Perara-Cathcart v The Queen [2017] HCA 9

Perara-Cathcart v The Queen [2017] HCA 9 - HCA 2017 case summary — Zoe

[12]

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.
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 Act[3]. 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 hold**[5]** that because he was not satisfied that no substantial miscarriage of justice had actually occurred, the appeal should be allowed.
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.
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.
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.

[13]

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.
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]**.
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]**.
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.
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]**.
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.

[30]

Unlike Kourakis CJ, Stanley J considered**[30]** 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 observed**[31]** 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 held**[33]** 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.

[35]

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.
Our conclusion on this point also accords with the approach suggested by this Court in Hepples v Federal Commissioner of Taxation[37] to the appropriate course when a majority of a multi-member court "would dismiss [an] appeal but for discrepant reasons and each of those reasons is rejected by a majority differently constituted." In Hepples, the Court referred**[38]** to an appeal which, if successful, would conclude the rights of the parties as having:

[41]

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.

[48]

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.

[49]

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 CJ**[48]**, 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.
There is an air of unreality in the argument that the jury, who were directed that the issue for their determination was whether they accepted the account given by K and J as reliable, might have digressed in their deliberation upon this uncomplicated issue to use the evidence of the appellant's admitted possession of a small quantity of cannabis to conclude that he was a dealer in methylamphetamine. It is to do scant justice to the jury as "the constitutional tribunal for deciding issues of fact"[49] to suggest that the directions the jury had been given left them at risk of taking a detour from the simple and obvious path on which they had been set to reason that, because the appellant possessed a small quantity of cannabis, he was therefore more likely to be a dealer in methylamphetamine. The direct path of reasoning which was properly, and clearly, open to the jury avoided this detour into gratuitous illogicality.

[52]

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 case**[51]**.
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**[52]. If there is an equal division in the High Court's original jurisdiction, the opinion of the Chief Justice or Senior Justice prevails[53]. 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[54]. 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"[55]. 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[56]**.
Considering "[w]hat order should [it] make when a majority would dismiss the appeal but for discrepant reasons and each of those reasons is rejected by a majority differently constituted?", the High Court noted in Hepples v Federal Commissioner of Taxation[57] that, when the division of opinion amongst its members has not been equal, an appeal to it from a final judgment which concludes the legal 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". Within the meaning of s 23(2) of the Judiciary Act, the "question" to be decided according to the decision of the majority has implicitly been treated as the ultimate question of what order the Court is to make in the disposition of the appeal. That is to say, the "question" which s 23(2) says is to be decided according to the decision of the majority has been treated as the "judgment of the High Court", which s 73 of the Constitution says "shall be final and conclusive".
The holding in Hepples[58] was that "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". That holding was an application of the same underlying decision-making rule as informs the disposition of an appeal from a final judgment which concludes the legal rights of the parties. The decision-making rule implicitly treats the "question" to be decided according to the decision of the majority as the ultimate question of what order the Court is to make in the disposition of the appeal. In Hepples, it required particular attention to the substance of the question reserved which gave rise to the appeal. The question was identified as containing "not a single discrete question of law but (at least) two questions of law", each of which was answered in the order which the Court made disposing of the appeal**[59]**.
When the division of opinion amongst its members is not equal, the majoritarian decision-making rule set out in s 23(2) of the Judiciary Act is accordingly in each case applied in respect of the opinion of each member of the Full Court of the High Court as to the order that should be made by the Court. The majoritarian rule is not applied in respect of conclusions which each member has reached on issues arising in the process of reasoning to that opinion. The "question", in short, is as to the order not the reasons.
Section 349 of the CLC Act derives from s 1(4) of the Criminal Appeal Act 1907 (UK). Section 1(4) prescribed for the Court of Criminal Appeal (constituted always by an uneven number of judges being not less than three), in the determination of appeals against conviction and sentence under s 3 of that Act, a decision-making rule applicable in the event of a difference of opinion amongst the members of that Court which differed from the approach previously adopted in practice by the Court for Crown Cases Reserved (constituted by all of the common law judges, of which a quorum was five)[60].
Despite its different provenance, s 349 of the CLC Act uses language strikingly similar to s 23(2) of the Judiciary Act in providing that "[t]he determination of any question before the Full Court under [the CLC] Act shall be according to the opinion of the majority of the members of the Court hearing the case". The critical question in the application of s 349 is: what is the "question"?
In the answer lies the answer to a more specific question about whether, within the meaning of s 349, s 353(1) involves the Full Court asking and answering one question or two questions. Is there one big question as to whether the appeal against conviction should be allowed or dismissed under s 353(1) and, if allowed, as to what consequential direction should be made under s 353(2)? Or do two questions arise sequentially under s 353(1): the first as to whether the Full Court thinks that the verdict of the jury should be set aside on one or more of the three identified grounds, and the second question as to whether the Full Court considers that no substantial miscarriage of justice has actually occurred?
The answer to the critical question, in my opinion, is that the "question" to which s 349 of the CLC Act refers, like the "question" to which s 23(2) of the Judiciary Act refers, is the question as to what order the Full Court should make. The "determination of any question before the Full Court" occurs through the making of an order by the Full Court. It follows that, within the meaning of s 349, s 353 involves the Full Court hearing an appeal against conviction asking and answering a single question as to whether the appeal should be allowed or dismissed and, if allowed, as to whether what should be directed is a judgment and verdict of acquittal or a new trial.
That answer fits best with the legislative context. Section 349 is located in Div 1 of Pt 11 of the CLC Act. Plainly, the decision-making rule it lays down is applicable to how the Full Court is to determine any "question" that might arise in any of the proceedings before the Full Court referred to in each of the subsequent divisions of Pt 11. Encompassed within those proceedings is not only an appeal against a conviction or a sentence under Div 3 but also a case stated by a trial judge reserving a question of law under Div 2. The latter form of proceeding, no less than the former, relates to a justiciable controversy that is determined**[61]** in whole or in part by an order made by the Full Court in the exercise of judicial power**[62]. That usage is made tolerably clear by the distinction drawn in Div 5 between different powers given to the Attorney-General on the consideration of a petition for exercise of the prerogative of mercy. The Attorney-General can "refer the whole case to the Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted"[63]. Alternatively, the Attorney-General can "if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to those judges for their opinion and those judges, or any three of them, shall consider the point so referred and furnish the Attorney-General with their opinion accordingly"[64]**. The furnishing of an opinion by judges of the Supreme Court is in that way treated as something quite distinct from the "determination" of a "question" by the Full Court.
The answer, moreover, accords with the construction given to s 349 of the CLC Act in an earlier but materially identical form in R v Ireland[65]. "The question in an appeal", Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed, there said, "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."[66] Although expressed in the context of dismissing an application for special leave to appeal, that view of five members of the High Court is of persuasive value and may be inferred to have been implicitly accepted by the Parliament of South Australia in subsequently amending s 349 in a manner which left its current language intact**[67]**.
The answer results in s 349 conforming to the decision-making rule which multi-member courts routinely apply in Australia when there is an uneven division of opinion amongst their members. That decision-making rule is that the order of the court is made in accordance with the opinion of the majority of the members as to the order that should be made by the court. The rule is not always given statutory expression. Where the rule is given statutory expression, it is most often expressed in terms that the "decision"[68] or "judgment"[69] of the court is to be in accordance with the opinion of the majority. But, as s 23(2) of the Judiciary Act illustrates, other linguistic variations can occur**[70]**.
Section 353(1) prescribes a two-stage process of reasoning to be undertaken by the Full Court hearing an appeal against conviction. The Full Court must consider whether a point raised in the appeal has the result that the verdict of the jury should be set aside on one or more of the identified grounds. The Full Court might then, in the application of the proviso, consider that no substantial miscarriage of justice has actually occurred. The process of reasoning leads to a binary outcome, to be reflected in the order of the Full Court that the appeal be either allowed or dismissed.
Performing his or her individual duty, each member of the Full Court must form an opinion as to what order the Full Court should make and must for that purpose engage in the process of reasoning set out in s 353(1). In the event of a difference of opinion as to what order the Full Court should make, s 349 operates to produce the order of the Full Court by reference to the opinion of the majority of the members as to the end-point of that reasoning, not by reference to the opinion of the majority as to an intermediate stage.
In its application to a division of opinion among the members of a Full Court hearing an appeal against conviction in accordance with s 353(1), s 349 operates in that way to produce the sensible and workable result that the appeal is to be dismissed and the conviction is to stand unless a majority of the Full Court is of the opinion that the appeal should be allowed.
The order of the Full Court dismissing the appeal in the present case, in my opinion, correctly reflected the operation of s 349. There was, in terms of s 349, but a single question: what order should the Full Court make in the determination of the appeal? The order made was in accordance with the opinion of the majority as to the answer to that question. The appellant's principal ground of appeal to this Court for that reason fails.
The notice of contention must, in my opinion, be upheld for the reasons given by Kiefel, Bell and Keane JJ. The appeal must be dismissed.

[54]

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.
The appellant did not give evidence at trial but the jury were shown a video recording of him being interviewed by police. In the course of that interview, the appellant said that he had approached J to buy cannabis. Later in the interview, however, he accepted that the cannabis which police had found at his home was his and that he had given some cannabis to K and J. He also admitted to using methylamphetamine but said that J had provided it. The appellant denied dealing in cannabis or methylamphetamine. He admitted being at K and J's house but denied that he had ever been with K alone. He denied that he had injected her with methylamphetamine, had inserted his fingers into her vagina or had threatened to kill her.
The defence case was based on significant inconsistencies between the several versions of events given by K and J, and the unreliability of K and J's testimony due to their heavy and sustained use of drugs. The defence contended that J was the dealer in methylamphetamine and that K had fabricated the allegations against the appellant to divert police attention away from J.

[84]

The potential undue adverse impact on an accused of evidence of the accused's discreditable conduct is firmly established by previous decisions of this Court**[84]**. 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 impermissibly**[85]**. 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 evidence**[87]**. 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 follows**[88]**:

[88]

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 generality**[89]**. 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 pistol**[90]**.
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.
Apart from the evidence of K and J, however, there was no direct evidence and little inferential evidence that the appellant was a dealer in methylamphetamine. As was earlier observed, the evidence of what the appellant told police in the course of interview was that J supplied the methylamphetamine. Taken by itself, that was not an unrealistic possibility. K and J had been using methylamphetamine for more than three months before first coming into contact with the appellant. As far as the evidence went, they had had no difficulty in sourcing the drug throughout that time. Why then should it be supposed that they were so dependent on the appellant for supply of that drug that they would delay complaining to police of the alleged rape for a week after the event and then mention the subject only when J was detained on other charges? Doubts had also been raised as to K and J's credibility by the allegation of fabrication, and as to the reliability of their evidence on account of their drug use. If, however, the jury considered that it was permissible to reason that the evidence of the appellant's possession of cannabis made it more likely that he was a dealer in methylamphetamine − and, in the absence of a contrary direction, that is not unlikely − there is a real possibility that the jury would have treated the evidence of the appellant's possession of cannabis as overcoming doubts they might otherwise have had about the credibility and reliability of K and J's evidence. Indeed, the fact that the trial judge directed as he did in effect gave authority to the prosecutor's erroneous suggestion to the jury that it was open to infer on the basis of the appellant's possession of the cannabis that he was a dealer in methylamphetamine**[91]**.
The Crown contended that the obligation of the trial judge under s 34R(1) was, in effect, lessened in this case because of what defence counsel submitted to the jury in final address, to the effect that the cannabis evidence did not support an inference that the appellant was a dealer in methylamphetamine as K and J alleged; and because, in those circumstances, a direction by the trial judge as to the impermissibility of using the cannabis evidence as a basis from which to infer that the appellant was a dealer in methylamphetamine would not have assisted the appellant. That contention must also be rejected. The law is clear that no matter how comprehensive defence counsel's final address may be, it remains incumbent on a trial judge to give such directions as the law requires**[92]. Here, as in England, counsel's speeches may not be substituted for the performance of the trial judge's statutory duty[93]**.
Finally, the Crown contended that it was significant that, although defence counsel had objected to the admissibility of the cannabis evidence, he did not take exception to the trial judge's directions. But, in this case, that contention cannot be accepted either. For, regardless of defence counsel's response to the directions, s 34R(1) required the trial judge to instruct the jury as to the use which could be made of the cannabis evidence and the uses which could not be made of it. Counsel cannot concede a matter of law disadvantageous to the accused**[94]. Accordingly, as McHugh J observed in BRS v The Queen[95], trial judges have no authority to dispense with directions that the law requires them to give in criminal trials, even if defence counsel are content that they not be given. Nor is it to the point that the trial judge's summing up may have followed "the conceptual structure" of the case advanced by the prosecutor, to which defence counsel did not object[96]. If the failure to give a direction which is required by law to be given may have resulted in the conviction of the accused, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice[97]**.
It follows, as Kourakis CJ held, that the trial judge's failure to give the directions required by s 34R(1) was productive of a miscarriage of justice.

[91]

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 Ireland[100] 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**[101]. It is true that in the course of reasoning to that conclusion, Barwick CJ observed[102]** that:

[101]

In civil proceedings, reasons given in the course of refusing special leave are not binding**[121]. The position in relation to criminal matters heard before 1991[122]** 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 Ireland[123], 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 Australia**[125]** is not unique. It is an approach to appeals adopted in at least England**[126]** and the United States**[127]**.
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.
The appellant's contention that the order dismissing the appeal could not be made should be rejected. Neither the terms of s 353(1), nor the CLC Act as a whole, provide any reason why the application of the proviso in s 353(1) would, or should, be treated differently from any other appeal that is to be determined by the Full Court.
Sections 349 and 353 of the CLC Act are based on equivalent provisions of the Criminal Appeal Act 1907 (UK)[128], which, as is well known, is the origin of the common form criminal appeal statutes**[129]**. So far as my research reveals, the construction of ss 349 and 353 adopted by a majority in this case has not been suggested or adopted in any jurisdiction where the common form statutes contain equivalent provisions.
The issue concerning the appropriate orders to be made where judges are in disagreement is separate from the question of application of the proviso. In an appeal where judges' reasons are divided, an expedient must be adopted by the court to dispose of the case and give effect to, and conclude, the parties' legal rights**[130]**.

[102]

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 tribunal**[131]**.
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 paths**[132]**. 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 law**[133]**. 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?
The same problem would arise in the appeal to this Court. But for the respondent's successful contention, what order would this Court make? A disagreement in reasoning should not and cannot render a court unable to make an order. A single judge does not need support from other members of the court to reach a conclusion that an appeal should be allowed or dismissed.
That conclusion does not give Gray J and Stanley J's opinions any special status**[134]. As this Court has said of its own decisions in which there was a division of opinion, the fact that an expedient[135]** is applied does not mean that those reasons constitute a binding authority**[136]. Courts are not bound by orders made to dispose of the proceeding; it is the principles of law that are binding on courts[137]**.
It is therefore not relevant to talk about the reasoning of the individual members of a Full Court in an appeal against conviction when considering what orders could and should have been made by the Full Court. An analysis or description of that kind stops short of the final step - how the appeal against conviction is to be determined; namely, whether to allow or to dismiss the appeal, and what orders should follow.

At a glance

Court

Decision date

Before

Source

Judgment (240 paragraphs)

Perara-Cathcart v The Queen [2017] HCA 9 (1 March 2017)

Parties

Cases Cited (57)