specific direction than that given by the trial judge as to how the jury might not use the appellant's admission.
Relying on the reasoning of Kourakis CJ⁴⁸, the appellant submitted that the jury should have been, but were not, warned against reasoning that, because the appellant had possession of some cannabis, they could use that evidence to conclude that it was more likely that he provided methylamphetamine to K and J, as alleged by them.
It is true that the trial judge did not differentiate between different types of drug dealing. That is understandable given that there was no issue in the case as to whether the appellant or J trafficked in one kind of illicit drug rather than another. The real issue was simply whether the appellant's assertion that J was the drug dealer was, in light of the appellant's admission, apt to cast reasonable doubt on the case for the prosecution.
As the case was fought, there was no occasion for the jury to be distracted by a suggestion from the trial judge that the appellant's admitted possession of cannabis should not be used as tending to prove that the appellant was a dealer in methylamphetamine. There was direct, but contested, evidence that the appellant supplied K, J and R with methylamphetamine, the supply of which gave rise to the occasion on which the appellant was alleged to have raped and threatened K. The real issue was whether that evidence was reliable. The resolution of that issue did not need to be complicated by raising a separate issue as to whether the appellant was otherwise in the business of dealing in methylamphetamine, or by a direction that the appellant's admission that he possessed a quarter of an ounce of cannabis could not be used as a basis for resolving that issue in the affirmative.
It is neither necessary under s 34R(1) of the Evidence Act, nor desirable generally, for a trial judge to instruct the jury about the law in relation to matters about which no issue arises in the trial. The heavy responsibility of a trial judge does not extend to imagining possible issues which the parties have not raised – much less to formulating directions designed to instruct the jury in relation to the resolution of such non‑issues. In the circumstances of the present case, there was no occasion for concern that the jury might use the appellant's admission for the impermissible purpose that troubled Kourakis CJ. It is apparent that no one participating in the trial, and focused upon the real issue, apprehended that the admission might be misused in that way.

Conclusion and orders

The issue raised by the respondent's notice of contention must be decided against the appellant.
The appeal should be dismissed.
GAGELER J. 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:

Inadequate direction?Proviso applicable?Appeal allowed?Kourakis CJ

Gray J

Stanley JYes

YesNo

‑

YesYes

NoMajorityYes‑No

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 case⁵¹.
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.
The decision-making rule applied to produce the order of a multi-member court in a case in which there is disagreement between its members is different in timing, concept and purpose from the principle applied in an attempt to extract a ratio decidendi from the reasons for decision of the members of that court in that case. The decision-making rule is applied at the time of decision. The rule is directed to ensuring an outcome in the case. When triggered by disagreement, the rule applies to produce a result. The principle is applied subsequently and in retrospect. The principle is directed to the ideal of ensuring that cases are decided consistently through time. The principle cannot be expected always to achieve that ideal. Every case must have an outcome, but not every case need have a ratio decidendi.
When members of a Full Court of the High Court are "divided in opinion as to the decision to be given on any question", the decision-making rule is supplied by s 23(2) of the Judiciary Act 1903 (Cth). If the case is in the High Court's appellate jurisdiction and there is an equal division of opinion, the decision appealed from is left to stand. If there is an equal division in the High Court's original jurisdiction, the opinion of the Chief Justice or Senior Justice prevails. In each of those circumstances of equally divided opinion, the applicable decision-making rule produces a resolution of the case at hand. In neither of those circumstances does application of the rule produce a decision which necessarily constitutes a binding precedent. When the division in opinion in the High Court is not equal, the decision-making rule is that "the question shall be decided according to the decision of the majority". That decision-making rule produces a resolution of the case at hand notwithstanding that aggregation of the reasons for decision of members of the majority can sometimes fail to yield a ratio decidendi.

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.'"
It was said that, some time after, J returned to the house. K said that she heard J talking to the appellant and that she then went to her en suite bathroom, where she showered. She also cut herself repeatedly with a razor. J and the appellant next left the house and, subsequently, J returned alone. It was alleged that, at that point, K complained to J that the appellant "had touched me and raped me". Nonetheless, over the course of the next week, K and J saw the appellant on numerous occasions and travelled with the appellant in his utility vehicle. While K, J and the appellant were at another house for "[a] while", J "went off on a few different occasions to do things for [the appellant]" and K slept at the house. Around that time, J borrowed and damaged the car that the appellant was driving at the time, which resulted in an argument. Police attended and arrested J for driving while unlicensed. K was at the scene of the arrest and was spoken to by police. She later gave an account to the police of what had happened between her and the appellant in her bathroom a week earlier.

Relevant statutory provisions

So far as is relevant, s 34P of the Evidence Act provides that:

(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

(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.

Section 34R of the Evidence Act provides that:

"(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 353 of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act") governs the determination of appeals against conviction. Sub‑section (1) provides that the Full Court:

"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."

The final aspect of that provision, which allows a Full Court to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred, reflects the common form proviso⁷³.

Trial judge's directions as to the cannabis evidence

Over objection, the trial judge admitted the record of the appellant's interview with police, including his admissions that the cannabis found at his home was his. The trial judge ruled as follows:

"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, [J's] account, and as such tend to confirm a portion of what he said. For that reason I admit them."

In summing up, the trial judge directed the jury as to the use which could and could not be made of the evidence thus:

"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 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." (emphasis added)

Proceedings before the Court of Criminal Appeal

Before the Court of Criminal Appeal, the appellant contended that the cannabis evidence should not have been admitted under s 34P and, in the alternative, that the trial judge's directions failed to comply with s 34R(1). All three members of the Court held that the evidence was admissible, but each for different reasons. Kourakis CJ held⁷⁴ that the probative value of the evidence was that the appellant's:

"possession of a substantial amount of cannabis, which he had not sourced from J, ... renders his claim that he approached J to obtain cannabis less probable than it might otherwise have appeared to be. ... [B]y 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 [appellant] made his independent possession of cannabis a real forensic issue."

Gray J considered⁷⁵ that the evidence was admissible because:

"The fact that the police discovered quantities of cannabis at the [appellant's] home, together with other evidence in the trial about conversations concerning drugs and the supply of drugs by the [appellant], if accepted by the jury, would allow the conclusion that the [appellant] was a dealer in drugs.

...

The statements made by the [appellant] to police formed an item of circumstantial evidence, which, when considered with other items of circumstantial evidence, would allow the conclusion that the [appellant] 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."

Stanley J was of the view⁷⁶ that the evidence of the appellant's drug use was properly admissible having regard to the provisions of s 34P. His Honour did not state what he considered the relevance of the evidence to be but expressed agreement with the reasons of Gray J in that respect.
Kourakis CJ and Stanley J both considered that the trial judge's directions as to the cannabis evidence did not comply with the requirements of s 34R(1), but, again, for different reasons. Kourakis CJ held⁷⁷ that the directions were inadequate because they failed sufficiently to identify and explain the purpose for which the evidence could be used and the purposes for which it could not be used. Stanley J held⁷⁸ that the directions were inadequate to explain the purpose for which the evidence could be used, but were adequate to identify and explain the purpose or purposes for which the evidence could not be used. Gray J considered⁷⁹ that the directions were adequate.
Kourakis CJ held⁸⁰ that the proviso could not be applied because the Crown case depended on the credibility and reliability of K and J and the Court could not assess their credibility on the basis of the transcript alone. In contrast, Stanley J held⁸¹ that the proviso could be applied because "[i]n this case the absence of the requisite directions would have had no significance in determining the jury's verdict". His Honour concluded⁸² that:

"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."

Gray J did not consider the application of the proviso.

In the result, two members of the Court of Criminal Appeal (Kourakis CJ and Stanley J) concluded that an error of law had occurred in the course of the appellant's trial but two members of the Court (Gray and Stanley JJ), only one having applied the proviso, dismissed the appellant's appeal against conviction.

The appellant's contentions

The appellant embraced the reasoning of Kourakis CJ as to the inadequacy of the directions given pursuant to s 34R(1) in respect of the cannabis evidence. In the appellant's submission, the directions were inadequate because, contrary to s 34R(1), the jury were not told the purpose for which the evidence could be used, were not warned that it could not be used for any other purpose and, in particular, were not warned that they were not to reason that because the appellant was in possession of cannabis it was more likely that he was a dealer in methylamphetamine. The appellant further contended that Kourakis CJ was right to hold that in a case of this kind it was not open to apply the proviso. It followed, in the appellant's submission, that the appeal should have been allowed. In the alternative, the appellant argued that, given that two members of the Court of Criminal Appeal concluded that the trial judge made an error when directing the jury under s 34R(1), and only one had considered that the proviso could be applied, the only order which the Court could properly have made was that the appeal be allowed, the convictions be quashed and a new trial be had.

The Crown's contentions

Under cover of notice of contention, the Crown contended that the trial judge's directions as to the cannabis evidence were adequate for the purposes of s 34R(1) and that the orders of the Court of Criminal Appeal should be upheld on that basis. Alternatively, the Crown submitted that, assuming Stanley J were correct in holding that the directions under s 34R(1) were inadequate, his Honour was correct in his application of the proviso and in holding that there was no substantial miscarriage of justice. It followed, in the Crown's submission, that, because two members of the Court of Criminal Appeal (Gray and Stanley JJ) found that there was no substantial miscarriage of justice, albeit for different reasons, the Court was right to dismiss the appeal.

The relevance of the cannabis evidence

Kourakis CJ was correct to hold that the relevance of the cannabis evidence was that it threw doubt on the appellant's statement to police that he had approached J at the shopping centre in order to source cannabis from J. More precisely, assuming that possession of cannabis seven days after the commission of the alleged offences implied that the appellant had been in possession of cannabis at the time of the alleged offences, the jury could legitimately have reasoned that, because the appellant was already in possession of cannabis, it was less likely that the appellant would have approached J to buy cannabis as the appellant alleged and, if the appellant did not approach J to buy cannabis, it was more likely that he approached J to sell methylamphetamine as J alleged. In this Court, both the appellant and the Crown accepted that the cannabis evidence was relevant on that basis.
As Kourakis CJ went on to observe⁸³, however, evidence of the appellant's possession of cannabis was not in itself probative of whether the appellant was a dealer of methylamphetamine: "[i]t 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." For that reason, the Crown's submission before this Court, that "there was no reason to differentiate between these two aspects of drug dealing", is misplaced. There was nothing in the evidence or in the logic of the cases presented at trial which supported the idea that dealing in cannabis made it more likely that there was dealing in methylamphetamine. Nor is it within the realm of ordinary experience that a person who possesses an amount less than an ounce of cannabis is more likely than a person who does not to be a dealer in methylamphetamine.

Directions required under s 34R(1)

The potential undue adverse impact on an accused of evidence of the accused's discreditable conduct is firmly established by previous decisions of this Court⁸⁴. It is for that reason that s 34R(1) is directed to ensuring that, where discreditable conduct evidence is admitted under s 34P, the jury are adequately instructed as to "the purpose for which the evidence may, and may not, be used." The sub-section demands that a trial judge identify and adequately explain those permissible and impermissible purposes. Otherwise, the constraints on admissibility imposed by ss 34P and 34Q would be pointless.
Failure adequately to direct a jury as to the permissible use that may be made of discreditable conduct evidence renders it more likely that the jury will use it impermissibly⁸⁵. So much is acknowledged by the wording of s 34P(3), which emphasises the importance of the prerequisite of admission that "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" (emphasis added).
For that reason, as Kourakis CJ concluded, it was incumbent on the trial judge under s 34R(1) to explain to the jury that the only use which could be made of the cannabis evidence was that it could be regarded as rendering the appellant's statement to police that he had approached J to buy cannabis less probable than it might otherwise have appeared. It was not enough to instruct the jury in the facile and enigmatic terms that were employed that the evidence formed "part of the unfolding of the prosecution case" or was "intertwined with the events that occurred"⁸⁶. That fell well short of the particularity which is vital in relation to discreditable conduct evidence⁸⁷. The high degree of particularity which is required is apparent from the fact that s 34R(1) imposes an obligation on the trial judge to both identify and explain the permissible and impermissible uses of the evidence.
The point was emphasised in the second reading speech pertaining to the introduction of Pt 3, Div 3 of the Evidence Act as follows⁸⁸:

"The Bill confirms the established judicial practice set out in Nieterink and many other cases that, if the evidence of past discreditable conduct is admitted for a specific and limited purpose, such as background or relationship that does not involve a propensity or similar fact line of reasoning, then it is incumbent on the trial judge to warn the jury to this effect.

The effect of Nieterink is that the jury should be told how they should use the evidence and how they should not use the evidence. The jury has to be told the particular manner in which the evidence could be used. It is contemplated that this can be done relatively briefly. Usually, it will not be enough for the trial judge to speak generally to the jury of the evidence establishing 'background', 'context' or 'relationship' matters. It will be preferable for the trial judge to be quite specific about the proper use of the evidence, both to help the jury to approach the evidence in the correct manner and to reduce the risk of an incorrect approach. The jury should be told that the evidence, if accepted, is evidence of the limited and specific purpose for which the evidence was specifically admitted. Even if the evidence is capable of being used for propensity or similar fact purposes, as will often be the case in practice, the jury must be warned they cannot use the evidence for such wider purposes.

...

The Bill recognises, as was observed by the Chief Justice in Nieterink, that it is very important that these warnings and directions are given in an appropriate case because of the potential for prejudicial misuse of evidence of uncharged acts of discreditable conduct. The Bill further recognises that it is important for the trial judge to emphasise both the correct and incorrect use of the evidence. If both aspects are not present in any summing up, there is a real risk that the jury will misunderstand their task." (emphasis added)

As Kourakis CJ recognised, it was also incumbent on the trial judge under s 34R(1) to explain to the jury that the cannabis evidence could not be used for any other purpose than that identified above; and, in particular, that it was not open to reason that a person who possesses cannabis is more likely to be a dealer in methylamphetamine than a person who is not in possession of cannabis. The direction which was given "It would be quite wrong of you to say 'Well, the accused is a drug dealer, he must be guilty of these offences'" was pitched at too high a level of generality⁸⁹. It may have identified one impermissible reasoning process (namely, to infer that a person who deals drugs is more likely to commit other criminal offences, including rape), but it failed to bring home to the jury that the hypothetical premise (namely, that "the accused is a drug dealer", relevantly in methylamphetamine) was itself contested and that it was not permissible to reason to that conclusion by way of propensity reasoning based on the cannabis evidence.
Contrary to the conclusions reached by Gray and Stanley JJ, a specific direction against engaging in the latter process of reasoning was necessary because it amounts to reasoning that, because the appellant was sufficiently criminally disposed to be in possession of one kind of illicit substance (cannabis), he was more likely to be sufficiently criminally disposed to deal in another kind of illicit substance (methylamphetamine). So to reason is logically no different from, and no less impermissible than, reasoning that because a person is sufficiently criminally disposed to carry a knife he or she is more likely to be sufficiently criminally disposed to carry a pistol⁹⁰.
The Crown contended that non-compliance with s 34R(1) may be excused in circumstances where no miscarriage of justice is occasioned by the non-compliance, and that here there was no miscarriage of justice because, in the way the trial was conducted, the jury would have understood the purport and significance of the observation that the cannabis evidence was admitted as "part of the context".
That submission should be rejected. On any view, there was a real risk that, absent a specific direction to the contrary, the jury would reason impermissibly to the conclusion that the appellant was a dealer in methylamphetamine. As it was put, the fact of the appellant being a dealer in methylamphetamine was an important aspect of the Crown case. In the course of final address, the prosecutor expressly put to the jury that it was the fact of the appellant being a dealer in methylamphetamine that allowed him to use K, J and R "to his advantage". On K's contested evidence, the appellant offered her a large amount of methylamphetamine "to have a shower with him" and told her that he "wanted something" for having supplied methylamphetamine to her previously. In the Crown's submission to the jury, the likelihood that the appellant was a dealer in methylamphetamine, and thus was able to offer a large amount of methylamphetamine to K, also explained, or helped to explain, why, if the appellant had committed the alleged offences, K and J continued to associate with the appellant on an apparently regular basis for the better part of the week following the alleged offences, without complaining to the police.

The proviso a substantial miscarriage of justice?

Kourakis CJ was also correct in holding that, because the Crown case depended on the acceptance of K and J's testimony, it was not open to apply the proviso. It was impossible for the Court of Criminal Appeal to evaluate K and J's credibility on the face of the transcript. That was especially so in light of the challenges to their evidence on the basis that they had reason to lie and that their recollections were affected by their drug use. In this case, the natural limitations of proceeding on the record of trial precluded a conclusion that guilt was proved beyond reasonable doubt⁹⁸. It is impossible to gainsay that, if the jury had been directed in accordance with s 34R(1), they may have entertained a reasonable doubt as to K and J's credibility⁹⁹.

Majority judgment

It will be recalled that, in the Court of Criminal Appeal, Gray J held there was no error in the trial judge's directions to the jury, and thus no miscarriage of justice, and Stanley J held that, although there was a misdirection amounting to a miscarriage of justice, there was no substantial miscarriage of justice. A significant part of the argument before this Court was devoted to the question of whether there could be said to be a majority, comprised of those judgments in aggregate, holding that there was not a substantial miscarriage of justice for the purposes of the proviso and therefore that the appeal should be dismissed.
The short answer is that, for the reasons already given, Kourakis CJ was correct in holding that there was a miscarriage of justice to which the proviso could not be applied. More generally, however, it is to be observed that it would not be permissible to aggregate the conclusions of Gray and Stanley JJ in the manner suggested.
As has been seen, s 353(1) of the CLC Act requires that if on an appeal against conviction the Full Court thinks that the conviction should be set aside on the ground that there has been a miscarriage of justice, it must allow the appeal unless the Full Court further "considers that no substantial miscarriage of justice has actually occurred". Section 349 of the CLC Act provides that any question before the Full Court under the Act shall be determined according to the opinion of the majority of the members of the Court hearing the case. Here, as matters stood before the appeal to this Court, a majority of two judges of the Court of Criminal Appeal (Kourakis CJ and Stanley J) were of the opinion that the inadequacy of the directions given in purported compliance with s 34R(1) was productive of a miscarriage of justice; one judge (Kourakis CJ) was of the opinion that the proviso could not be applied; one judge (Stanley J) was of the opinion that the proviso could be applied; and one judge (Gray J) had not considered the application of the proviso. It follows that a majority of two judges were of opinion that there had been a miscarriage of justice and there was an absence of a majority in favour of the view that the proviso could be applied. Accordingly, the appeal should have been allowed.
The Crown contended to the contrary that it is apparent from Barwick CJ's reasoning in R v Ireland¹⁰⁰ that the requirement in s 349 that any question before the Full Court under the CLC Act be determined according to the opinion of the majority of the members of the Court applies only to the ultimate question of "whether or not [the appeal] should be allowed", and, hence, has no separate application to the anterior question of whether the Full Court considers that there has been a miscarriage of justice to which the proviso could be applied.
Ireland does not support that conclusion. It establishes that the expression "any question" in s 349 does not mean the individual grounds of appeal, or individual questions of law raised in an appeal, but rather whether a majority of the Full Court thinks that there has been a miscarriage of justice. Accordingly, as was held in Ireland, if a majority of the Full Court, albeit each member of the majority for different reasons and on different grounds, concludes that there has been a miscarriage of justice, the appeal must be allowed. It is true that in the course of reasoning to that conclusion, Barwick CJ observed that:

"The question in an appeal is whether or not it should be allowed, or, expressed more precisely, whether an order should be made dismissing it or an order allowing it".

But that part of his Honour's reasoning is to be understood as addressing a context in which the application of the proviso was not in issue. No issue arose in Ireland as to the application of the proviso and no consideration was given to the application of s 349 to a provision in the form of s 353(1).
Consistently with the historical context in which it was enacted¹⁰³, s 353(1) mandates that the Full Court proceed first to decide the question of whether it thinks that the conviction should be set aside; and, secondly, and only if the Full Court has decided that there are grounds to set aside the conviction, whether "it considers that no substantial miscarriage of justice has actually occurred". As the provision is structured, the Full Court is not authorised to proceed to the second question until and unless it has answered the first question affirmatively. And, as Barwick CJ noted of the common form proviso in Driscoll v The Queen¹⁰⁴, the burden of persuasion in relation to each question is different:

"[I]t must rest upon the appellant in the first instance to raise in the mind of the Court of Criminal Appeal a reasonable doubt as to whether in all the circumstances a miscarriage may not have occurred. It then must rest upon the Crown, if an order for a new trial is not to be made, to remove any such doubt from the mind of the court so that it is not satisfied that a miscarriage has occurred."

Authority makes plain that it is not permissible to construct a ratio decidendi by the aggregation of various elements of separate reasons, still less to extract an element from a dissenting judgment and combine it with an element from a majority judgment in an attempt to create a majority in favour of that element¹⁰⁵. Parity of reasoning dictates that, where a majority of the Court of Criminal Appeal has decided that there has been a miscarriage of justice, it is not permissible to construct a further decision by a majority of that Court that there has been "no substantial miscarriage of justice" by aggregating the decision of one member of the Court to that effect with the decision of another member of the Court who was not persuaded, at the point of the anterior question, that there had been a miscarriage of justice. In such circumstances, a majority of the Court has decided that there has been a miscarriage of justice, and it follows that the appeal to that Court must be allowed.

Conclusion and orders

In the result, the appeal to this Court should be allowed. The orders of the Court of Criminal Appeal should be set aside. In lieu of those orders, it should be ordered that the appeal to the Court of Criminal Appeal be allowed, the convictions be quashed and a new trial be had.
GORDON J. The facts and circumstances are set out in the reasons of other members of the Court. The reasons of Kiefel, Bell and Keane JJ, and the separate reasons of Nettle J, adopt a construction of common form criminal appeal provisions, such as s 353 of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act"), that I do not accept.
The construction that a majority of the Court now adopts is contrary to the unanimous considered opinion of the Court in R v Ireland¹⁰⁶, which has stood unchallenged for more than 45 years. The construction that a majority of the Court now adopts, if literally available, yields impractical results, for it would have a judge who has decided that there was no miscarriage of justice then go on and consider separately whether there has been any substantial miscarriage of justice. To put it another way, the judge who concludes that there has been no miscarriage of justice would have to consider the reliability of the verdict of a jury that that judge has concluded was reached following a trial properly conducted according to law. It treats the reasons of appellate judges as legally more significant than the order to which those reasons are directed. It is a construction that elevates judicial reasons over orders. Orders, not reasons, are the focus of an appeal.
However, for the reasons stated by Kiefel, Bell and Keane JJ, I agree that the respondent's notice of contention should be upheld. On that basis, the appeal should be dismissed.

Orders not reasons

An appeal is a statutory process directed to the correction of orders¹⁰⁷.
Section 353 of the CLC Act provides for the determination of criminal appeals in ordinary cases in South Australia. Section 353(1) relevantly provides that "[t]he Full Court[¹⁰⁸] on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside" on one of a number of stated grounds, "and in any other case shall dismiss the appeal" (emphasis added). It goes on to provide that "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" (emphasis added).
That s 353 is a provision directed at the determination of an appeal against orders, not reasons, is made plain by s 352(1)(a) of the CLC Act: the appeal is against conviction (which is to say, the order)¹⁰⁹. The orders made by the court below (the conviction and the sentence) stand unaltered if the appeal is dismissed, or, if the appeal is allowed, the orders are corrected by the Full Court "quash[ing] the conviction and either direct[ing] a judgment and verdict of acquittal to be entered or direct[ing] a new trial"¹¹⁰.
And so too in this Court, an appeal is directed to orders, not reasons. Section 73 of the Constitution gives this Court jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences" (which is to say, orders made in the court below¹¹¹). The jurisdiction of this Court is to make such order as the court below – here, the Full Court – should have made¹¹². There is nothing in s 352 of the CLC Act, or s 73 of the Constitution, about appeals against reasoning or steps in reasoning towards an order¹¹³.

"Question" before the Full Court

Section 349 of the CLC Act, headed "Court to decide according to opinion of majority", provides that "[t]he determination of any question before the Full Court under this Act shall be according to the opinion of the majority of the members of the Court hearing the case" (emphasis added)¹¹⁴. The word "question" is used because s 349 applies not only to appeals but also to questions of law referred to the Full Court¹¹⁵.
In the determination of a criminal appeal under s 353 of the CLC Act, the "question" before the Full Court of the Supreme Court of South Australia, for the purposes of s 349 of the CLC Act, is whether to allow or to dismiss the appeal against conviction and what orders should be made¹¹⁶.
This Court considered the meaning of "question" in s 349 in Ireland¹¹⁷. In that case, the Full Court of the Supreme Court of South Australia had allowed an appeal against conviction by majority, but each member of the majority had upheld a different ground of appeal¹¹⁸. In seeking special leave to appeal, the Attorney‑General for South Australia made the "somewhat novel submission" that each ground of appeal before the Full Court raised a "question" within the meaning of s 349, and as there was no majority opinion on any "question", the appeal should have been dismissed (emphasis added)¹¹⁹.
Special leave was refused. Referring to s 349, Barwick CJ (with whom McTiernan J, Windeyer J, Owen J and Walsh J agreed) explained¹²⁰:

In civil proceedings, reasons given in the course of refusing special leave are not binding¹²¹. The position in relation to criminal matters heard before 1991¹²² may be different if only because the hearing of the application for special leave was treated as the hearing of the appeal. And, of course, in Ireland¹²³, the Court took time to consider its decision and delivered considered written reasons. At the time that those reasons were given, s 349 took a different form. It contained two sub-sections: sub‑s (1) reflected the provision as it now stands, while sub-s (2) in essence allowed for separate judgments to be delivered and provided that the Chief Justice or the senior member of the court was to pronounce the judgment that determined the question. In Ireland, the Attorney‑General relied on sub-s (2) and it was important to the dispositive reasoning of the Court on this issue. Nevertheless, the absence of that sub‑section from s 349 in its current form does not provide any basis for now adopting some construction of s 349 different from what was held in Ireland.
Not only was the argument advanced in Ireland novel, but the Court's construction of s 349 accorded, and still accords, with the ordinary understanding of the role of an appellate court in determining an appeal.
As this Court explained in Hepples v Federal Commissioner of Taxation, "[a]n appeal in proceedings of [a kind that conclude the rights of the parties] has traditionally been determined according to the opinion of a majority as to the order which gives effect to the legal rights of the parties irrespective of the steps by which each of the Justices in the majority reaches the conclusion" (emphasis added)¹²⁴. The approach in Australia¹²⁵ is not unique. It is an approach to appeals adopted in at least England¹²⁶ and the United States¹²⁷.
The appellant contends, and a majority of this Court holds, that the proviso in s 353(1) can only be applied by an act of the "Full Court", and cannot be applied where it is the opinion of only a single member of the Full Court that its application is appropriate. In the appellant's contention it follows that there was no basis upon which the order dismissing the appeal could be made. The appellant is correct that there was no majority opinion in respect of the proviso. Two judges considered that issue and divided in opinion; there was no occasion for the third member of the Full Court to consider the issue.

Application to this appeal

The appeal to the Full Court concluded the rights of the parties by the Court making orders under s 353 of the CLC Act. It was not an appeal from a judgment intended to determine an issue of law where the order on appeal must declare the majority opinion as to the issue of law, irrespective of any conclusion as to the ultimate rights of the parties, as may be the case when an issue of law is determined for the purposes of proceedings pending in a court or tribunal¹³¹.
There were two issues before the Full Court. The decision on those issues would answer the only "question" before the Full Court – which was whether the appeal against conviction should be allowed or dismissed. The issues were, first, whether the direction to the jury satisfied s 34R of the Evidence Act 1929 (SA), and second, if not, whether no substantial miscarriage of justice had actually occurred such that the proviso in s 353(1) of the CLC Act could be applied. The answers of Kourakis CJ, Gray J and Stanley J to the first issue were respectively "no", "yes" and "no". For the second issue, Kourakis CJ found the proviso could not be applied, Gray J did not reach that issue and did not consider it, and Stanley J found that no substantial miscarriage of justice actually occurred and applied the proviso. In the result, Kourakis CJ would have allowed the appeal, set aside the convictions and remitted the matter for retrial. Each of Gray J and Stanley J would have dismissed the appeal.
Gray J and Stanley J agreed about the ultimate effect that the directions had on the jury – that the jury would not have been under any misunderstanding as to the purpose of the evidence of discreditable conduct – albeit that their Honours arrived at that conclusion via different paths¹³². Because of this conclusion, each was of the opinion that the appeal should be dismissed. The Full Court was able, and required, to make an order that disposed of the appeal in accordance with the "opinion of the majority". In this case, that was an order dismissing the appeal.
The matter may be tested this way. The proviso may be considered when it is established that there has been a miscarriage of justice. As the Court in Weiss v The Queen noted, "miscarriage" has long meant any departure from the proper application of the law¹³³. The proviso asks whether, despite that departure, the result should be held to stand.
In the present case, one judge (Gray J) held there was no departure from trial according to law; there was no miscarriage of justice. One judge (Stanley J) held there was a departure from trial according to law, but the result should stand. If the ratio decidendi were relevant to the appropriate orders to be made under s 353(1) (and it is not), how would the members of the Full Court be expected to address the divergence? Would it require Gray J to go on to say that the jury was right? Or would it require Gray J to consider the proviso, despite his Honour's conclusions as to the directions?

Notice of contention and order

I agree with Kiefel, Bell and Keane JJ that the respondent's notice of contention should be upheld, and that, on that basis, the appeal should be dismissed.

Footnotes

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. ↩
Sitting as the Court of Criminal Appeal. ↩
R v Perara-Cathcart [2015] SASCFC 103 at [14], [37], [55]. ↩
R v Perara-Cathcart [2015] SASCFC 103 at [15]. ↩
R v Perara-Cathcart [2015] SASCFC 103 at [18]. ↩
R v Perara-Cathcart [2015] SASCFC 103 at [47]. ↩
R v Perara-Cathcart [2015] SASCFC 103 at [55]. ↩
R v Perara-Cathcart [2015] SASCFC 103 at [65]. ↩
R v Perara‑Cathcart [2015] SASCFC 103 at [23]. ↩
R v Perara‑Cathcart [2015] SASCFC 103 at [23]. ↩
R v Perara‑Cathcart [2015] SASCFC 103 at [24]. ↩
R v Perara‑Cathcart [2015] SASCFC 103 at [28]. ↩
R v Perara‑Cathcart [2015] SASCFC 103 at [24].

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