Pedro Perara-Cathcart v The Queen [2017] HCA 9: Evidence at Trial

The High Court has today (1 March 2017) dismissed an appeal from the Full Court of the Supreme Court in the case of Pedro Perara-Cathcart v The Queen [2017] HCA 9. The case related to the use of evidence of illegal drug dealing within a rape trial and the subsequent direction relating to that evidence during trial. The appellant appealed from the Full Court of the Supreme Court of South Australia after the majority verdict to dismiss his appeal was reached as a result of inconsistent reasoning.

Background to the Case

A jury convicted the appellant of the rape of K and making a threat to kill K. the prosecution introduced evidence during the trial from K and her boyfriend J to suggest that the appellant had supplied them with drugs prior to the rape and death threat and a different drug subsequently at a later date. The trial judge allowed the evidence because they cast light on both the prosecution’s claim that the rape occurred during a drug deal as well as the appellant’s counter claim that J had provided him with drugs and that the rape allegations were concocted to deflect from J’s alleged drug dealing.

The appellant appealed to the Full Court that the trial judge had erred in his directions to the jury under section 34R of the South Australian Evidence Act. The admissibility of the evidence was unanimously agreed upon by the Full Court. However, Chief Justice Kourakis concluded that the directions did not comply with the Act regarding the permissible and impermissible use of the evidence and therefore constituted an error of law. Justice Gray disagreed and considered that the directions did comply. Lastly, Justice Stanley agreed with Chief Justice Kourakis in that the directions did not meet the requirements of s34R. However, he considered that there was no substantial miscarriage of justice because the jury must have accepted the evidence of K and J in returning its verdict, and the implausibility of the appellant’s account. Ultimately, the appeal was dismissed but for uncertain reasons.

Appeal to the High Court

The question before the High Court was whether the decision by the Full Court could be sustained given that the majority of the court agreed that there was an error of law during the trial directions but there was no majority agreeing that a substantial miscarriage of justice had taken place. By way of notice of contention, the respondent argued that the trial judge's directions to the jury met the requirements of s 34R(1) of the Evidence Act.

The High Court dismissed the appeal on the basis of the notice of contention from the respondent. The High Court agreed that the trial judge’s directions were sufficient to identify the permissible and impermissible use of the evidence in question and consequently there was no error of law. 

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Pedro Perara-Cathcart v The Queen [2017] HCA 9 and judgment summary