BURTON v Police - [2004] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BURTON v POLICE
Judgment of The Honourable Justice Perry
11 June 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
COMMENT AS TO LACK OF MOTIVE TO LIE
The appellant was convicted in the Magistrates Court on eight counts of indecently assauting two young girls - during the course of his reasons for judgment, the trial magistrate posed the rhetorical question "Why would they make a complaint about a totally innocent man?" and made other comments in a similar vein - held that there was a real risk that the magistrate had adopted an impermissible process of reasoning - appeal allowed - conviction quashed.
Palmer v R (1998) 193 CLR 1; R v Uhrig (unreported) CCA (NSW) 24.10.96, BC9605087; R v E (1996) 39 NSWLR 450, considered.

BURTON v POLICE
[2004] SASC 167
Magistrates Appeal: Criminal

PERRY J. The appellant appeals from his conviction in the Magistrates Court sitting at Port Adelaide, on eight counts of indecent assault.
The alleged assaults took place over a period of three days, between 29 and 31 March 2002. Those dates encompass the Easter weekend, the first date being Good Friday.
The alleged victims were two young girls, who were sisters. I will call them A, then aged 11 years, and B, then aged 9 years.
The two girls lived with their parents at Lucindale. The offences were alleged to have occurred at the home of the victims’ aunt, who is their father’s sister. She lived in a house at Ottoway with the appellant, her de facto partner.
The two girls alleged that the assaults occurred after they and their parents had travelled from Lucindale to stay with their aunt over the Friday, Saturday and Sunday nights. All of the offences are alleged to have occurred in a bedroom in which there was a computer, at which they were at the relevant times playing games.
Several of the offences were said to have taken the form of touching of the area of the breast by the appellant by placing his hand under the victim’s top and rubbing her across the breast.
The other offences were alleged to have occurred when the appellant is said to have placed his hand under the back of the victim’s pants, followed by rubbing with his fingers of the top of the buttocks, and on one occasion rubbing also on the stomach.
The victim’s parents were at home, together with their aunt, at the time of the alleged offending.
The girls made no complaint at the time, and returned to Lucindale with their parents on the following Monday.
Later that week, one of the girls heard her parents discussing the possibility of another trip to their aunt’s house. She then told her mother that she did not want to go there again, and explained the reason why.
When the mother spoke to the other child, she supported her sister.
As a result, the mother took both girls to the Mount Gambier police station the following day, which was the Friday after Good Friday.
The girls were interviewed by a police officer.
About a fortnight later, the appellant was interviewed by police officers at Port Adelaide police station.
As for the incidents alleged to have occurred on the Friday evening, the appellant maintained that at the relevant time the family, including the two girls, were at the house of another aunt at Mitchell Park.
He admitted being present in the house on other occasions when the two girls were in the room with the computer, but he denied any indecent touching.
The appellant gave evidence at the trial and maintained his denials.
However, his suggestion that on the Friday evening the family had been at Mitchell Park rather than Ottoway was thrown into doubt when mobile phone records were produced which suggested that the family, including the appellant and the two girls, were in fact at the appellant’s house when the first of the offences were alleged to have taken place.
At the conclusion of the hearing, the trial magistrate gave ex tempore reasons in support of his findings that the appellant was guilty on all counts.
He said in effect that he found the evidence of the two girls convincing, but that he found the appellant to be evasive when giving evidence and unimpressive in cross examination.
The trial magistrate accepted the evidence of the two girls, notwithstanding the fact that he found that there was no corroboration of their evidence.
However, the girls’ mother had given evidence that over the weekend in question she had seen the appellant touching the two victims in what she thought was an inappropriate way. When she spoke to the girls’ father about it, he told her that she was “over reacting”.
Alleged victim A wrote up a diary described as a “Bubble Girl” diary, which was tendered at the trial. In the diary, she made entries relating to the appellant in terms such as “I hate the dumb bastard”, “it’s the bastard’s fault”, “I hate the fucking bastard”.
The diary was not a contemporaneous document, but had been prepared during or after a course of some twenty sessions of counselling which followed the alleged offences.
I do not go further into the evidence given at the trial, as it will be seen that I propose to remit the matter for a re-hearing.
Only one ground of appeal was pursued before me. That was:
“2.That the Learned Magistrate erred in his application of the onus and burden of proof.”
That ground of appeal was advanced by reference to two passages which appear in the trial magistrate’s reasons for judgment.
In the first passage, the magistrate observed that A’s evidence was, in his view:
“... totally unrehearsed. It was totally spontaneous.”
He went on to say:
“What Mr Wells [counsel for the appellant] says in relation to that, is that he submits, is that we do not know, that is the court does not know, of the unknown intervener, namely the counselling and what effect counselling, and we heard there were twenty plus counselling sessions, have had on both [A] and ... [B]. But one asks questions deeper than that. Why would they make a complaint about a totally innocent man? It is not for the defendant or anyone to explain away that question. That is a question that is posed rhetorically.” (emphasis added)
The second passage is as follows:
“There was tendered before the court P5, which was ... [A’s] ... Bubble Girl diary. That was a diary that was never meant to be or clearly never contemplated to be shown to the court. The prosecution were unaware of it. It was only through the searching and proper, if I may say, proper cross examination of Mr Wells. But having elicited details of it having been written down, the diary, it was produced, I pose another rhetorical question. Why would a young girl write such things in P5a such as ‘I hate the dumb bastard’. ‘It’s the bastard’s fault.’ ‘I hate the fucking bastard’, and continuing further abusive remarks towards the defendant. This is about a man who has never touched her in any indecent way at all. It was certainly raised during the defence case, and again, I say the onus is upon the prosecution to prove its case.”
Another passage in the trial magistrate’s reasons, not expressly referred to by Mr Kane, who appeared for the appellant on the hearing of the appeal, is as follows:
“I then return to the issue of P5 the ‘Bubble Girl’ diary. As I have already said, this is another matter where I am satisfied it confirms that ... [A] ... strongly dislikes the defendant. Mr Wells submits this is no doubt due to counselling. But I find it incomprehensible that a young girl hates her uncle, because of counselling which she received some 20 times, when in fact there was no indecent touching of her at all. For that scenario to have even the remotest bit of cogency, one would have to state that it would follow with that reasoning that ... [A] .has deliberately told lies about being touched. Her lies have not been detected by anyone. Further she has gilded the lily all the way along, but then through some searching cross-examination a document was produced that she never expected to be produced. I agree with Sergeant Bradfield, namely that if there is going to be an attempt by someone to falsely implicate an innocent man, then why not make allegations that include touching down near the vagina area. Why not say the touching occurred in fact at the opening of the buttocks, but no, she hasn’t gone that way. I am satisfied that what she did was to tell the truth.” (emphasis added)
Mr Kane submitted that, notwithstanding that the trial magistrate reminded himself on several occasions during the course of his reasons for judgment that the onus of proof remained on the prosecution throughout, the passages to which I have referred raised the “real possibility” that in the mind of the trial magistrate:
“... the veracity of the complainants derived support from the learned magistrate’s reasoning that as there was no proven motive for the complainants to lie, there was no reason for them to lie.”
In support of that contention, Mr Kane relied upon observations made by the High Court in Palmer v R.[1] In that case, in their joint judgment, Brennan CJ, Gaudron and Gummow JJ observed:[2]
“... a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished.”
[1] (1998) 193 CLR 1 at 9.
[2] Ibid at 9.
Palmer concerned a case where the accused was asked during the course of cross examination whether he could suggest any reason why the complainant would invent allegations against him.
No such question was asked in this case.
However, I do not think that matters. It would be equally objectionable, even when no such question has been put to the accused in cross-examination, for a trial judge to invite the jury to take into account against the accused the fact that there is no apparent motive for a complainant to lie.
An analogous situation arose in R v Uhrig.[3] In that case, the accused was alleged to have made an incriminating admission to a third party. The trial judge invited the jury to consider a Crown submission that there was no apparent reason for the third party to lie about the matter.
[3] Unreported, NSW Court of Criminal Appeal, 24 October 1996, BC9605087.
Hunt CJ at CL pointed out in the course of his judgment in that case,[4] that to ask the question “why would the witness lie”:
“... invites the jury to speculate ... to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict.[5] In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case.”
[4] Ibid 16.
[5] R v E (1996) 39 NSWLR 450 at 464.
Hunt CJ at CL said elsewhere in his judgment in that case:[6]
“The rhetorical question ‘Why would the witness lie?’ implies its own answer, that there is no apparent reason why the witness would lie. That leads the jury to infer that, there being no apparent reason, there was in fact no reason, and then to conclude that, as there was no reason to lie, the witness must be telling the truth.”
[6] Ibid 15.
With respect to the trial magistrate’s comments relating to the diary, there perhaps is a difference, in that evidence of a changed attitude on the part of a complainant towards the accused following an alleged indecent assault may be admissible as an item of circumstantial evidence. But it is an item of evidence which ordinarily would need to be treated with a good deal of caution, as even if there is no other reason advanced in the evidence, a jury should ordinarily be warned that they should allow for the fact that there may be unexplained reasons for such a course of conduct.
However, in this case, it seems to me that looking at the trial magistrate’s statements of which the appellant complains, there is a real risk that he followed an impermissible line of reasoning. In my view, that risk is not entirely displaced by the suggestion by the trial magistrate that the first question was posed “rhetorically”, or by his repeated references to the onus of proof.
For these reasons, there is a serious risk that the trial miscarried.
I would allow the appeal, quash the conviction and order that the matter be re-listed for hearing before another magistrate.
I so order.
I will hear the parties as to costs.