Jeremy Gans, ‘News: The High Court Splits Three Ways on Three-Way Splits’ (1 March 2017).

The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia on the use of evidence of illegal drug dealing within a rape trial. A jury convicted the appellant of rape and making a threat to kill against K. During the trial the prosecution led evidence from K and her boyfriend J that the appellant had supplied them with methylamphetamine prior to the rape and death threat incident, and marijuana at a later date. The SASCFC held that both K and J’s evidence was admissible in the appellant’s trial because they cast light on both the prosecution’s claim that the rape occurred during a drug deal instigated by the appellant and the appellant’s counter-claims that J had provided the methylamphetamine and that K had concocted the rape allegation to deflect police attention from J’s alleged drug dealing.

The SASCFC split, however, on the adequacy of the trial judge’s directions to the jury under s 34R of the Evidence Act 1929 (SA), which provides that a judge ‘must … identify and explain [to the jury] the purpose for which the evidence may, and may not, be used’. Kourakis CJ held that the trial judge had erred in failing to give the jury proper directions on the evidence of marijuana possession, specifically whether the prosecution excluded the possibility that the appellant’s associations with K and J was for the purpose of procuring marijuana from J, and would have ordered a retrial. Gray J held there was no failure to give the directions as required by the provision — the jury would have understood it as a piece of circumstantial evidence from which, with other evidence, it could conclude the appellant was a drug dealer and used that position and supply to influence K — and dismissed the appeal. Stanley J agreed with Kourakis CJ that the trial judge erred, but held, however, that no substantial miscarriage of justice had occurred 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 SASCFC dismissed the appeal on the basis of Gray J and Stanley J’s positions, though a majority (Kourakis CJ and Stanley J) did find that the trial judge had made an error of law in directing the jury. Before the High Court the appellant sought to argue that the proviso (holding that a trial judge made an error of law but that it did not occasion a substantial miscarriage of justice) cannot be applied to dismiss an appeal where only one judge (and not the Full Court) has come to that conclusion, and, in the alternative, that Stanley J erred in applying the proviso in this case.

A majority of the High Court dismissed the appeal (Kiefel, Bell and Keane JJ, Gageler J, and Gordon J, Nettle J dissenting) on the basis that the trial judge adequately directed the jury. Consequently, the proviso question did not need to be determined by the majority judges.

The plurality (Kiefel, Bell and Keane JJ) held that the ‘real issue’ in the appeal was whether K and J’s testimony was reliable, and specifically whether the appellant’s assertion that J supplied the drugs consumed by the appellant created a reasonable doubt as to the reliability of their testimony (at [55]). For the plurality, this did not require an elaborate explanation to the jury to ensure that it appreciated what kind of use of the admission was permissible and what was not (at [56]). Here, s 34R required directions sufficient to ensure that the jury understood that it would be permissible to use the appellant’s admission for determining whether the prosecution’s case was reliable, notwithstanding the appellant’s attack on that case (at [57]: here, that was readily understandable, and did not (contrary to the conclusions of Stanley J) require a direction that the admission could be used to reason to a conclusion that the appellant was a methylamphetamine dealer (at [59]). Instead, it was sufficient for the trial judge to direct the jury against reasoning that because there was evidence that the appellant was a drug dealer that it was more likely he committed the offences (at [62]), and contrary to the concerns raised by Kourakis CJ that the possession evidence could not be used to suggest the appellant was a drug dealer, there was nothing to suggest that the jury would use the admission for this impermissible purpose (at [59], [66]). Given that the trial judge did not err in directing the jury, the plurality dismissed the appeal.

The plurality also addressed the issue of the application of the proviso, noting that had the issue about the adequacy of directions not been raised in the respondent’s notice of contention, that their Honours would have allowed the appeal on the proviso issue (at [49]). For the plurality, the text of s 353 raises two questions in relation to applying the proviso, both to be answered by reference to the opinion(s) of the majority of that court: first, whether the Full Court ‘thinks that the verdict of the jury should be set aside’ on any one or more of the grounds stated; secondly, whether the Full Court ‘considers that no substantial miscarriage of justice has actually occurred’ (see at [38]). The ‘single question’ approach (asking generally whether the appeal should be allowed or dismissed) does not give effect to the text of s 353 and its purpose of structuring the application of the proviso (see [48]). Here, the Full Court’s dismissal of the appeal could not have been sustained by the judgment of Stanley J alone, as there was no Full Court majority that considered that no substantial miscarriage of justice had actually occurred, as required by the text of s 353 (at [39]), and thus the appeal before the High Court would have been allowed (again, but for the central issue of the jury direction in this appeal).

Both Gageler J and Gordon J, in separate judgments, disagreed with the plurality and Nettle J’s interpretation of s 353, but agreed with the plurality’s reasoning on the jury direction issue in the respondent’s notice of contention.

After laying out the principles and difficulties of decision-making by multi-member courts and the relations between questions, orders and reasons illustrated in the High Court in s 23 of the Judiciary Act 1903 (Cth) (see [72]ff), Gageler J noted that s 349, like s 23, accorded a central place to the term ‘question’. Gageler J read the interaction between ss 349 and 353 as raising one question, rather than two, that focused on a binary answer of allowing or dismissing the appeal (at [83]):

The ‘determination of any question before the Full Court’ occurs through the making of an order by the Full Court. It follows that, within the meaning of s 349, s 353 involves the Full Court hearing an appeal against conviction asking and answering a single question as to whether the appeal should be allowed or dismissed and, if allowed, as to whether what should be directed is a judgment and verdict of acquittal or a new trial.

For Gageler J, this construction was supported by the legislative context, earlier relevant case law, and the practice of multi-member courts throughout Australia (see at [84]–[86]). While answering the single question of s 353 involves a two-stage process of reasoning, the result is a binary outcome of either allowing or dismissing the appeal: s 349’s operation is to produce the order of the court by reference to the majority opinion on the end-point of that process of reasoning, not the majority’s opinion at a stage within that process (at [87]–[88]). Consequently, for Gageler J the appellant’s first ground fails: here, the SASCFC’s order was in accordance with the majority opinion on answering the question in s 353.

Gordon J emphasised that the plurality and Nettle J’s interpretation made the focus of an appeal the specific reasons of a court, rather than its orders; an approach contrary to the purpose and procedure of appeals (at [137]). The text of s 353, particularly the reference to an appeal ‘against conviction’ makes it clear that the analysis is directed at the orders of the court (that is, to convict the defendant): see [139]–[142]. Like Gageler J, Gordon J held that the ‘question’ to which ss 349 and 353 were directed is whether to allow or dismiss an appeal against conviction (see at [143]ff). Here, the conclusions of Gray J and Stanley J, despite their different paths of reasoning, ended at the same conclusion and formed the opinion of the majority of the Court (see [156]). Gordon J noted that this does not give their opinions any ‘special status’: ‘Courts are not bound by orders made to dispose of the proceeding; it is the principles of law that are binding on courts’ (at [160]). The reasoning of individual members remained irrelevant, and the final step remained how the appeal against conviction was to be determined, namely, allowing or dismissing it (at [161]).

Nettle J, in dissent, would have allowed the appeal, holding that the trial judge erred in directing the jury and that this occasioned a substantive miscarriage of justice, and agreeing with Kourakis CJ’s reasoning on both points. For Nettle J, Kourakis CJ’s approach to the cannabis evidence was correct: its relevance was to throw doubt on the appellant’s statement to police that he approached J to source marijuana, because the jury could have reasoned that the appellant’s possession of marijuana made it less likely that he would have approached J to buy more, and instead that he sought to buy methylamphetamine from J, as J alleged (at [112]). Nettle J also agreed with Kourakis CJ’s observation that evidence of marijuana possession was not in itself probative of whether the appellant was a methylamphetamine dealer (at [113]). Turning to the requirements of s 34R on jury direction, Nettle J also agreed with Kourakis CJ’s conclusions that the trial judge needed to explain to the jury the specific permissible use of the marijuana evidence (that is, going to the veracity of the appellant’s statement to police), rather than in the ‘facile and enigmatic terms’ of the evidence forming part of the “unfolding of the prosecution case” or being “intertwined with the events that occurred”: this approach fell well short of explaining the particular permissible and impermissible uses that was required here, and was a miscarriage of justice (see at [115]–[119], [125] and see [120]ff on the Crown submission on excusing non-compliance with s 34R). On the substantial miscarriage of justice question, Nettle J again agreed with the approach of Kourakis CJ, holding that the proviso could not be applied because the prosecution case relied on the acceptance of K and J’s testimony: it was impossible for the Court of Criminal Appeal to evaluate from the transcript, and it is impossible to say whether a jury properly directed in accordance with s 34R would have entertained a reasonable doubt about K and J’s credibility (at [126]). Nettle J concluded with some observations on the SASCFC majority’s reasoning against a substantial miscarriage of justice (see at [127]ff).