Perara-Cathcart v The Queen [2016] HCATrans 269 (11 November 2016)

Last Updated: 11 November 2016

[2016] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A39 of 2016

B e t w e e n -

PEDRO PERARA-CATHCART

Appellant

and

THE QUEEN

Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 NOVEMBER 2016, AT 10.04 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR S. McDONALD, for the appellant. (instructed by Ben Sale)

MR I.D. PRESS, SC: May it please the Court, I appear with my learned friend, MR D.P. EVANS, for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL J: Thank you. Yes, Mrs Shaw.

MS SHAW: If the Court pleases, we have handed to the Court our three-page outline of propositions.

KIEFEL J: Yes, Mrs Shaw.

MS SHAW: If the Court pleases, the first contention of the appellant is that on the findings which each of their Honours in the Full Court below made, section 353(1) of the Criminal Law Consolidation Act 1935 (SA), that is, the South Australian version of the common form criminal appeal provision, required the Full Court to make orders allowing the appeal to the Full Court.

Our primary position is that this Court should simply make the orders which the Full Court on its own findings ought to have made. The second issue that arises is whether, as a matter of substance, the Full Court ought to have found that there was a wrong decision on any question of law, in that the trial judge failed to direct the jury in accordance with the requirements of section 34R(1) of the Evidence Act 1936 (SA).

In respect of that issue, we respectfully agree with his Honour the Chief Justice Kourakis below, that there was the error which he identified but we also submit that there were other deficiencies in the direction that was given by the trial judge such that it fell short of what section 34R(1) requires. The third and final issue is whether, as a matter of substance, the common form criminal appeal provision should be applied. Obviously, the second and third issues are linked because the application of the proviso may depend on the respect in which it is held that the trial judge erred in his directions.

I propose to address the issue concerning the construction of section 353(1) of the Criminal Law Consolidation Act first and then to address the remaining issues concerning the substance of what section 34R(1) of the Evidence Act required in this case and, finally, the question of whether the proviso could properly be applied.

Our first contention is that, given the conclusions which each of the judges in the Full Court reached, section 353(1) required the Full Court to make an order allowing the appeal – that is, on the Full Court’s own findings, the Full Court made the wrong order.

The issue of construction that arises in the present case concerns the unusual circumstances where the Full Court splits in such a way that one judge holds that there is no error of the kinds identified in section 353(1) – in this case Justice Gray – and one judge holds that there has been an error which would, subject to the application of the proviso, require that the appeal be allowed but goes on to determine that no substantial miscarriage of justice has actually occurred such that the proviso ought to be applied – in this case, Justice Stanley – and the remaining judge holds that there has been such an error and determines that it cannot be concluded that no substantial miscarriage of justice has actually occurred – in this case Chief Justice Kourakis.

In this unusual situation, therefore, there is only one judge who, having turned his mind to the application of the proviso on the premise that an error otherwise requiring the appeal to be allowed, has determined that the proviso should be applied.

I turn to our submission in relation to the construction of section 353(1). We submit that section 353(1) is, in its terms, expressed in the form of directions addressed to the Full Court. The evident purpose of section 353(1) and its very function, we submit, is to instruct the Full Court as to what orders it, the Full Court, is to make when certain conditions are fulfilled. The various subsections of section 353 address the powers that are exercisable by the Full Court in the various different classes of appeals that are provided for in section 352(1) of the Act. Both subsections (1) and (2) of section 353 are directed to an appeal against conviction by an accused.

Subsection (2a) is directed to an appeal against an acquittal by the Director of Public Prosecutions and subsection (3a) confers powers on the Full Court in the case of an appeal against a decision on an issue antecedent to trial. We submit that the words “the Full Court” ought to be construed in a consistent sense as used throughout section 353. Subsections (2a) and (3a) are clearly empowering provisions. Their function is to confer powers on the Full Court as a whole acting as such.

KEANE J: But it does not require it to act unanimously.

MS SHAW: It does not, and that comes from section 349. That is the Full Court for this purpose:

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.

So we submit that in section 353 when it speaks of the Full Court it is clearly talking about the Full Court acting as such in allowing or dismissing an appeal. We submit that section 353(1) provides for a two-stage process. The first stage, encapsulated by all of the text up to the semicolon, is that the Full Court determine whether one of the elements of the condition for allowing the appeal is met. Consideration of the first stage produces somewhat of a dichotomy: either the Full Court is subject to the second stage to allow the appeal or it is to dismiss the appeal.

The three categories of case where the Full Court shall allow the appeal are expressed disjunctively. The condition which requires the Full Court to allow the appeal is a single composite condition comprising each of those disjunctive elements. We submit the whole of the composite condition is governed by the single verb “thinks.”

The second stage of the process provided for in section 353(1) requires that the Full Court consider, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, the appeal should still be dismissed because no substantial miscarriage of justice has actually occurred.

KEANE J: So in relation to the first part of 353(1) you say that, bearing in mind 349, there is not a question in relation to each of the grounds on which the court is asked to set aside the verdict. There is only a question as to whether the court thinks the verdict should be set aside.

MS SHAW: That is so, whether the appeal should be allowed. So, there is a majority in relation to that question.

KEANE J: To that question?

MS SHAW: Yes. So, our submission is that the – particularly the use of the expression “or” provides three separate routes to that conclusion that the appeal should be allowed. We submit that the word “notwithstanding” is important in that it directs attention to the fact that the premise for the application of the proviso is that the Full Court or a majority considers that the point raised in the appeal might be decided in favour of the appellant and that must refer back to that majority who decided that the appeal might be decided in favour of the appellant.

In our respectful submission, importantly, both stages require the making of a determination of a question by the Full Court. So, picking up the words of section 349, as your Honour has just alluded to, the view of the Full Court is to be determined by reference to the opinion of the majority of the members of the court hearing the case.

The next point we make concerning the language of the second stage is that the condition for the application of the proviso is that the Full Court is of opinion that the point raised in the appeal might be decided in favour of the appellant. That, in our submission, directs attention not to the particular reasoning or the particular description of the error in the particular case but to whether the result of the first stage analysis is that the composite disjunctive condition is satisfied.

If the majority of the Full Court finds the condition in the first stage is met the court cannot make orders dismissing the appeal unless the relevant condition in the second stage is also met. That is, unless the Full Court, meaning at least the majority, considers that given that the first condition is satisfied no substantial miscarriage of justice has actually occurred.

We submit that you need a majority, at least, at each of the two stages and the exercise required by the second stage takes as its premise a finding in favour of the appellant at the first stage. As we understand the respondent’s submissions, it is effectively contended that the Full Court is to be construed as though it referred to each individual member of the court in the respondent’s outline at paragraphs 47 and 54. It is submitted that a major problem with this submission is that the apparent purpose of section 353 is to direct the Full Court to make particular orders when specified conditions are met.

But the respondent’s construction would mean that what appear to be directions to the Full Court about the conditions for making orders, are actually directions to individual judges about how they are to decide, not what orders to make, because individual judges cannot make orders in a Full Court appeal but indicate what orders to favour. So, on the respondent’s construction, the work that section 353(1) is actually clearly in its terms intended to do is then left to the general law rule about tallying the votes.

We submit for the purposes of our construction, it is important to recall that the common form criminal appeal provision is, as this Court said in Weiss, a qualification to an otherwise generally expressed command to allow an appeal. That expression is used in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at page 307, paragraph 15. We submit it is an exceptional power to dismiss an appeal even though an error of law or miscarriage of justice has occurred which would otherwise require the appeal to be allowed. It is submitted that as such, it should be applied strictly and that the historical context of the common form appeal provisions, where the proviso was introduced in order to alleviate what were perceived to be the inflexible effects of the exchequer rule, does not suggest any reason to depart from the ordinary meaning of the words used in section 353.

In the present case in relation to the first stage, the decision of the Full Court was established by Chief Justice Kourakis and Justice Stanley, each holding that one of the destructive elements of the condition was satisfied. In relation to the second stage, the Full Court must apply the proviso if, but only if, a majority of the Full Court determines that no substantial miscarriage of justice has actually occurred. That means, consistently with section 349, that at least a majority of the court, two judges must agree that given that the condition in the first stage is met, nevertheless, no substantial miscarriage of justice has actually occurred.

As a matter of fact what occurred in this case was that only one judge, Justice Stanley, considered that given the first condition was met, the proviso should be applied. One can accept that the Full Court means the Full Court as constituted. However, for the decision to be the decision of the Full Court, there has to be at least a majority. That is the relevant condition at stage 2. The respondent - - -

KEANE J: Well, a decision on a question, there has to be a majority for a decision on a question. Against you it said, well, in a general sense, a majority held there was no substantial miscarriage of justice because Justice Gray held there was no miscarriage of justice at all because there was error, but your point is there has to be a determination of the question posed by the proviso itself, a majority determining that question, and that has not happened. So, your opponents cannot rope in Justice Gray as they seek to do.

MS SHAW: We agree with your Honour and we make the additional point that the language of section 353(1) is in terms the Full Court, having found that error – that is, the satisfaction of one of the disjunctive elements – shall allow the appeal. So the first stage is a decision to allow the appeal and the majority of Justice Stanley and his Honour the Chief Justice were therefore together as a majority required to allow the appeal unless the proviso applied.

Insofar as the argument that the respondent puts forward that they can call upon the dissenting judge, it is plain that Justice Gray found no error and therefore he was not part of the majority who did come to the conclusion that the appeal should be allowed – that is the first point. The second point is that, in our respectful submission, it would be to ignore the language of the provision, as we have said. The third point, in our respectful submission, is that the approach of the respondent is really to argue that Justice Gray would inevitably have applied the proviso so that his vote could be counted along with Justice Stanley.

Our point is of course that the application of the proviso is governed by very clear requirements as to what the judge who seeks to invoke the proviso must do, in particular make a determination in accordance with the principles in Weiss that a conviction was inevitable and make a determination that there was no substantial miscarriage of justice, even if that necessary condition was satisfied.

Our point is not the Justice Gray should or should not have considered the proviso; our point is simply that he did not and therefore he did not engage in the second stage at all and we submit because he had not engaged in the first stage by reason of his finding that there was no error of law, and therefore Justice Gray simply never addressed himself as to what was required in order for him to apply the proviso, and therefore did not consider what we submit a judge applying the proviso had to do, namely to satisfy himself of the appellant’s guilt having regard to the natural limitations upon a review of the record.

KIEFEL J: Does it follow from your submissions, Mrs Shaw, that the Chief Justice ought to have considered the second stage?

MS SHAW: No, it does not because - I am sorry. His Honour the Chief Justice did consider the second stage.

KIEFEL J: You say he did consider it but is it part of your submission that he was wrong and ought to have applied the proviso?

MS SHAW: I might be confused. Is your Honour referring to the Chief Justice or to Justice Gray?

KIEFEL J: The Chief Justice.

MS SHAW: The Chief Justice found an error law and found that because - - -

KIEFEL J: Yes, and that the proviso did not apply.

MS SHAW: The proviso did not apply because of the natural limitations that befell him in trying to decide whether or not there was a substantial miscarriage of justice when the evidence of the Crown witnesses clearly was dependent on their credibility and reliability and there were denials by the accused.

KIEFEL J: You say there is no error in that approach?

MS SHAW: We say that is the correct approach, that is, that he decided the first stage, that there was an error of law. He went on to consider the second stage and found that he could not apply the proviso. Our submission is that if the second ground of appeal is decided in favour of the appellant then this Court should substitute the orders that the Full Court itself should have made, allowing the appeal, quashing the appellant’s convictions and ordering a retrial.

I now turn to the respondent’s notice of contention and the trial judge’s directions to the jury. The respondent, in its notice of contention, contends that Justice Stanley erred in finding that the trial judge’s directions were erroneous. In response to that contention, we submit that the trial judge’s directions were erroneous for three reasons. That can be summarised as follows.

Firstly, as explained by Chief Justice Kourakis at appeal book 351 from paragraphs 15 to 17, the trial judge was obliged to direct the jury as to the permissible and impermissible uses of the evidence of the accused’s admitted possession of cannabis the week after the alleged rape. It was this admitted possession of cannabis a week after the alleged rape that was the subject of ground 1 and ground 3 of the appeal to the Court of Appeal. It was in relation to ground 3 that the issue of the directions concerning the admissibility of that evidence of a subsequent possession of cannabis were directed.

The use of that evidence was different, we submit, from the use of evidence which had as its source the testimony of the two prosecution witnesses, the complainant K and her boyfriend J. In our submission, as his Honour Chief Justice Kourakis correctly found, the jury should have been directed not to reason impermissibly that because the accused was in possession of cannabis, it was more likely that he was a drug dealer and therefore supplied methamphetamine to K and J and, on the Crown case, used that supply of methamphetamine to pressure K, the complainant, into sex. That was the use that was argued for when the objection was taken and that was the use that was put to the jury by the prosecutor.

BELL J: Am I right in understanding that the evidence of the use of methamphetamine by the appellant and such evidence as suggested that he may have been dealing in methamphetamine was admitted because it was relevant contextually to the account of the complainant and her boyfriend that the appellant had gone to their home with them to give them a sample of methamphetamine and in that way to ingratiate himself with the complainant, pressuring her for sexual favours. That was accepted. Is that right?

MS SHAW: That is absolutely correct.

BELL J: Now, the aspect that Chief Justice Kourakis picked up on was that the evidence of the police finding of the cannabis and, I think, the scales in the appellant’s home a week after the alleged offence, while a forensic issue in the trial because he proffered an account to the police that his reason for going to the home of the complainant and her boyfriend was to procure cannabis from them. So, that was the forensic issue and it was relevant, on that analysis, to know that he had a quantity of cannabis at his home seven days later because it might make it less likely that one would accept his account that he was shopping for cannabis the week before, is that right?

MS SHAW: Yes, that - - -

BELL J: So, that was the basis on which Chief Justice Kourakis understood the evidence had been admitted, and Chief Justice Kourakis said 34R(1) required the trial judge to explain to the jury that they could not use the evidence of the possession of cannabis to reason that he was likely a dealer in cannabis, therefore likely dealing in methamphetamine which, in turn, would pick up the earlier reasoning to which I directed your attention, namely, acceptance of the complainant’s account that he had come to the home offering a sample of methamphetamine in order to pressure her for sex. Is that a fair way of capturing his Honour’s reasoning?

MS SHAW: Yes, subject to two variations, namely, that the question of the reason for the admission was – there were no reasons articulated by the learned trial judge at first instance, simply a ruling, but the prosecutor had argued that the post-possession of cannabis supported the inference that the appellant was the dealer, that is, and not K - not J, that is the friend.

NETTLE J: So, a dealer in methamphetamine.

MS SHAW: A dealer in methamphetamine. So, the prosecutor had actually argued the admissibility of possession of cannabis on the basis that as between the appellant and J, it showed that J, the appellant, was the dealer. But, in relation to your Honour’s analysis of Chief Justice Kourakis’s reasoning, we agree that, in fact, his Honour found that the subsequent possession of cannabis was relevant to the jury’s evaluation of the accused’s explanation in his interview that his purpose for going to see J was to source cannabis, that is, it could make his reason less likely if the jury considered that that might throw light on that reason. But it could not be used on the basis that it supported a chain of reasoning that your Honour Justice Bell has outlined from because he has an amount of cannabis, therefore, he is a dealer, therefore, he is a methamphetamine dealer, therefore, he was the supplier on this occasion.

BELL J: Just looking at the basis upon which the evidence was admitted, if one starts by looking at the way the Crown contended for its admissibility at appeal book 11, one sees at lines 4 and following, the prosecutor referred the trial judge to the complainant’s statement, noting that the complainant gave an account concerning, as I understand it, the initial meeting, that the appellant said:

he had to take some dope, marijuana, to someone who lived near our place. When we got back to our place we smoked some more of the meth that Pedro had -

et cetera. Then if one goes further down page 11, one sees the submission that on the prosecution case the appellant was a dealer in drugs and it is put that consistent with that was the finding of the reasonable quantity of marijuana on the subsequent search of his house. Then when one comes to the ruling which as I understand it is the ruling on page 33, the trial judge says – he refers to the record of interview - this is the appellant’s record of interview - and specific questions were the subject of objection relating to the finding of the cannabis. His Honour rules that that evidence is admissible, saying “There is some prejudice” but he considers it “can be accommodated with a warning”. Then referring to the answers in the interview, he says:

They are relevant to certain portions of the complaint and, I think –

Is that J’s account?

MS SHAW: Yes, J – yes.

BELL J: Yes -

and, I think, [J’s] account, and as such tend to confirm a portion of what he –

That is, J –

said.

Is that an acceptance by the trial judge of the view that this was material that tended to support the account offered by K and J relating to the circumstances of the meeting, namely, that the appellant represented he was a person who was taking cannabis to a person who lived near the complainant and her boyfriend.

MS SHAW: I am not quite – I must confess I do not quite understand completely what his Honour is specifically alluding to. I can only revert to what the prosecutor argued, that it was supportive of their contention that the circumstances of the meeting were that the appellant was the supplier of methamphetamine.

BELL J: It, on one view, might hark back to the prosecutor taking the judge specifically to the portion of the complainant’s account of the circumstances of the meeting which include the representation that he is taking cannabis to someone who lives nearby.

The significance of it might be this, Ms Shaw, that it can hardly have been an error for the trial judge to fail to direct concerning a possible use of the evidence when that possible use of the evidence was the basis upon which it was admitted and, on one view, just as evidence of the appellant’s use of methamphetamine was admitted, notwithstanding that it is evidence of discreditable conduct, because it was bound up with the account of how these three came to meet and go to the complainant’s home, so too on that analysis it might be thought the evidence of the cannabis was being admitted for much the same purpose.

MS SHAW: There are two steps, in our respectful submission, that your Honour is raising. The first is the reasoning that, because of his possession of cannabis, does that throw light on the account of the complainant that she was told words to the effect, I am going to deliver dope to someone, but in fact he did not, without any further elaboration, does that make that more probable if, two weeks later or a week later, he has some cannabis in his house? With that chain of reasoning, is that inference available?

But the more important issue is whether or not it was available to then go on and say, bearing in mind that use of cannabis that is raised because of the complainant’s account, does that then enable the next step to be made? He is therefore a dealer in drugs generally and therefore you can reason he was supplying methylamphetamine on this occasion. That clearly is a propensity reason.

GORDON J: Well, on page 10 of the argument before the trial judge counsel for the appellant seems to concede that there is an admission that your client is a drug user and obtained the drugs.

MS SHAW: Yes. What he is there referring to is the two sources of evidence – in other words, there is evidence from the complainant and her boyfriend that the appellant was the supplier of methamphetamine - they did not use cannabis, they were not people who used cannabis, they were only methamphetamine users – and counsel was saying effectively as part of their account necessarily we cannot object to them saying that there was drug use that occurred and that he supplied the methamphetamine because that is part of the unfolding of their narrative, as his Honour the Chief Justice we submit quite rightly found.

What he was challenging was the use of the subsequent possession of cannabis to independently corroborate, if you like, or provide independent support for their contention that he was the dealer of methamphetamine, not J, as the appellant contended in his interview. The only way in which the evidence of possession of cannabis a week later could lead to an inference that he was in fact a methamphetamine dealer, not that he simply had cannabis and not that he even said, “I’m going to take some to one person today” – that is, cannabis – but he is a methamphetamine dealer.

That jump is not a natural inference. It has to be because he is a dealer of cannabis, it is more likely he is a dealer of methamphetamine, and because it is more likely he is a dealer of methamphetamine, that is relied upon fundamentally to the next step, therefore, the possession of cannabis independently supports the complainant when she says that he supplied her with methamphetamine. It is that propensity reasoning that his Honour Chief Justice Kourakis considers when he has regard to the prejudice and probative value and the fact that that is general propensity reasoning is not available as a use.

The first use, yes, it can throw light on issues of cannabis, namely, the accused’s account that he was sourcing cannabis, but it cannot be used, bearing in mind the strictures of section 34P(1) as to the need to establish that the evidence does more than simply show because he traded in or had possession of cannabis it is more likely that he was a methamphetamine dealer.

KEANE J: Why is that not all beside the point? Why is not the real issue whether it was your client who approached J for cannabis and so they met and became associated or whether J approached your client for drugs? Why is not that the issue? That is the issue which, as the trial judge said, arises on the unfolding of the Crown case. The real issue between the parties was how your client came to be associated with the complainant. That is what this evidence goes to. It goes to the likelihood that the version raised in the record of interview is true in competition with the version given in evidence by the complainant.

MS SHAW: There was no dispute between the parties that they effectively met at the Marion Shopping Centre. J did not deny that the accused might have asked him about cannabis and that he actually offered pills. So, the circumstances of the initial conversation are not the key issue. It is whether or not the accused was essentially seeking to source cannabis and in the process of that, according to J and K, in fact what he did was offer to supply methamphetamine. Now, his record of interview in that respect argues against or does not support an inference that he was going to supply methamphetamine because he denied that he ever supplied methamphetamine.

KEANE J: That is right because his assertion, made in quite a spirited way, is that he was seeking cannabis from J and that is how they came to meet.

MS SHAW: Yes, well that is how they came to converse, effectively.

KEANE J: Well, whatever. Why is that not really what – why is that not the real issue and why is not the evidence relevant to that issue and why did not the trial judge sufficiently direct the jury that they could use it to determine whether or not they accepted the evidence of the complainant and J in preference to the version given by your client on that real issue?

MS SHAW: There are two responses we make. The first is that for the reasons of Chief Justice Kourakis, yes, it could be used in the limited context of throwing light on the accused’s version. No, it could not be used for the propensity chain of reasoning to suggest that our client was a drug dealer and, therefore, supplied methamphetamine.

In relation to his Honour Justice Stanley’s reasons, namely that one could move from reasoning that because he was engaged in drug use, because there was contested evidence of trafficking, namely, this statement of the complainant that the appellant said he was going to deliver some dope, one could move then to saying, therefore, that there is a likelihood he was a dealer and therefore there is a likelihood that he did supply or offer to supply to J and K.

That was Justice Stanley’s permitted reasoning along that alternative route. We submit that section 34P prohibits using evidence of discreditable conduct which this clearly is on the basis of a general propensity to commit the offence which clearly this evidence was intended to throw light on in the sense of being a step that made it more likely that he pressured her.

KEANE J: But as Justice Stanley said, the problem with the direction, at least as he saw it and, indeed, as Chief Justice Kourakis saw it, is not that the jury were not sufficiently warned against propensity reasoning but rather that they were not told sufficiently clearly what they might actually use the evidence legitimately for. The question is, it seems, whether the trial judge did not sufficiently direct the jury that the evidence could legitimately be used in relation to determining the credibility of the evidence of the complainant and J as to how they came to have their association with the appellant as against his version.

MS SHAW: We agree with Justice Stanley that if there was a permissible use, along the lines your Honour Justice Keane has outlined, then section 34R mandated the directions and the need for those directions to be given, if that was the issue to which that evidence was directed, necessarily required not only an exposure of the chain of reasoning that would be involved, namely, because he has possessed cannabis a week later and on that day he talked about delivering some cannabis, it makes it more likely he is a methamphetamine dealer.

If that chain of reasoning was exposed, the jury - and it was put against that chain of reasoning or the accused has denied he was a methamphetamine dealer and he has given the explanation for his cannabis, that he used it for pain relief, then the jury might have been able to evaluate that chain of reasoning and whether they were prepared to adopt it.

BELL J: Ms Shaw, in the way this trial was run, did either counsel put that particular chain of reasoning?

MS SHAW: The way the trial was run, the prosecutor put to the jury that as between – based on the cannabis evidence – as between the appellant and J, it showed who the dealer was. That was the argument and it showed, effectively, joining together – and this is what we say is a difficulty – the complainant’s evidence that he told her that he was going to deliver cannabis with the accused’s admission that he had cannabis, then effectively it was argued that this supported the complainant’s version as against the appellant that he was the dealer.

BELL J: It supported the complainant’s version as against the appellant’s because she said in the initial conversation he mentioned, “By the way I’m dropping off some cannabis to some people who live near you”.

MS SHAW: Yes.

BELL J: Something that might have made that more likely to be true than his account that he was out trying to procure cannabis was the fact that a week later he had a substantial quantity of cannabis in his home. Now, that reasoning does not involve impermissible propensity reasoning of the kind that Chief Justice Kourakis was concerned about, does it?

MS SHAW: No, it does not, except it does not go to what was the key issue. The key issue was not whether he was a dealer of methamphetamine or he made that comment that day. The issue was whether the subsequent possession of cannabis a week later, which was only a quarter of an ounce, could in fact make more probable and independently support the evidence of the complainant that the appellant supplied her with methamphetamine.

So it is evidence coming from the accused, not from the complainant, that because he has cannabis subsequently it makes it more likely he is a methamphetamine dealer. It is that reasoning that Chief Justice Kourakis found was the impermissible chain of reasoning path. He accepted that the path your Honour Justice Bell has referred to, namely, the use of cannabis in a cannabis context was available but the impermissible use which had to engage in propensity reasoning from having possession of cannabis to independently supporting her account that he was the person who supplied methamphetamine his Honour considered did not and could not overcome the test of 34P, namely, that it needed to have substantial probative value and that probative value outweighed its prejudicial effect.

Insofar as Justice Stanley was concerned, his Honour focused on – and perhaps if I might for this purpose take the Court to the directions of the trial judge at appeal book 311.

GORDON J: It is the last full paragraph, is that the one to which you were directed?

MS SHAW: It commences:

The first is drug use by the accused.

So, that paragraph is the totality of the directions that the trial judge gave in relation to the subsequent possession of cannabis, bearing in mind the objection that was taken and the reason for its use. So, what his Honour does is limit the direction to drug use which, of course, was a matter in respect of which the appellant accepted he was a drug user:

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.

Now, it is not clear whether his Honour is there alluding to the evidence of K, the complainant, that he was going to – said he was going to deliver cannabis but did not, or the contested evidence that the appellant said he did not supply cannabis – supply methamphetamine, as compared to J and K.

KIEFEL J: The point that you made earlier was that by reference to the Chief Justice is that it would be impermissible for the jury to reason by reference to the possession of cannabis that he is a dealer in methamphetamines.

MS SHAW: Yes.

KIEFEL J: Is it not more likely that the jury would reason that he is a drug dealer more generally and if that is the case they are not going to discriminate between what he deals in. If it is the case that it is more likely that the jury would reason that he is generally a drug dealer, why is not the direction addressed to that in the passage you have taken us to and the trial judge’s direction sufficient?

MS SHAW: Because, first of all, his Honour does not differentiate between evidence that he was a drug dealer emanates from the accused’s admission in his interview compared to evidence that has, as its source, K and J which was contested. Therefore, its probative value in terms of its independence and its uncontested nature has a different level of relevance and significance to the jury’s deliberations than if it is coming from the complainant and J whose evidence overall in relation to the alleged rape is contested. It does not add to – it is part of their account that is not – that is under challenge and is not independently supported. So, what his Honour’s direction does is to warn the jury against the deductive logic or the deductive reasoning that because he is a drug dealer he committed - - -

KIEFEL J: That is the propensity reasoning that you are referring to, is it not? Is that not what his Honour is directing them not to undertake?

MS SHAW: In our respectful submission, no, it is directing the jury not to make the jump that because he is a drug dealer, he is guilty of the offence.

KIEFEL J: Yes, yes.

MS SHAW: He is not actually directing them at all in relation to the way in which the Crown sought to use it and the limitations upon that use and, in our respectful submission - - -

KIEFEL J: Well, you say that when he says, in that respect, this topic’s relevance is that it is intertwined with the events that occurred, that he should have added, because it goes to the credibility of the complainant and J.

MS SHAW: Well, it is more than that, for the reasons, Chief Justice Kourakis said, that where the evidence was part of the narrative of J and K as to how the events unfolded, then that direction is correct, that it was admissible, that is evidence of J and K as to their account of his activities, was admissible to put in context and explain how all of these events occurred.

KIEFEL J: That is how the jury would have understood it, you accept that?

MS SHAW: Depending on whether or not, when the expression “drug use” is adopted and contested evidence that he is a drug dealer. If they understood that was limited to the evidence of J and K, which was contested that he was a drug dealer, then for the reasons his Honour Justice Kourakis gave, that was sufficient in terms of not resulting in any undue prejudice because it was admissible and permissible for that purpose.

KIEFEL J: His Honour does refer to the contest on the evidence about the fact that he was a drug dealer, although he on one view might downplay it a little bit at the beginning of the direction.

MS SHAW: Well, the critical issue was drug dealer of cannabis or drug dealer of methamphetamine.

KIEFEL J: Your submission then hinges upon whether or not the jury are going to make that - realistically, are likely to make that distinction. You say that a direction has to be given on the basis that the jury will make that distinction.

MS SHAW: The direction needed to be given, firstly, because that was the reasoning that was argued for by the prosecutor to move from possession of drug of cannabis to proving he was a dealer generally in methamphetamine and, secondly, they need to be aware of the difference that in terms of the significance from their point of view and evaluating the evidence of K as to evidence that emanated from her, because clearly she could not support herself, and as compared to evidence that was an admission in the accused’s interview which the Crown sought to rely on to bolster her credibility, independently of her.

BELL J: There was no admission in the interview beyond acceptance of the finding of the things and the account of the use of cannabis for medicinal purposes. An inference that was open from that finding was that the appellant was involved in dealing with cannabis perhaps, and in that context his Honour’s reference to some evidence, although contested, that he was a drug dealer, might conceivably apply to that. But if one can come back to the way the evidence was used and the real issues in the case, looking at the prosecutor’s address on page 257, the prosecutor says:

The defence have put it that [J] is the dealer and that [the appellant] approached asking to buy some weed, that’s what the defence put.

Then the prosecutor invites the jury to test the likelihood of that account being the correct account pointing out, amongst other things, that this was a man who when the police searched his premises a week later had a substantial quantity of cannabis. So, at 258, line 21 the prosecutor says:

Going to their place asking to buy dope. We know he’s got it at home. We know he’s got plenty.

And the rest of it, and then the reference to the fact that he complainant and her boyfriend are not dope users and the inherent unlikelihood that the appellant would be seeking to buy cannabis from them. That seemed to be the thrust of the way the cannabis evidence was being relied upon.

MS SHAW: There are two additional points we make. The first is at 258, line 9 or point 12:

His account doesn’t sit with them being the dealer.

BELL J: With “them” being the dealer of cannabis and it does not sit with that account because he has got a lot of cannabis at his own home.

MS SHAW: If I could take the Court perhaps to page 270 of the address where the prosecutor returns to this topic in relation to the accused’s interview and says at line 26, for example, or 35 in terms of the appeal book:

We have the ounce, the kitchen cupboard, in a bowl, the ‘big pot thing’, the bedroom -

and there is reference to it being “old leaf”:

Yet, the defence would have it that he, [J], is the dealer. You will recall [K] explaining that at one stage he, the accused, was going to deliver some dope somewhere. You have that as well. On the prosecution case it is quite plain who is the dealer here and who is using these kids to his advantage.

So that, as between who is the dealer, the only allegation that was made in relation to who is the dealer by the accused was that J was a dealer in methamphetamine, not in cannabis. So clearly, that juxtaposed, a dealer of cannabis is the same or you infer who is the dealer proceeding to draw the inference of methamphetamine.

KEANE J: Ms Shaw, insofar as you are suggesting that there was an issue in the case as to whether or not your client was a dealer in methylamphetamine or whether J was a dealer in methylamphetamine rather than cannabis, what is said by the trial judge at 323 in the paragraph beginning at line 30, his Honour says the prosecutor:

said that the accused’s interview with the police just simply did not hang together. He said that when viewed overall, it just simply did not make sense. He said that what really made sense, despite what the accused might have said, was that if anyone was a drug provider, it was the accused.

Now, in relation to the distinction you are drawing between the kind of drugs that might be dealt there is not a suggestion by defence counsel at the trial that this distinction was in any way material to any issue in the case and does not the absence of such a suggestion, the absence of an application for a redirection about that, suggest that the reality is that it just was not an issue.

MS SHAW: Your Honour, in our respectful submission, it was clearly an issue for defence because it was the subject of application to exclude the evidence.

KEANE J: But not an application for a redirection.

MS SHAW: But the application to exclude it, that is, it is not admissible for the purpose the prosecutor sought and argued, it was ruled against. So the prosecutor argued it was admissible for the purpose of inferring he was a dealer.

KEANE J: Quite, inferring he is a dealer. No one is bothering about a distinction between methylamphetamine and cannabis because the real issue is whether J is the dealer or whether your client is the dealer, and what they are dealing in just does not matter because the real issue is how your client came to be in contact with these young people. Is it not significant in that regard that there was not an issue about that, that at trial defence counsel did not seek a redirection in relation to what the trial judge says at 323, lines 30 to 40.

MS SHAW: Your Honour, if I could give this example, poor as it might be, if indeed the evidence that my client, the appellant, had cannabis and it was emanating from the complainant and J, then no doubt it would not have been the subject of objection because it would have been part of the unfolding of their account. This is, if you like, an uncorroborated account of the complainant that is disputed.

The significance of the evidence and counsel’s objection was based on the fact that this is evidence that can be misused to wrongly independently support the complainant’s account that she was raped, and it is that independent support – independent source of the evidence that is the gravamen of its prejudice. It is not the issue of whether he was a dealer in methamphetamine or cannabis. It is that the Crown called upon his own admission that he had possession of cannabis to independently support the complainant’s account that he pressured her with methamphetamine for sex.

It is that prejudice that is recognised by his Honour Chief Justice Kourakis that where the evidence emanates, no matter what it was about drug use, no matter whether it was that he was the biggest dealer in South Australia, if it emanated from the lips of the complainant and J, then it necessarily was part of the unfolding of their case. What was highly prejudicial and did not have the substantial probative value was relying on subsequent possession of a quarter of an ounce of cannabis to adopt a chain of reasoning that independently supported their account that he was a methamphetamine dealer and did so on that day. That is what Chief Justice Kourakis’ directions as to permissible and impermissible use are focused on. It is not the subject matter of the evidence; it is its source.

BELL J: But that particular line of reasoning was not one that any person involved at the trial ran. If one turns to the appellant’s counsel’s address at 282, at line 13 he says:

There is no getting away from the fact that this trial has heard an awful lot of evidence about drug use, about drug dealing. He says he’s a drug dealer, she says he’s a drug dealer, he says she’s a drug dealer and the other bloke is a drug dealer as well.

Then counsel says you are not going to be able to answer that question and you do not have to, and counsel then puts the point that the one thing the jury cannot do is reason because the appellant admits to taking drugs and buying drugs that he is the sort of person who would commit rape.

I cannot just turn up at the moment, but my recollection is that when counsel made submissions about any directions that the trial judge would be required to give, counsel referred to the need for a propensity warning respecting the evidence of drug taking, and that is to be understood in the context of earlier counsel’s objection at page 10 that the evidence of the search of the property was highly prejudicial.

Having not succeeded in that, at the point that he is invited to ask for any particular direction, the direction he seeks, consistent with the way he put the matter to the jury, was that there could be no reasoning generally relating to drug use, but propensity reasoning that he is the bad sort of person that might commit a sexual offence.

It is very difficult to see that this rather Jesuitical reasoning concerning likelihood from being a cannabis dealer to being a methamphetamine dealer was a process of reasoning that was perceived by those at the trial to be in play.

MS SHAW: I do not want to repeat what I earlier said but, clearly, the prejudice of the possession of cannabis was only because of that line of reasoning. That was the only basis for the objection, namely, it supported – if it was going to be used to support that the appellant supplied methamphetamine, he was the dealer, then it was very much prejudicial and improper. Secondly, when the prosecutor said in his address, “It is quite plain he was the dealer and who is using these kids to his advantage”, the Crown case was that he had used methamphetamine to pressure the complainant for sex. Her account was that he was offering her two eight balls, that he injected her and so on. So the whole account she gave was all about pressuring her for sex and that is taking advantage of her in the context of supplying methamphetamine.

The third point we make is that clearly in relation to the way Justice Stanley and Justice Gray dealt with the use of the evidence at trial – if I can perhaps go to Justice Stanley in terms of his approach, at appeal book 360, at paragraph 35, his Honour identifies the issue we submit - - -

BELL J: I am sorry, which paragraph number?

MS SHAW: Paragraph 55 – I am sorry, your Honour – at page 360. His Honour identifies the issue being:

the evidence of the appellant’s drug use –

and repeats that topic as being the subject of the complaint in the grounds of appeal in paragraph 56, at line 43. However, the ground of appeal to which these complaints were directed, at appeal book 343, your Honours will see that the specific grounds of appeal, firstly relating to admissibility, mirrored the objections of counsel at trial, namely, the admission of the evidence of cannabis as part of the items seized at his home, and ground 3, the complaint about the directions in relation to that quantity of cannabis.

So the subject matter of this aspect of the appeal was the very evidence that counsel had objected to, not because it was inadmissible to throw light on his own account but for this chain of reasoning. So the way that Justice Stanley approached it was to firstly refer to, we say incorrectly in this respect, the subject matter of the grounds of appeal being drug use, instead of the appellant’s possession of cannabis.

His Honour, we submit correctly, referred to section 34R(1) and concluded that the directions given were adequate in relation to impermissible use of drug use for propensity reasoning and then went on to say, in particular in the last line on page 360:

The extent of the direction given in this case is confined to telling the jury that the evidence of the appellant’s drug use is relevant as it is intertwined with the events that occurred and was part of the unfolding of the prosecution case. In my view, that direction did not adequately explain the purpose for which that evidence may have been used by the jury.

That is irrespective of how the trial judge put it and in the light, no doubt, of the submissions of the prosecutor his Honour concluded or reasoned that:

The judge was required to direct the jury that the evidence explained the circumstances by which the appellant met K and J and further was evidence they could use to find he was providing drugs to K and using the provision of those drugs to pressure her for sex.

It is in that context, in our respectful submission, that it was necessary to differentiate between what was objected to, namely the admissions of the accused that he was in possession of cannabis, as compared to the account of K that he supplied her with methamphetamine and he said he was going to deliver some cannabis.

BELL J: Is Justice Stanley, in that part of his reasons, making a more general criticism of the sufficiency of the direction insofar as it is a criticism that extends to the evidence of the methamphetamine use as well?

MS SHAW: Yes.

BELL J: So his Honour is suggesting that it was incumbent on the trial judge to give a more detailed account of the use permissibly that might be made of any evidence touching on drug use, contested evidence of drug dealing and the like. Is that so?

MS SHAW: That is so and partly because, under the legislation, this is discreditable conduct. It has been used for specific purposes. It has impermissible and it has permissible purposes. Section 34R requires that the trial judge direct the jury both as to the purposes for which the evidence may be used and for which the evidence may not be used.

BELL J: I think Justice Stanley went on to conclude that he agreed with Justice Gray that the jury would not have been under any misunderstanding as to the purpose of the evidence of the cannabis - this is at 366, paragraph 67. Your point is that is still is insufficient to comply with 34R.

MS SHAW: His Honour Justice Stanley concluded correctly, we submit, at 57 that this failure to direct as to these permissible uses and, we submit, separately in relation to cannabis as compared to the complainant’s own version of methylamphetamine dealing, that is, that our client was a dealer, that it did constitute an error of law and, accordingly, there had been a miscarriage of justice and it is in the context of the proviso at paragraph 66 that his Honour concluded that the jury, if they had received that direction, would inevitably have convicted the appellant. His Honour at paragraph 66 on page 365 of the appeal book went on to say:

For the reasons explained by the Chief Justice and Gray J the evidence of the appellant possessing and trafficking cannabis was relevant and admissible.

That, of course, does not expose the fact that Chief Justice Kourakis had differentiated, which Justice Stanley does not appear to have done, between the subsequent possession of cannabis and drug use or drug dealing generally, that is, at this point, in any event.

Indeed, in our respectful submission, the reasoning of Chief Justice Kourakis – and I apologise if I appear to be reverting to his judgment at this point – but at page 351 his Honour the Chief Justice specifically approaches the question of the admission, commencing at page 350, in the context of the statutory framework of the Evidence Act, section 34P, and the need to consider both the probative and prejudicial effect under 34P and in that sense his Honour found that:

the drug trafficking allegations in the testimony of K and J –

their prejudicial effect was outweighed:

by its probative use on the forensic question of the true reason for the defendant’s initial contact with J and K.

That is on the evidence of K and J. But then his Honour at paragraph 13 turns to:

The impermissible use of the possession of cannabis . . . to reason that the defendant is more likely to be a dealer in methylamphetamine because of his possession of cannabis –

and whether or not that use and the need for that can be kept distinct from the permissible use. His Honour then reached the conclusion that the directions of the trial judge did not comply with the requirements of the legislation in ensuring that the jury were directed on the proper use of the evidence of the defendant’s possession of cannabis, not the question of J and K’s evidence that he said he was a dealer and he supplied them.

Indeed, the fact that his Honour did not give directions on K’s testimony that the defendant had spoken to her about delivering cannabis to others, his Honour considered that that was not the subject of a direction when clearly it ought to have been to draw out that this was evidence where she said that this is what the accused said but it did not happen and of course it is evidence coming from her. More importantly, his Honour found that:

The Judge did not direct the jury that the evidence of the possession of, or even trading in, cannabis could not be used as a basis from which to reason that the defendant trafficked or was more likely to trade in methylamphetamine. The general direction against reasoning that the defendant was guilty of the offence as charged because he was a drug trafficker was insufficient for these purposes.

So, in our respectful submission, that required under section 34R for the directions to distinguish those uses.

KIEFEL J: Have you dealt with your outline of submission paragraph 10, Mrs Shaw?

MS SHAW: No, I have not, your Honours, if I can perhaps come to that now? Our point about paragraph 10 arises from the construction of 34P itself and 34P in its terms - - -

GORDON J: Can I say, I must have misunderstood, I thought that what you were taking us to in the judgment of Chief Justice Kourakis was directed at paragraph 10, is it not?

MS SHAW: No, the directions. Paragraph 10 certainly includes the reasons of his Honour Chief Justice Kourakis, but it also picks up and refers to our submission as to the terms of section 34P(1) themselves, which states that:

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 -

So, we submit that here where a real question arose and it was put in issue that the discreditable conduct, namely, my client’s possession of cannabis, was relied upon through that route identified by Justice Stanley to make it more likely that he was to have committed the offence, that reasoning path is inadmissible under 34P and the jury must be directed, pursuant to 34R, that it is inadmissible - or the jury are not entitled to reason that because he is in possession of cannabis, he is more likely to have committed the offence, as compared to the simply logical jump which they were directed against, namely, because he uses drugs and there is contested evidence of trafficking, therefore, he committed the offence.

BELL J: Ms Shaw, what path of reasoning do you identify in Justice Stanley’s analysis that you say infringed the prohibition in 34P(1)(a)?

MS SHAW: The prohibition that he is more likely to have been a - if your Honour goes, for example, to the way - picking up - referring back to paragraph 56, the only way in which the jury could move from possession of cannabis to proving that he was providing drugs to K and using the provision of those drugs to pressure her for sex is to reason that because of the possession of cannabis he is therefore likely to have pressured or provided drugs to K and used that to pressure her for sex.

That is, that that was a reasoning path that is not permitted by section 34P. There is potentially a permissible reasoning path which, in our respectful submission, for the reason the Chief Justice is not correct but, importantly, 34P requires the jury to be directed against reasoning because you have this discreditable conduct proved against you such as possession of cannabis. You can rely on that to say it is likely that he, therefore, committed this offence, namely, pressured K by the provision of drugs for sex.

BELL J: That is not captured by the direction. 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.

MS SHAW: We submit that is simply logical reasoning. It does not address the question of whether something is - the accused is more likely to have done it because he has this criminal behaviour or this criminal conduct or discreditable conduct that he has admitted. One is deductive or syllogistic reasoning, the other is what 34P prohibits and, in our submission, a jury would readily see the lack of logic in just because I have got cannabis it does not mean I am guilty of rape. But the reasoning that is prohibited is reasoning because I have got cannabis, therefore, it is likely that I might have raped someone.

BELL J: You do accept, consistent with the reasoning of the Chief Justice, that it is open to reason, it is more likely that the accused committed the offence because we are able to exclude beyond reasonable doubt that his account that he met K and J when he was looking to purchase cannabis having regard to the finding of the cannabis in his home and the representation that he made to K on that occasion.

MS SHAW: With respect, we do not read his Honour the Chief Justice as holding that. We submit in paragraph 16 his Honour is requiring that the jury be directed that the evidence of possession of or even trading in cannabis could not be used as a basis from which to reason that the defendant trafficked or was more likely to trade in methamphetamine.

BELL J: What his Honour considered was that the appellant had made his independent possession of cannabis a real forensic issue and he made it a real forensic issue by asserting that he had sought to purchase cannabis from K and J. That real forensic issue stood to be determined by a consideration of whether one accepted K’s account and J’s account or whether one considered there was a reasonable possibility that the appellant’s account was the correct account.

MS SHAW: Your Honour, we submit that that – what your Honour has raised is a question which might require a direction of a jury. You have heard the evidence that the accused possessed cannabis. You have heard the complainant say that, in fact, he sourced cannabis, whether or not that throws light on that particular issue, it might be the subject of the application of the onus of proof and whether the jury were prepared to engage in the reasoning that because he had cannabis, therefore, he was more likely to have supplied methamphetamine.

His Honour Chief Justice Kourakis finds that that is incorrect reasoning, that the jury ought not to go down that path, but if it is purely a question of credibility on that initial meeting as between J and K, then clearly that is a separate issue as to that fact-finding process as compared to using the possession of cannabis generally to jump to therefore it is likely he was the dealer. That is the distinction we draw and we submit the distinction his Honour Chief Justice Kourakis draws. One is a matter of inference and contested facts. The other is engaging in propensity reasoning, and not just engaging in specific propensity reasoning, but general propensity reasoning, going from cannabis possession to a general propensity to deal and through that general propensity get that - - -

BELL J: I think we understand that, Ms Shaw.

MS SHAW: Thank you, your Honour. So - - -

KIEFEL J: I am sorry, I was just wondering whether you had finished with paragraph 10 and were moving to the next topic.

MS SHAW: Yes, thank you. So paragraph 10 in conclusion was that the statute required – 34P required a warning against that impermissible use identified in 34P and under section 34R and therefore it was a further error, or highlights the nature of the error that Justice Stanley was dealing with and why it was an error of law that precluded the application of the proviso.

If I can then come to the final part of our outline in relation to the application of the proviso. In our respectful submission, I do not need to stay with the Court as to the principles governing the application proviso, but if I can therefore go directly to the reasons of his Honour Justice Stanley, the judge who applied the proviso, in particular at appeal book 367 at paragraph 73 where at that stage his Honour had summarised the prosecution case and at paragraph 69, 366, referred to the accused’s interview and his denial of supplying methamphetamine, although not to his denial that he committed the offences.

His Honour then at paragraph 73 concludes that, undertaking his “own independent assessment”, he was satisfied that “no substantial miscarriage of justice” had actually occurred but, importantly, in line 28:

The record of their evidence, which was the subject of extensive cross-examination, is consistent and credible.

In our respectful submission, we make a number of criticisms of that conclusion. The first is that, insofar as his Honour was required to consider the whole of the record, that necessarily included the accused’s record of interview and his denials in his record of interview that he committed these offences, and his Honour could not act solely on the evidence of K and J in this respect without addressing how he disposed of, in terms of the application of the onus of proof, the accused’s denial in his record of interview.

Indeed, his Honour, as I mentioned, when he did refer to the interview at paragraph 69, did not refer to his denials that he committed the offences. Further, in our respectful submission, we submit, as we have in our written submissions at paragraph 70, that the issue is not just one of credibility but of reliability in the sense of its capacity to establish the commission of the offence to the criminal standard.

We refer to the judgment of this Court in Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at 1090, paragraph [15]. In our respectful submission, as this Court accepted in Douglass, those are two distinct issues and it could not be concluded that the conviction of the appellant in that case was inevitable unless both credibility and reliability were considered.

BELL J: Douglass was a very different case.

MS SHAW: I accept that, your Honours, but as this Court said in Gassy, where the issue of reliability looms large and we have referred to - - -

BELL J: Mrs Shaw, one of the matters that the Court is to take into account in considering the proviso is the fact of the guilty verdict. Now, in some circumstances the error will make that not a relevant consideration, as the analysis in Weiss makes clear. In other cases, it will be a relevant consideration, including in a case which has depended, as this did, on acceptance of challenged oral evidence.

Here when one looks at the nature of the error it was, on one view, that the nature of the error is, if it be accepted to be an error, a failure to comply strictly with the requirements of 34R(1) of the Evidence Act by giving a sufficiently specific instruction to the jury not to reason from the possession of cannabis in the home seven days after the alleged offence that it was more likely that the appellant was a dealer in methamphetamine.

That made more likely acceptance of the complainant’s account, notwithstanding that putting to one side the cannabis, the background of drug use and methamphetamine use seems to have been common ground to the issues in the trial and to the circumstance that the evidence of the cannabis was properly available to them to consider whether or not there was a reasonable possibility that the account of it in the record of interview was to be accepted.

That is the nature of the error, the failure to more particularly direct a line of reasoning which, as Justice Stanley suggested, concurring with Justice Gray, was one that might have been very open to the jury to understand the limited way in which this evidence had relevance.

MS SHAW: The submission about 34R, because the evidence against the accused did depend, as your Honour has pointed out, fundamentally on the jury’s evaluation of the credibility and reliability of K then, in our respectful submission, 34R and the identification of the difference between drug use, which is all his Honour talked about, and contested evidence of drug dealing, did not address that issue at all. The importance of the jury not reasoning, based on K’s evidence, for example, that he was a drug supplier – he said he was a dealer of methamphetamine – that that somehow bolstered her credibility when she said he was pressuring her for sex.

So, in our respectful submission, there was a risk of impermissible use, which Chief Justice Kourakis identified, but, more importantly, if the permissible use was spelt out it would necessarily have had to have included the alternative explanations and by exposing that reasoning, at least the accused would have been given the right for the jury to evaluate that line of reasoning and have put against it what he said in his record of interview, that he denied he was the dealer.

So the requirement to put the permissive use necessarily includes the application to the facts and, in particular, whether the jury were willing to adopt that chain of reasoning that section 34R requires that they be directed about so they can make a decision. So it is not just identifying the permissible use; it is identifying the evidence that argues for or against it and, without that identification, the accused has not had a trial to which he is entitled in relation to that very prejudicial – potential reasonable process and without having put against it what is his answer.

Your Honours, not only here insofar as the submission – I am sorry, the finding that her evidence was consistent and credible, his Honour in that context has not brought to account the significant inconsistencies between the evidence of K and that of J, in particular, the inconsistencies in relation to the way in which J said she reported the alleged rape to him.

These are set out to some extent in the judge’s summing-up at appeal book 313 to 315, and at page 317 his Honour identified the potential effect on K’s reliability and believability of the significant inconsistencies. Those significant inconsistencies as between K and J included, for example, that according to J, K had reported to him that Pedro, the appellant, had chased her around the house. J denied that and denied telling Pedro that.

Secondly, it is part of this report of the alleged rape the complainant told J that Pedro, the appellant, had tried to put his dick in her, but he did not put his dick in. Again, that was not part of the complainant’s account. It is, in our respectful submission, a significant inconsistency going to the reliability and credibility of K in relation to her account of the events that occurred and where she had made this allegation to J that Pedro had chased her around the house and yet, in evidence, said that did not in fact occur.

His Honour has failed to address the inconsistencies between J and K about that initial complaint, when credibility was critical. It was a matter – I am not going to go through all of those matters, but certainly his Honour made it the subject of a direction.

So, it was brought home to the jury how these inconsistencies, these significantly inconsistent accounts as to what happened, bore upon the reliability of the complainant’s account. In our respectful submission, this is an example of the natural limitations that an appellate court is faced with when it is addressing a matter such as this where it depends on the credibility and reliability of the account and on the face of the record the complainant’s account has shown in material ways to have exhibited that inconsistency.

So, in our respectful submission, not only was this a breach of the statutory requirements so that when one has regard to the whole record and the verdict of the jury in that respect, the failure to comply with section 34R(1) where, we submit, it did go to a central issue in the case, namely, the evaluation of K’s evidence that the accused supplied her with methamphetamine to pressure her and whether J or K was the drug dealer.

Then taking into account the verdict in that respect, we submit, is qualified by the fact that these directions were not given whether they be Chief Justice Kourakis’ or whether they be Justice Stanley and, therefore, either the jury may have engaged in impermissible modes of reasoning to reach its verdict or in terms of Justice Stanley’s findings as to what directions were not given the jury did not have the benefit of the alternative explanations for that evidence that was relied upon for that reasoning path and, of course, the trial judge’s directions did not distinguish between, in this respect, cannabis or methamphetamine.

Finally, in our respectful submission, in terms of his Honour’s application of the proviso, we submit that the distinction his Honour drew at paragraph 66 of appeal book 365, line 38, between a direction and a misdirection is not sound, that this non-directions in relation to 34R were just as significant as any – whether you call it a misdirection or non-direction and in terms of weighing up that path of reasoning and putting the alternative explanation, we submit that if the direction was given it would have had to have included the accused asking the jury to weigh up that path of reasoning in the light of the answers by the accused in his record of interview.

We submit, therefore, that the weight to be given to the verdict cannot be treated as the jury must have accepted the evidence of K because their assessment may have been affected by the failure to give those directions and because of the natural limitations that the appellate court is placed in, bearing in mind the inconsistencies outlined by the trial judge, that bore upon her evidence and we submit that this was a matter that clearly went to a central issue.

So, for those reasons, we respectfully adopt the conclusion which Chief Justice Kourakis expressed at paragraph 18 of appeal book 351, that the Full Court was not in a position to evaluate K’s reliability and

credibility on the face of the transcript and that the proviso could not be applied. If the Court pleases, those are our submissions.

KIEFEL J: Thank you, Mrs Shaw. Yes, Mr Press.

MR PRESS: May it please the Court. The respondent’s outline of oral submissions has been provided to the Court. May I ask whether I should proceed immediately or whether the Court would prefer a moment to view those?

KIEFEL J: I think you can proceed, thank you, Mr Press.

MR PRESS: Thank you, your Honour. I appreciate obviously that some of what I was going to say has already been ventilated in the course of discussion, so I will try not to traverse ground that has already been the subject of discussion. If I can, I would prefer to speak first about the notice of contention and leave the perhaps more vexed question of the proviso until the end.

Section 34R is, in my submission, clearly subject to the need to decide the real issues at the trial. I do not understand anything that my learned friend has said to question that and it is also important, in my submission, that section 34R be seen as a means of ensuring that no miscarriage of justice occurs in the course of the trial. If a direction is not required - the absence of a direction that would not lead to a miscarriage of justice, is hardly the sort of direction that section 34R requires as a matter of law.

It is important, in my submission, to first of all consider what were the issues at the trial, that is clearly a matter that has been ventilated to some degree. The jury were directed at the beginning of the summing-up to the effect that “The prosecutor and defence have made it very clear to you, the jury, you are going to have to be satisfied beyond reasonable doubt of the credibility and reliability of the complainant”. The issues in this trial were the credibility and reliability of the complainant and an evaluation of the appellant’s record of interview.

Whilst the jury were directed about reliability, in my respectful submission, in relation to the offences themselves reliability was not an issue, certainly not in the same way that it was an issue in the case of Douglass that my learned friend has referred to.

The nature of the evidence that the complainant gave, the details that she was able to give of the offence of rape and the threats afterwards, reliability, in the sense that reliability was used, was simply not an issue here. Error, misunderstanding, mistake, they were not issues at this trial. So the credibility of the complainant and obviously whether the record of interview of the appellant was a reasonable possibility, they were the issues.

As you have already heard, drugs were clearly a part of this trial. Everyone admitted having access to methylamphetamine, everyone admitted using methylamphetamine, and also the appellant admitted to using cannabis and also admitted to having access to cannabis. That access point is, as will become clearer, a significant matter because the allegation of rape was not an allegation of rape made in the course of a drug deal gone wrong, it was not an allegation of rape made in the course of a transaction relating to methylamphetamine. Everyone agreed, including the appellant, that he had access to methylamphetamine and the allegation of rape occurred in the context of her being provided with methylamphetamine by the accused.

Even on the appellant’s record of interview, he had access to methylamphetamine. This notion that methylamphetamine dealing or a finding that he was a methylamphetamine dealer, separately from all the other issues, and with all due respect to the Chief Justice obviously who found differently and to my learned friends, it simply was not an issue at the trial. It was not part of the process of the reasoning that the jury were invited to undertake and it was certainly never an issue at the trial.

I agree, with respect, that his possession of the cannabis was relevant for two main reasons. The first is it was potentially inconsistent with his reason for approaching them. Secondly, it was potentially consistent with K’s evidence that he had said to her that he had to take cannabis to someone.

That comment, that evidence about what he had said to her has to be seen in light of her evidence as to why she did not go straight to the police. She said she did not go straight to the police because she was scared of him. One of the reasons that she was scared of him was that he had told her that he was a high-end drug dealer. The evidence was not that he had told her, “I’m a high-end methylamphetamine dealer” or “I’m a high-end cannabis dealer”; it was that he was a high-end dealer. There was no attempt during the course of the trial and there was no reason to differentiate between these two aspects of drug dealing.

So the relevance of the cannabis evidence was that it assisted in the evaluation of other evidence. It assisted in the evaluation of the complainant’s evidence and it assisted in the evaluation of the evidence of the appellant’s record of interview.

In that context, the Court of Criminal Appeal had to consider what was the direction that was required or was the direction that was given sufficient to ensure that no miscarriage of justice occurred? But what was the need for specificity here. “Specificity” is simply a word I have used; it is not a word that finds favour throughout the judgment.

It has to be borne in mind there was a direction here. There was a direction given to the jury so there was compliance in that sense with section 34A. The evidence of his possession of cannabis and the evidence about drug dealing was brought to their attention and they were specifically warned about that and they were specifically told why they had heard about it. So this was not a case where no direction had been given. It really was - - -

NETTLE J: What were they told about why they had heard it?

MR PRESS: They were told that it was part of the context and part of the – let me just find the correct words, your Honour.

BELL J: It is page 311. They were part of the unfolding of the prosecution case.

NETTLE J: It would not have been of a great deal of assistance to a jury, I should not have thought.

MR PRESS: Your Honour, I am not going to suggest that some specificity greater than it was given would not have been helpful. It will often, if not always, be the case that - - -

NETTLE J: The question is whether it complied with 34P(1). To say that it is part of the context, is that sufficient to comply with the mandatory requirement that their use of it be explained?

MR PRESS: Well, in my submission, yes, because pursuant to section 34R there is a requirement to ensure that the jury – the requirement pursuant to section 34R to give directions is a requirement to ensure that there is no miscarriage of justice. So, here his Honour has informed them that it was part of the intertwining with the events that occurred. That, with respect, is obvious. It was part of the unfolding of the prosecution case. Again, could he have been more specific? I do not suggest he could not have been more specific, your Honour, it is what is the result of not having been more specific.

NETTLE J: We will get that down the track but at the moment as to whether there was compliance with 34R(1), is it the submission of the Crown that to tell the jury it was part of the context met the legal requirement that the judge explained to them the purpose for which the evidence had been admitted?

MR PRESS: In this case, yes.

GORDON J: Is that because at 282 counsel for the accused, in effect, the similarity in language is very similar between the way in which counsel for the accused put it between lines 13 and 22. Then, asked for the direction at 298 and then we get the direction at 311. Is that, in a sense, what happened?

MR PRESS: Yes, in addition to the manner in which the accused’s counsel have referred to drug dealing at the very beginning of the trial which was that it was simply part of the milieu of the offending.

KEANE J: The trial judge brings it a bit further together at 323, commencing at line 29:

that when viewed overall it just simply did not make sense.

That is the record of interview – the assertion in the record of interview as to who was the drug dealer:

He said that what really made sense, despite what the accused might have said, was that if anyone was a drug provider, it was the accused.

Then, there is reference to him being older and so forth. So, there the trial judge is dealing specifically with how the evidence bears upon the issue that is thrown up on the Crown case having regard to the defence case.

MR PRESS: Yes. And your Honour Justice Keane’s point is effectively the way in which Justice Gray went on to explain it is not just the direction itself, but it is the whole of the summing-up that has to be considered, so his Honour Justice Gray then went to other – considered the fact that it had been raised in other parts when considering whether there had been sufficient compliance with section 34R.

GAGELER J: So your notice of contention is really saying Justice Gray was right at paragraphs 46 and 47 of the judgment, is it not?

MR PRESS: Yes. And as a corollary of that that, whilst Justice Stanley was right as to every factual aspect he spoke of, he was just wrong to characterise that as either an error of law or a miscarriage of justice which then required him to consider the proviso because in the circumstances, one, there was no need for that greater specificity and, secondly, because he went on to find that there could have been no misunderstanding, that was also a relevant consideration when determining whether section 34R had been sufficiently complied with.

So, if I can get back briefly to the need for specificity. When considering whether there has been an error or considering whether there has been a miscarriage of justice, it is relevant to consider what is the direction that would have been given. The direction that would have been given here is, you have heard this evidence because it is potentially inconsistent with his record of interview and it is potentially consistent with what the complainant has said. It is difficult to see how a direction in those terms would have advantaged the appellant. Certainly - - -

KEANE J: One can understand why it was not asked for.

MR PRESS: Precisely, your Honour, with respect, its absence – perhaps I will put it in the negative. Its absence certainly did not disadvantage the appellant and in the terms of whether there has been a miscarriage of justice, there must be an evaluation of the disadvantage that the accused or the appellant suffered as a result of the direction or, in this case, the lack of specificity. I just pause briefly.

The second aspect is that these were obvious uses, in my respectful submission. Whilst the Chief Justice went on to determine that it was necessary for a reason to consider cannabis dealing separately, the Chief Justice acknowledged that these uses were obvious. Whilst his Honour did separate out the cannabis dealing from the methylamphetamine dealing - can I just invite the Court’s attention to page 348? At the very bottom of that page the Chief Justice has gone through the uses in relation to the methylamphetamine, its use, access and dealing, and his Honour has found at the very last sentence there:

However, those uses fell within the expressions “the unfolding of the prosecution case” and “intertwined with the events that occurred”. Once the impermissible propensity use was excluded –

et cetera.

BELL J: And in this respect there is the difference in approach of the Chief Justice and Justice Stanley because, as I understand it, Justice Stanley’s criticism of the sufficiency of the compliance with 34R(1) applied to the methamphetamine evidence as well as the cannabis evidence.

MR PRESS: I agree with your Honour. Justice Stanley clearly thought the lack of specificity applied to both.

BELL J: Yes.

MR PRESS: So, we do have the Chief Justice acknowledging that the use of the evidence was obvious and we have a majority then, Justices Gray and Stanley, considering that there was no reason to differentiate between the methylamphetamine and the cannabis. That might be relevant later on when we deal about exactly what must a court agree on but, clearly, in relation to the Chief Justice, in my submission, there was no reason to differentiate between cannabis and methylamphetamine and his Honour acknowledged that the direction given, whilst it could have been more fulsome, nonetheless, adequately explained to the jury why that evidence had been put before them.

If these were obvious uses, and obviously the respondent submits that they were, then if Justice Stanley was correct at page 361 - I am sorry, then the directions at page 361 referred to by Justice Stanley, starting from the fourth line down, were not necessary, then it can only be that there is a miscarriage of justice if there is a danger of misuse. Now, obviously, Justice Stanley, at page 366 determines that there was in fact no danger of misuse. That was where his Honour said in the third line of page 366:

I agree with Gray J that the jury would not have been under any misunderstanding as to the purpose of that evidence.

Now, if there was no need for greater specificity and there was no danger of misuse then, in my respectful submission, Justice Stanley was wrong to characterise this as an error of law.

He was wrong to characterise it as a miscarriage of justice and therefore the proviso had no application, in which case the appellant’s point in relation to the construction of 353 does not need to be considered because in those circumstances, Justice Stanley will have found no miscarriage and no error of law and there will be a majority of Justice Gray and Justice Stanley to dismiss the appeal.

Just before I leave this point, if I may just invite the Court’s attention to a case of Arulthilakan [2003] HCA 74; (2003) 203 ALR 259, it is on my list of authorities, at paragraph [23]. In my submission, this might be relevant to your Honour Justice Nettle’s point in relation to whether section 34R requires something more as a matter of law, even if there is no prejudice to the accused.

In Arulthilakan the trial judge mistakenly took away from the jury their right to determine whether the act of presenting the knife was an act of violence. The trial judge directed the jury that presenting the knife was, as a matter of law, an act of violence and therefore they should proceed on that basis. This Court disagreed; this Court determined whether it was an act of violence was a question of fact. So that is, with respect, withdrawing from the jury a matter upon which it is their sole to adjudicate, is not an insubstantial matter. But the Court went on to say that in the circumstances of this case:

it makes little difference. How else might such conduct have been regarded . . . In a practical sense, there was no real issue . . . Technically, there was a misdirection, but it gave rise to no miscarriage of justice.

In my respectful submission, it is an example, in one sense, how far the courts have come from determining that any error, any departure at all, will be a miscarriage of justice. I am not saying that that is on all fours with this matter.

GAGELER J: It was before Weiss, was it not?

MR PRESS: It was, and I am not suggesting perhaps that the full ramifications of determining that there was no miscarriage of justice were considered by the court. But, nonetheless, it is an acknowledgement, in my respectful submission, of the need to look at the practical issues in the trial and how significant they are in determining whether an appeal should be allowed or dismissed.

BELL J: But that is a rather different point, is it not? And it is the point captured at paragraph 2 of your outline – that is, that section 34R(1) places a legal duty on the judge to direct as to the purpose for which evidence may and may not be used, but that is not to be understood as imposing a burden on the judge to divine all sorts of possible uses that no one has suggested and direct the jury as to those matters. Very clear words would need to be used, on one view, before imposing that burden so inconsistent with a long line of authority about identifying the real issues in the trial.

MR PRESS: I agree, your Honour. I do not want to overreach the decision of Arulthilakan to give it a meaning that it does not have. It is slightly different from the point that is raised in point 2 – I agree.

The last aspect in relation to the notice of contention, and it is interrelated with the appellant’s suggestion that the proviso should not have been applied, but was Justice Stanley correct to say that there was no danger of misuse? I agree, Justice Bell, that really what the Chief Justice and what my learned friends are saying is that there needed to be a direction to the effect that, because he was in possession of cannabis, he was therefore – let me start that again – you are not allowed to reason that, because he is in possession of cannabis, he is therefore more likely to be a cannabis dealer and therefore he is more likely to be a methylamphetamine dealer and therefore it is more likely that he has committed these offences because that is consistent with the complainant.

First of all, it is worth noting, in my submission, that the direction postulated by the Chief Justice in reasonably stark terms is not in fact, with all due respect, helpful because the reality here is, where the evidence originated from the complainant, acceptance of one part of her evidence did make it more likely that another part of her evidence was going to be accepted. So talking in terms of whether something is more likely or not is not necessarily particularly helpful.

Here, however, because the evidence in relation to dealing per se was far more generalised, he had referred to himself as a drug dealer, the context in which this evidence was led was that this was a 31-year-old man with a 16-year-old girl and a 19-year-old boy talking about how dangerous he was, big noting himself. That was the context in which the evidence about him being a dealer, it was why they were scared of him and why they did not go to the police immediately after the rape and after she complained to her boyfriend.

There was never a suggestion that her evidence or her credibility should be compartmentalised in this way. There was never a suggestion that you would have to go through a process of reasoning whereby the sort of reasoning that was postulated by the Chief Justice and the sort of reasoning that is now suggested by the appellant is one that the jury may have undertaken.

This type of direction, this type of sequential reasoning which is postulated by the Chief Justice, that might arise in a completely different case. If this were a case of a man found with cannabis in his bedroom and methylamphetamine in his bedroom and there is a text message to the effect, “I will sell you a pound of cannabis,” that is all that there is.

In those circumstances where there is a direct need for the jury to separately consider whether the person has possession of the methylamphetamine and an intention to sell the methylamphetamine, there would be a need to give such a direction because there would be a real danger, a real risk that the jury might reason, he is a cannabis dealer, can we be satisfied that he also intended to sell that methylamphetamine that was in the bedroom?

The distinction between the two cases, though, is considerable. The need to direct in a particular way in some circumstances does not equate with a need to direct in all circumstances where there are different drugs. Because there was no danger of this type of sequential reasoning, because such a direction was neither sought nor advocated for by trial counsel and because it did not occur to anyone at the trial, in my respectful submission, this was a non-existent danger of misuse. There was no need to direct the jury in the matter that was - - -

KIEFEL J: Or is the other way of looking at it, on your submission, that there was no real issue at the trial?

MR PRESS: That would be a better way of describing it, yes, thank you, your Honour. So, for those reasons, in my submission, the matter raised in the notice of contention is a matter in which the Court could dismiss the appeal.

If I can now turn to section 353. This Court in Weiss acknowledged at paragraph 10 the many difficulties that the common form proviso throws up. What is the meaning, the Court asked, of words like “may”, “might” and “considers”? What would be the circumstances in which a court would not allow or would not dismiss the appeal, notwithstanding that it has nonetheless found the proviso satisfied? This Court in Baiada has since determined that there is a duty to apply the proviso if the conditions of the proviso are met. So, “may” as used in section 353, in fact, does not mean “may”, the Court will dismiss the appeal if the preconditions of the proviso are satisfied.

Section 353 on any interpretation, in my respectful submission, requires something to be read into it. I do agree with my learned friend to this extent, section 353(1) proscribes those matters that each judge must consider when determining whether to allow or dismiss the appeal. In my submission, however, the appellant’s interpretation provides for a statutory prohibition on the entirety of the independent judgment of each judge being given effect to, section 353, because it proscribes the matters that each judge must consider prior to considering whether it will allow or dismiss the appeal. I also agree with my learned friend’s outline that section 353 is anterior to the power to allow the appeal or to dismiss the appeal.

Section 353 dictates what must be considered by the Court and, in my submission, that is significant. Section 353 is concerned with the matters that each judge must consider. Section 349, however, is concerned with how a Full Court is to determine the orders it will make after those matters have been considered. After each judge has expressed his or her view of the order he or she would make, section 349 dictates how the order of the court or on what basis the order of the court will be made. Section 349, in my submission, is the statutory mechanism for determining the orders the Full Court will make and how it will dispose of the appeal.

NETTLE J: Is not the question before the Full Court whether there has been a miscarriage of justice?

MR PRESS: That is one of the questions. Does your Honour - in respect of this matter?

NETTLE J: Yes.

MR PRESS: Yes.

NETTLE J: And that is answered by a majority, yes, there has been a miscarriage of justice.

MR PRESS: I am sorry, your Honour, I misspoke. I should have answered no. The question is not whether there has been a miscarriage of justice. The question is whether to allow the appeal. In my submission, certainly it is necessary to separate out section 349 from section 353, but when looking at what does the question mean in section 349, there has been a recent, or within the last couple of years, amendment to the Criminal Law Consolidation Act which allows for two judges to sit on the Full Court instead of the normal three, and I provided to the Court earlier section 357(4). Perhaps if I could just invite the Court’s attention to that now.

NETTLE J: Thank you.

MR PRESS: The Court will see under subsection (3):

The Chief Justice may determine that the Full Court is to be constituted of only 2 judges for the purposes of any appeal to the Full Court –

That includes sentence appeals and conviction appeals. That was introduced in 2013. More significantly, however, subsection (4) goes on to talk about how the court would decide the orders it will make. It does not use the term “question”, which is the term that is used in section 349. It refers to:

The decision of the Full Court when constituted by 2 judges is to be in accordance with the opinion of those judges –

Now, in my submission, 357(4) and 349 have to be read as meaning the same thing. There cannot be a difference between what the Full Court must be in agreement about depending on whether there is two or three.

KEANE J: But the opinion of two judges is necessarily unanimous.

MR PRESS: That is true, your Honour.

KEANE J: If they are not, and it has to go to a court of three, then why would not 349 then operate to direct how the reconstituted Full Court will determine the case?

MR PRESS: Procedurally, I have no issue with what your Honour has just said. The relevance - - -

GORDON J: Is not your point more directed at the orders rather than the reasoning to get to the orders?

MR PRESS: Yes, and because section 357(4) talks about the decision of the Full Court, that is directed, in my submission, to the disposition of the appeal. The decision of the Court is to be determined – the decision of the two judges is whether they would allow the appeal or dismiss the appeal.

So the opinion of the judges to determine the decision must be – “the opinion” means whether to allow the appeal or dismiss the appeal. So, if under 357(4) “opinion” is a reference to whether to allow the appeal or dismiss the appeal, then “question” in 349 must mean the same thing. It cannot be that there is a difference in the way that the court will determine – will determine its orders depending on whether there are two or three judges.

NETTLE J: Surely the position is that notwithstanding 357, the Full Court must allow appeal. They are directed they “shall allow” if they consider that there is a miscarriage of justice, unless they are of the view that there has been no substantial miscarriage of justice. Now, this Full Court was, at least by majority whether rightly or wrongly, of opinion that it was a miscarriage of justice. Section 357 has nothing to do with that. They have not even started to get to anywhere near 357. They have to go now to the proviso and decide whether there has been a substantial miscarriage. The only question is whether you can aggregate Justice Gray on the basis that he did not find a miscarriage and Justice Stanley on the basis he did but he found there was no substantial miscarriage.

MR PRESS: Your Honour, if my learned friend’s reasoning is correct, I cannot fault what your Honour said.

NETTLE J: Well, I am pointing to you to make a sort of comment or response. Surely that is what the words say, do they not?

MR PRESS: Well, with respect, my learned friends acknowledge that within section 353 they have to insert the words after “Full Court” “or a majority thereof” because the Full Court is the Supreme Court constituting three judges.

NETTLE J: You accept that it must be a majority, surely.

MR PRESS: With respect, your Honour, it is a matter of when do you look at what the majority is? By inserting “majority” into 353, I agree the appellant has made the question whether there has been a miscarriage of justice. But if the court does not insert the majority – sorry, let me slow down. If the court does not insert, either into the definition of “Full Court” or immediately after the words “Full Court” “or a majority thereof”, then section 353 read literally is saying that three judges shall allow the appeal if it – being if three judges think that the verdict of the jury should be set aside. So even on - - -

NETTLE J: That has never been the law.

MR PRESS: I agree, your Honour, but the point I am poorly making is that a literal reading of section 353 cannot be undertaken because a literal meaning of “Full Court” and then its later reference to “if it thinks” would require all three judges to think that the verdict of the jury should be set aside on the ground that it is unreasonable or there is a miscarriage. And 349 we know says, well, no, that is not the law, as your Honour correctly states. It is the majority decision. The crucial factor here is what is the question under 349 and when does “or a majority thereof” have to be considered? My learned friends insert the words “or a majority thereof” and by doing so it defines what the question is.

KIEFEL J: Is it very complicated, though? Do you have to read section 353 with section 349? “Full Court” therefore means when it determines any question it must be a majority that determines the question. What is the question under section 353? It is whether or not to allow an appeal or to dismiss an appeal. When does it allow it? When the Full Court thinks that there is a miscarriage or considers there is not a substantial miscarriage. It has to be the majority that is thinking and therefore allowing, is it not?

MR PRESS: I agree, your Honour, that it is the majority.

KIEFEL J: But the thought process that is identified is that of the Full Court defined in section 349 and it goes to the determination of whether the appeal be allowed or dismissed. Whichever way you look at it, it has to be the majority.

MR PRESS: I agree, your Honour, but by inserting the words “or a majority thereof” into section 353, it means that it is the Full Court or a majority thereof that think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported. So that then requires a majority to be satisfied of either one of the three criterion in section 353 or perhaps even something more specific, the actual ground which is the basis for suggesting that there has been an error of law.

GAGELER J: So your point is that section 353(1) in terms of section 349 raises one question to which there is a binary outcome – either allow the appeal or dismiss the appeal – and it is only when the three judges have individually reasoned to an outcome that you apply 349 to determine whether you get a majority wanting to dismiss or a majority wanting to allow.

MR PRESS: Correct, and to do that I acknowledge on the respondent’s interpretation words have to be read into 353 and in my submission the words that need to be read into 353 – I will take the Court to the section at the very beginning:

The Full Court on any such appeal against conviction shall allow the appeal if it thinks - -

In my submission, “it” has been altered by the appellant’s submission to be three judges or a majority thereof. The respondent’s submission is that “it” in fact means a judge of that Court.

KEANE J: But on your submission, 349 should not read “The determination of any question”; it should simply read “The determination of any appeal”.

MR PRESS: Your Honour, 349 is broader in its application because it also deals with a case stated. Pursuant to the Criminal Law Consolidation Act there is the means to state a case to the Full Court on a specific question of law and so there is a reason – let me start that again. Section 349 is in the same terms in terms of subsection (1) as it was in 1935 when it was enacted. Subsection (2) has since been repealed in 1974 but the question has a broader meaning or is capable of having a broader meaning than just allowing the appeal because of the fact that there is this power to state a case on a particular question.

KEANE J: But even in relation to appeals, you have, for example, 352(1) where:

(a) if a person is convicted on information-

(i) the convicted person may appeal against the conviction . . . on any ground that involves a question of law alone -

So that the provisions that are concerned with appeals in the strict sense, or the narrow sense, that is dealt with under Division 3 and 352, even there it is contemplated that there is to be - there may need to be identification of questions because you only have an appeal as of right on questions of law.

MR PRESS: Well, the fact that there is an appeal as of right on a question of law, in my submission, that does not dictate what is the question referred to in 349 because “question” in 349 will necessarily depend on the nature of the appeal before the court. The matter of Hepples, which is on the list of authorities, it might be convenient if I just take the Court to that. Can I just take the Court to page 550? This was an appeal from the Administrative Appeals Tribunal and it was directed at specific questions of law that were required to be answered so that the proceedings could proceed in the Appeals Tribunal.

The court, at the bottom of 550, and over the page under 551, determined that – I will just allow the court to read that - what will be obvious, what will be the question will be the nature of the appeal. In a case where it is a case stated I accept far more – makes far more sense that the question will be the question of law that has been stated to the court. That is the reason that the jurisdiction of the court has been enlivened.

With an appeal against conviction, the reason that the jurisdiction of the court has been enlivened is to determine whether the appeal should be allowed or the appeal should be dismissed. It is that question which has engaged the jurisdiction of the court. It is that question which is the most significant to the parties.

That interpretation is far more consistent, in my respectful submission, with section 357(4) which talks about the decision of the court having to be determined based on the opinion of the two judges, the opinion obviously being whether they would allow the appeal or dismiss the appeal. The decision is whether to allow the appeal. The opinion could only, therefore, relate to the members of that court and what they consider to be the proper disposition of that appeal.

We both submit something has to be read into section 353. In my submission, the respondent’s submission is firstly more consistent with 357(4), it is consistent with the fact 353 is directed at what must be considered rather than the making of orders, and it is also consistent with the decision in Hepples v Commissioner of Taxation.

At this point there are two aspects about the appellant’s argument that it is important to point out, in my submission. The first is my learned friend submits that their interpretation allows for consistency of approach throughout the section. In my submission, it does not. One only needs to turn to the next section, 353(2). Reading in what the appellant says, that would be:

Subject to the special provisions of this Act, the Full Court –

or a majority thereof:

shall, if it –

“it” being the Full Court or a majority thereof:

allows an appeal against conviction, quash the conviction –

A majority does not quash the conviction. That is the order of the court. The order of the court is the order of the whole of the court. It is not an order of a majority of the court. Each judge determines what he or she would do and at that point the majority reasoning dictates what the Full Court will do as a court.

KEANE J: But that is because under 353(2) the Full Court in that provision is not determining any questions. It is obeying the statute in disposing of the appeal.

MR PRESS: Your Honour, I agree, the only point I am raising in relation to this is that the appellant says on their interpretation the Full Court will have a consistent meaning throughout and, in my respectful submission, that is wrong because it is not the majority of the Full Court that quashed the conviction, it is the Full Court that quashes the conviction. It quashes the conviction because the Full Court pursuant to 349 has allowed the appeal because a majority have said to allow the appeal. But order quashing the conviction comes after 349 dictates how the question is to be determined and that question is whether to allow or dismiss the appeal.

KIEFEL J: What do you say about the two-stage approach which Mrs Shaw has argued for by which there are two questions. The first question is regardless of - the first question is whether a majority would allow the appeal but that is always subject to the two-stage approach to the proviso, but you would need two. You would need a majority for the proviso to overcome the first question.

MR PRESS: In my submission, that argument is predicated upon the majority having to be agreed - - -

KIEFEL J: No, I am sorry, I should differentiate there. Mrs Shaw was arguing for a two-stage approach but for the members of the court to be in agreement about the particular basis for it but if one puts that to one side and just focuses upon whether or not the question is whether to allow the appeal for any reason the approach would be that if there were any two members of a three member court or two of a two member court would allow the appeal for any reason, that would be the determination of the question. But that is subject to the proviso so that if there were a majority - if there were two judges who would dismiss the appeal because of the – I am sorry, who would allow the appeal because of the proviso, that would overcome the answer to the first question, would it not? Is that an approach that you would adopt?

MR PRESS: If section 353 is directing each judge of that court must consider – it will not be necessary for each judge to go through a two-stage process. Unless I have misunderstood the point your Honour is making, and I daresay I may have, describing a two-stage process - - -

KIEFEL J: At the end of each judge’s reasons, the judge says, “I would allow the appeal” or “I would dismiss the appeal”.

MR PRESS: Yes.

KIEFEL J: But within that there is a process by which there are two questions being put. There are two questions posed by section 353.

MR PRESS: There are two aspects.

KIEFEL J: And the judge is taken through it. So the first question is: is there a basis for allowing the appeal? The judge answers that question. The judges might not agree about the process but that would be the answer to the first question for each judge. You would have a majority in relation to that and the second question is whether or not in any event the appeal should be dismissed because there is no substantial miscarriage of justice.

MR PRESS: I disagree with that proposition. The artificiality of requiring a judge who has found no error to consider the second stage - - -

KIEFEL J: I am sorry. You are quite right there. What one is looking for is whether or not the court has answered the second question and that can be any of the members of the court have answered the question in the majority for the second question.

In my submission, that directs attention to what is the meaning of the question and, in my submission, the question is not whether each of those stages is answered in a particular way. The question pursuant to section 349 is, “I would allow the appeal. I would dismiss the appeal.” That is the question that 349 is directed towards. So, because in my submission 353 is simply directing what each judge of the court must consider - - -

BELL J: Why would one not read where there is reference to the command of 353(1) that:

The Full Court on any such appeal . . . shall allow the appeal if it thinks –

one of three things. That must surely be a reference to the Full Court comprising all three judges or a majority. Once one reads it in that way, where one has a majority of judges concluding that one of the three grounds is made out, the court is required to allow the appeal and the only circumstance in which the court might not be permitted to do that is if the proviso is made good.

MR PRESS: Your Honour, if it is correct to insert “or a majority”, I cannot disagree with what your Honour is saying. It would make perfect sense. But our disagreement is - - -

BELL J: The suggestion that one is reading words in, the provision speaks in terms of the Full Court in a statutory context in which any question determined by the court where there is a division of opinion falls to be determined by the majority, it is perhaps putting it too high to talk of reading in, as opposed to simply giving it the construction which the structure of the act commands.

MR PRESS: Your Honour – and I do not mean this in a pejorative sense – part of the attraction of the appellant’s argument is its apparent simplicity and I acknowledge that. But that simplicity, in my respectful submission, is very superficial. It is superficial because, firstly, it would be inconsistent with the manner in which the High Court in Hepples considered the decisions of the court will normally be made. It is inconsistent with the fact that section 353 is directed towards the things that must be considered before any order is made. In my submission, that is the significant aspect.

BELL J: But it is a command about how that decision is to be taken and that is a distinction, on one view, from the suggestion that one reads this as just a series of steps that the court is to walk through before coming to a determination.

MR PRESS: I accept that 353 speaks about “shall allow the appeal.” But, in my submission, 353 is far more directed at what will be considered by the court when it comes to determine whether to allow the appeal and whether it determines to allow the appeal will be by majority. In one respect, your Honour, it is the difference between – my learned friend’s interpretation is that the requirement under section 349 is effectively read into, inserted into, 353 to give it meaning and to give it practical application. Or it is the respondent’s submission, which is yes, something has to be read into section 353, but it is not section 349 – not at that point.

KIEFEL J: That might be a convenient time. The Court will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL J: Yes, Mr Press.

MR PRESS: Thank you, your Honour. I am mindful that I estimated one to one and a quarter hours and so I will truncate the last two aspects of my submissions. The last point will be just dealing with the implicit finding of Justice Gray but before I get to that if I can just finish off on the interpretation of section 353. Clearly, I will not labour any of the points I have made already.

Can I just ask that the Court consider these four consequences if the appellant’s construction or interpretation, however it is to be defined, is adopted? The first thing is it might be thought that in the circumstances of this case to have required a retrial where two judges were prepared to dismiss the appeal is contrary to at least one of the purposes of the proviso and that is to prevent needless retrials. So their construction is inconsistent with that.

Secondly, the artificiality of the process required of Justice Gray, as I understand my learned friend’s argument, it is not that Justice Gray is out of the equation. It is not that he – because he has found no miscarriage that he, therefore, is not allowed to look at a proviso as I understand my learned friend’s argument, it is that he then has to separately engage in an argument or a consideration of the proviso.

There are a number of questions that the court might ask itself. Is Justice Gray to consider both the error identified by the Chief Justice and the error identified by Justice Stanley? Is Justice Gray forced to agree with the nature of the error identified because it is only the nature of the error that then allows a consideration of its potential impact?

Is there any meaning in requiring a majority to be agreed on the proviso? If there is no agreement as to the error itself and the nature of the error, how was Justice Gray supposed to embark upon that process of reasoning? I will not quote from Justice Dixon in the case of Riverina - it is at paragraph 58 of my outline. I would simply invite the Court’s attention to the difficulties inherent in asking someone who does not believe there is an error to then assess the impact of a presumed error on the jury.

KIEFEL J: Mr Press, could the matter be approached in this way, that section 353(1), because there is a proviso operating, there might technically or strictly be said to be two questions in 353(1): whether the Full Court thinks that the verdict should be set aside and the second question is whether it considers there is any substantial miscarriage of justice. Because it is a proviso, one looks first to the proviso question and sees if the Full Court as a majority has considered that there is no substantial miscarriage. If there is a majority of that view in accordance with section 349, the appeal is dismissed. That is how it would operate in this case, would it not?

If that was not the case, if there were no such scenario, you would go back to the first question but is not this case determined on that basis, that you look at whether there has been a consideration that there is no substantial miscarriage of justice, there is not a majority, therefore there is no dismissal. Can you work back that way?

MR PRESS: It is difficult before the judges identified the error and determined whether that error in fact constitutes an error of law or a miscarriage of justice to then start talking about whether that error has not caused a substantial miscarriage of justice. Your Honour, it is possible.

KIEFEL J: I only draw it to your attention. I know that you are trying not to go over what you have already submitted and I do not intend to require you to do that.

MR PRESS: Your Honour’s point does lead nicely to the third point which is how to define the question and your Honour put back to me what has been put by my learned friend, that the question is whether the verdict of the jury should be set aside. That is contained in their reply, I think it is at point 3 of their reply and it was repeated today. The problem with that as being the question is that whether the verdict of the jury should be set aside does not relate to each of the three criteria. If the court reads section 353(1):

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 –

That is the whole of that sentence, so it is - and then the section goes on:

or that the judgment of the court before which the appellant was convicted should be set aside –

So one criterion is 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.

KIEFEL J: I think we understand the argument that is put against - I was really just putting to you whether or not this particular appeal could be determined on that basis. I do not think we need to revisit the appellant’s argument.

MR PRESS: I am sorry, your Honour. I meant that in terms of one of the consequences of their construction is the question that they have identified is an incorrect question.

KIEFEL J: I see. Yes, I understand.

GORDON J: You mean because it lacks specificity?

MR PRESS: No, your Honour, because the “verdict of the jury should be set aside” is the first part “on the ground that it is unreasonable or cannot be supported”. So it is not necessary for the court to consider should the verdict of the jury be set aside “on any ground there was a miscarriage of justice”? On any ground that there was a miscarriage of justice is a separate and distinct criterion.

They have picked out the very first part of the first criterion and said that is the question to be answered in relation to all of them, but whether the verdict of the jury should be set aside has no role to play in determining whether the judgment of the court, before which the appellant was convicted, should be set aside. If any support for that is required, your Honour Justice Gageler determined that that was the proper construction that I have just given in Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 at paragraph 48.

So their argument is based on a false premise that this is where the agreement has to be. So the court is entitled to ask itself, well, if that is wrong, what is it that the court is going to be agreed upon? If it is just any one of the three criteria, what could happen is there are three grounds of appeal - one is unsafe and unsatisfactory if I can paraphrase it, one is an error of law, and the third is a miscarriage of justice for whatever reason.

One judge determines that there was insufficient evidence and the jury should not have convicted, dismisses the other two. The next judge determines that there has been an error of law, but the other two have been dismissed. The third judge decides that there is a miscarriage of justice, but dismisses the other two grounds of appeal. Each judge determines the appeal should be allowed. The appeal, however, has to be dismissed because there is no majority in relation to any one of the three criteria.

If it was to be thought that this scenario, or that the scenario that has been posited by my learned friend is preferable, in my respectful submission, the scenario that I have just posited which is a direct result of their interpretation is a far more unpalatable one, the idea that every member of the court would allow the appeal and yet it has to be dismissed, because there is no majority decision in relation to any of the one – sorry, any of the three criteria within section 353(1). That is a consequence of their interpretation.

KIEFEL J: Now I have taken you away from Justice Gray. Is the difficulty in relation to trying to add in Justice Gray the fact that we must necessarily infer that his Honour has not had regard to the whole of the record?

MR PRESS: Your Honour, that proviso does not stipulate that that must be done. The proviso stipulates that that must be done in circumstances where a miscarriage of justice has been identified. That is why it is necessary to go to the whole of the record. If it is accepted that it is the sole right, imperative, of the jury to reach a verdict, for a judge who has determined that there has been no miscarriage of justice, I think the court, with respect, is entitled to ask itself why would we require a judge who finds no miscarriage of justice to go back and determine for himself or herself that nonetheless they are satisfied that the appellant is guilty.

KIEFEL J: But is his Honour really determining that there is no substantial miscarriage of justice in that sense or his Honour is really determining that there is no error.

MR PRESS: That is true, your Honour, but it is implicit, in my submission, because all that the proviso requires is that the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. One cannot find no miscarriage of justice without also implicitly being satisfied that no substantial miscarriage of justice.

I would ask the Court to bear in mind that the terms of the proviso consider, not makes a specific finding, consider that no substantial miscarriage of justice has actually occurred. I cannot – with respect, the Court might think it is difficult to reconcile a finding that no miscarriage of justice has occurred without also being satisfied that no substantial miscarriage of justice has occurred. So, in my submission, implicit in Justice Gray’s finding of no miscarriage of justice is that no substantial miscarriage of justice – my argument is no more complicated than that.

KIEFEL J: Yes, thank you.

MR PRESS: I just finish then on the point 5 in my learned friend’s outline of oral argument and it deals with why Justice Gray cannot be regarded as part of the majority. In relation to the first question, I ask the court to ask itself why, why cannot it be equated? There are no fixed rules as to the application of the proviso. This Court has stressed time and time again that what is important are the words of the proviso and all that is required is that the court considers no substantial miscarriage of justice. It does not require in every single case the court to go through - I loosely term the preconditions for the application of the proviso. That is because the application of the proviso - in some instances it simply will not be necessary to do that. This is one of those cases.

In relation to paragraph 5b, again, in my submission, the court might ask itself again, why. Bear in mind this two-stage process has been postulated, the first part of it, if read as a whole – the second part of it, sorry, is that the Full Court may notwithstanding it is of the opinion that the point raised in the appeal might be decided in favour of the appellant. To try to separate out the two stages is not to read the section as a whole, in my respectful submission. There is no requirement that there be, as my learned friends have said, a majority in relation to each aspect.

Then the third point, Justice Gray did not address himself to the issues required to determine whether no substantial miscarriage of justice had actually occurred. That presumes that the issues raised by the proviso are identical in each and every matter and that is to read into the proviso words that are not there. All that is required, as I have said, is that court considers that no substantial miscarriage of justice has occurred.

So if by c my learned friend means Justice Gray did not consider the nature of the impact on the jury or the whole of the record, of course he did not but there was no need for him to do so because the proviso does not require that. In relation to a, b and c, in my respectful submission they are no answers to the respondent’s point that implicitly Justice Gray has found no substantial miscarriage and there is a majority. Unless the Court has anything further, thank you.

KIEFEL J: Thank you. Mrs Shaw, anything in reply?

MS SHAW: Just two matters, your Honours. Firstly, in relation to the submission that it was argued that a trial judge does not have to give directions as to every conceivable use of discreditable conduct evidence pursuant to section 34R(1), we would reply that here the trial judge’s directions were limited to drug use and dealing that was part of the unfolding of the prosecution case and intertwined with the events that occurred, namely the evidence of K and J.

The evidence of the subsequent possession of cannabis was not part of the unfolding of the prosecution case or intertwined with those events and the trial judge’s directions referred to drug use and alleged drug trafficking in relation to that intertwining. So, in our respectful submission, here section 34R(1) did require a direction as to the possession of cannabis after the events in question, not known to J and therefore necessarily having a different subject matter for the purposes of the direction and that therefore this was discreditable conduct evidence not covered by the direction and section 34R(1) covered the matter.

Secondly, in relation to my learned friend’s submission, as we set out in our reply we do not contend that Justice Gray ought to have gone on and considered the proviso. We make two points: one, that he did not, but secondly, that the construction of section 353 is limited to the two-stage process where the decision that is first made of the Full Court, as that is explained by 349, is that the Full Court thinks, that is, “it thinks” referring to the Full Court, that is the first decision that is made and that then commands that Full Court to allow the appeal unless of course the second stage is overcome.

The wording of the second stage refers back to that first stage, in particular “notwithstanding’ necessarily is dependent upon the same court moving to the second stage and the reference to “notwithstanding” that the point raised in the appeal might be decided in favour of the appellant does not contemplate that another judge who had nothing to do with the first stage, has had no role in the point that was raised, can then participate in the decision to, or the next question to be determined, namely, the application of the proviso.

So, in our respectful submission, the words “it thinks” in the first stage clearly govern all three elements and refer to the Full Court, as it is explained in section 349. So, in our respectful submission, unless the section as it currently stands does not permit a judge who has not been involved in the first stage, and secondly, as at the second stage does not address the question of whether or not there is no substantial miscarriage of justice, but more importantly here, Justice Gray simply did not do that.

NETTLE J: Ms Shaw, can I just ask you a question, not on the facts of this, but let us say there is a Court of Criminal Appeal of three judges, two of them identify an error constituting a miscarriage of justice, but they are two different errors. One judge says it is one thing, one says it is another. Both of them go on then to consider the proviso and each of them independently based upon his perception of the error comes to the conclusion that there is no substantial miscarriage of justice. What should the order then be?

MS SHAW: That the - if they both decide there is no substantial - - -

NETTLE J: Well, one decides, “I found an error but I don’t consider that it constitutes a substantial miscarriage of justice”. The second one says, “Well, I found a different error but I don’t think that that constitutes a substantial miscarriage of justice”. What order should the court make?

MS SHAW: And there are only two judges?

NETTLE J: Well, there is a third judge who finds no error at all and he is wrong about that, let us assume.

MS SHAW: So there needs to be a majority at both stages and there is not a majority at the second stage on the question there is no substantial - - -

NETTLE J: Well, each have found that there is no substantial miscarriage but with respect to different errors. Have I made it clear? There are two judges in the majority. Each of them finds an error but they each find a different error.

MS SHAW: Yes.

NETTLE J: They then each go on to consider the application of the proviso by reference to the error that they have identified, and conclude independently that there is no substantial miscarriage. What order should the court make?

MS SHAW: Well, if they both decide there is no substantial miscarriage of justice then the appeal would be dismissed.

NETTLE J: Even when they are based on different errors?

MS SHAW: That is right.

NETTLE J: Thank you.

MS SHAW: Yes, because they are two separate questions and the next question, having got to that second stage, it would mean that they have both decided by a majority that – or those two judges because that is all that is needed – that there is no substantial miscarriage of justice and the appeal would be dismissed.

NETTLE J: Thank you.

KIEFEL J: Thank you. The Court reserves its decision in this matter and adjourns to 9.30 am on Wednesday, 16 November in Sydney.

AT 2.36 PM THE MATTER WAS ADJOURNED