Doe v R

[2008] NSWCCA 203

New South Wales
Court of Criminal Appeal

CITATION:	DOE v R [2008] NSWCCA 203 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 June 2008
JUDGMENT DATE:	2 September 2008
JUDGMENT OF:	Spigelman CJ at 1; Hidden J at 2; Latham J at 3
DECISION:	Appeal dismissed
CATCHWORDS:	Conviction appeal - sexual assault offences - circumstantial case as to identity of offender - alleged admission by accused to acquaintance - acceptance beyond reasonable doubt of that witness essential to proof of guilt - whether comment suggesting that the witness had "no axe to grind" capable of being understood by the jury as "Why would he lie?" - whether summing up compounded alleged error.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	F (1995) 83 A Crim R 502 R v Uhrig CCA 24 October 1996 South v R [2007] NSWCCA 117 R v Davies NSWCCA 8/12/94 E (1996) 39 NSWLR 450 R v Uhrig NSWCCA 24/10/96 R v Graham NSWCCA 2/9/97 Guirguis NSWCCA 29/11/96 Jovanovic (1997) 98 A Crim R 1 R v AH (1997) 98 A Crim R 71 Palmer v The Queen (1998) 193 CLR 1 Robinson v The Queen (1991) 180 CLR 531 R v Smith [2000] NSWCCA 468 R v Fuge (2001) 123 A Crim R 310 R v Ray (2003) 57 NSWLR 616 Wilson v R [2006] NSWCCA 217 Boulattouf v R [2007] NSWCCA 102 South v R [2007] NSWCCA 117 R v El-azzi [2004] NSWCCA 455 R v Keir [2004] NSWSC 964 R v Walters [2002] NSWCCA 291 R v Brotherton (1993) 29 NSWLR 95 R v Coe [2002] NSWCCA 385 at [118] R v Colby [1999] NSWCCA 261 R v Herring NSWCCA 24/11/98 BRS v R (1997) 191 CLR 275 BRS v R NSWCCA 5/3/96 R v Browne, Moorehouse & Blewitt NSWCCA 27/11/87 R v WRW [2001] NSWCCA 466 [67] R v Brownlowe NSWCCA 30/3/94 R v Downey NSWCCA 16/12/92
PARTIES:	Appellant - Aisson DOE Respondent - Regina
FILE NUMBER(S):	CCA 2007/00002921
COUNSEL:	Appellant - SJ Odgers SC Respondent - J Dwyer
SOLICITORS:	Appellant - S O'Connor Respondent - S Kavanagh (Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/41/0103
LOWER COURT JUDICIAL OFFICER:	Conlon DCJ
LOWER COURT DATE OF DECISION:	13 April 2007

2007/00002921

SPIGELMAN CJ
HIDDEN J
LATHAM J

2 SEPTEMBER 2008

Aisson DOE v REGINA

Judgment

1 SPIGELMAN CJ : I agree with Latham J.

2 HIDDEN J : I agree with Latham J.

3 LATHAM J : Aisson Doe appeals against his conviction after trial on four (4) counts of Sexual Intercourse without Consent pursuant to s 61I of the Crimes Act 1900 and one count of Indecent Assault pursuant to s 61L of the Crimes Act. There is no appeal against sentence.

4 The narrow focus of the appeal renders it unnecessary to relate the circumstances of the offences in any detail. Of particular relevance to the appeal is the evidence of a critical witness in the Crown case, Justino Mulima, to whom the appellant made a disputed admission. The trial advocate’s comment, namely, “there is no suggestion that Mr Mulima had any axe to grind with the accused at all”, is said to give rise to a miscarriage of justice, in that the remark was equivalent to “why would he lie?” : see F (1995) 83 A Crim R 502 ; R v Uhrig CCA 24 October 1996 ; South v R [2007] NSWCCA 117. In summarising that submission, it is said that the trial judge compounded the error.

5 The appellant’s very experienced counsel at trial sought a number of re-directions, but took no issue with the trial advocate’s comment, or this particular aspect of the summing up. Rule 4 therefore applies.

Mr Mulima’s Evidence and his Relationship to the Appellant

6 It was the Crown case that Mr Mulima was in the company of the appellant at approximately 4 am. on the day of the offence (31 January 2004) outside Dicey Riley’s Hotel in Wollongong. At that time, the complainant was walking to a friend's house, having left the Hotel Illawarra where she was drinking with friends. She saw two men standing next to a taxi, one of whom (Mr Mulima) got into the taxi, which drove off. The appellant stayed on the kerb outside the hotel, spoke to her, then volunteered to accompany her to her destination. Shortly afterwards, according to the Crown case, the appellant sexually assaulted her.

7 Mr Mulima gave evidence at trial that he went to Dicey Riley’s Hotel at about 9 p.m. on the evening of 30 January, where he saw the appellant, who was known to him as Emos. Another person, by the name of Alex was also there. The three men went from the hotel to the Blue Note Nightclub, then on to the Harp Hotel. Mr Mulima left the appellant’s company at that stage. He later went back to the Blue Note Nightclub where he again saw the appellant, who asked him to buy him some drinks. Mr Mulima did so. Mr Mulima then left the nightclub and made his way home, passing Dicey Riley’s on the way, although he could not remember catching the taxi.

8 Mr Mulima first met the appellant at Dicey Riley’s and had seen him a couple of times before 30 January 2004. Mr Mulima was, like the appellant, of African origin. The appellant told him he was from Liberia, that he was a refugee, living in Osborne Street, Wollongong with his wife and children. The appellant had given Mr Mulima his mobile phone number, which Mr Mulima had written on a piece of paper. About a week after the date of the offence, the police (having traced Mr Mulima through the taxi company) obtained that mobile phone number from Mr Mulima and found that it was registered to the appellant's wife. The police first spoke to the appellant on 13 February 2004.

9 Thus it was that the police were able to locate the appellant as the person of interest in their enquiries. In that regard, the evidence “identifying” the appellant as the offender was circumstantial. The descriptions given by the complainant and various others who had seen the complainant’s assailant were generally consistent with the appellant’s appearance, although there was some dispute about the length of the appellant’s hair and the absence of facial hair. However, the appellant’s defence at trial was that he was not the offender and he had not been with Mr Mulima on the night of the offence. It was not in dispute that the appellant and Mr Mulima knew each other, or that the appellant had told Mr Mulima of his personal circumstances and provided him with his wife’s mobile phone number.

10 It was against this background that the evidence of the admission assumed considerable significance. Towards the end of February, Mr Mulima again saw the appellant at Dicey Riley’s. The appellant said "We need to talk". Mr Mulima went with the appellant to a quiet corner of the hotel. The appellant asked him if the police had come to his house. Mr Mulima replied “Yes they did, what did you do that night?" The appellant replied "I didn't do anything, I just touched the girl." The appellant then told Mr Mulima that he was being accused of rape.

11 In answer to a question in cross-examination suggesting that he was confused and mistaken about being in the appellant's company on the night of the offence, Mr Mulima replied :-

Well that day’s the only day I've been out with him, it's only that day because he was not my friend, he was just somebody I met once and we are trying to be friends, you know, so that's the only night, even I would say I didn't go out with him, he just follow me.

12 It emerged in cross-examination that Mr Mulima had spoken to the appellant in late December 2004 at a hotel and in August 2005 at a shopping centre. They exchanged greetings and Mr Mulima asked the appellant when the case was to be heard.

13 The cross-examination of Mr Mulima concentrated on his unreliability, stemming from his intoxication on the night of 30 January, some discrepancies between what he told the police of his movements that night and his evidence, and the fact that he related to police the conversation with the appellant containing the admission for the first time when he signed his statement in September 2004. Some attention in cross-examination was also given to the fact that this conversation occurred in a hotel when Mr Mulima had been drinking alcohol. However, it was also put to Mr Mulima in cross-examination (and denied) that the conversation containing the admission did not happen. When the appellant came to give evidence, he denied that he had been in Mr Mulima’s company that night and he denied that the conversation containing the admission had ever occurred.

The Context of the Prosecutor’s Remarks and the Judge’s Directions

14 The trial advocate’s address summarised the evidence in chronological sequence, including the evidence given by Mr Mulima. After dealing with the various descriptions of the appearance of the assailant, compared with that given by Mr Mulima of the appellant's appearance at that time, the trial advocate said :-

You will recall that police had gone to the accused's home and you have heard the evidence of Const. Dark, Detective Rosette and you recall that Mr Mulima gave evidence to the effect that some weeks after this, that is some weeks after he had seen the accused at Dicey Riley’s, he was there and again he said the accused was more by way of an acquaintance with him. There is no suggestion that Mr Mulima had any axe to grind with the accused at all and he said the accused approached him , again in Dicey Riley’s - and we know that Dicey Riley’s is pretty much just around the corner from Osborne St, we know on the evidence of a number of witnesses that the accused on occasion went out to have a social drink … however on this day at Dicey Riley’s he approached Mr Mulima and Mr Mulima told you of the conversation that he had with the accused. [Here, the conversation is quoted.]

Ladies and gentlemen, just in relation to that issue, and you will see that it is an element of all the charges on the indictment that it was [the accused] who on 31 January and so on, it is an element that the Crown has to prove and it really is in my submission the nub of this case. In my submission on the evidence you would be satisfied beyond a reasonable doubt, if you accept the evidence of Mr Mulima, that it was the accused who was with [the complainant ] on that night, he went back with [the complainant] to Rowland Avenue and on the Crown case who sexually assaulted [the complainant] in the ways that she described to you and in relation to that all important issue you would be satisfied beyond a reasonable doubt that it was the accused, no one else, it was the accused who was with [the complainant] that night.

15 The trial advocate’s address occupied seven pages of transcript. The appellant’s counsel’s address immediately followed. After making some preliminary remarks about the onus of proof, the appellant’s counsel spent one third of his address (six and a half pages of 17 pages of transcript) on the necessity for the jury to be satisfied beyond reasonable doubt of knowledge on the part of the offender that the complainant was not consenting. The evidence of the complainant was discussed with a view to demonstrating that it was a reasonable possibility that the person who had sexual intercourse with her did not realise that she was not consenting. Counsel then turned to the evidence relied upon by the Crown to prove the allegation that the appellant was that man. Mr Mulima entered counsel’s address at this point.

16 The appellant's counsel’s submissions on the subject of Mr Mulima's evidence occupied three pages of transcript :-

The Crown case depends on Mr Mulima. You have to accept what he says beyond any reasonable doubt because he is the link, he is the link. The Crown say that themselves. If not for him there is no link between the accused and the offence. He says he knows the accused. He does know the accused, we are not denying that, the accused says it.
[Counsel then reviews Mr Mulima’s evidence about the night of the offence.]
Mr Mulima says that he is later on seen by the accused at a hotel on some date that he can't nominate and he has a conversation with the accused. This is a conversation that he apparently recounts to the police over six months later in his September statement. The accused in his evidence says there was no such conversation. The accused says, as we know, "I wasn't with him" and secondly, "this conversation that he talks about did not take place."
The Crown relies on Mr Mulima. There is perhaps a couple of things worth bearing in mind about Mr Mulima’s evidence.
[Discrepancies between Mr Mulima’s evidence and the first account he gives to police are then noted.]
So if this witness Mr Mulima had this very clear recollection of what had happened or supposedly happened with him being in the company of the accused at Dicey Riley’s, Blue Note and the Harp and back at Blue Note, why fail to mention those and only talk about being at Dicey Riley’s and at Club 53 at Piccadilly? You might think his recollection in those early days about things was not very reliable but he is not prepared to accept that now. He has come up or he has got a very clear account but it doesn't sit with what he said to the police at the time and no amount of torturing the facts will get it fixed. That is the problem, that is one of the problems with Mr Mulima.
[Next, Mr Mulima’s description of the accused’s appearance on the night of the offence was revisited.]

When pressed about it, it is revealed that that apparently, on the Crown's case, reliable persona is not so reliable and here about something of particular importance. So we say even with those three examples you might start, you may not, but you might start to have a bit of concern about how much you can bank on Mr Mulima.
I think I mentioned to you that the conversation he claimed that the accused had with him about the girl had been in fact first told to the police some six months after that was supposed to have taken place.

17 The luncheon adjournment followed counsel’s address. After lunch, the summing-up began with the conventional directions on the assessment of witnesses, including this direction, which obliquely recognises that there may be reasons why a witness lies or withholds evidence:-

You should ask yourselves whether [a witness] impressed you as a person doing his or her best to tell you the truth, as distinct from a person who, for some reason or other , was seeking to deceive or mislead you by telling deliberate falsehoods, or by not telling you everything he or she knew.

18 Some time later in the summing up, after dealing with the substance of Mr Mulima’s evidence, his Honour said :-

Now, to regard this as an admission by the accused of his involvement in these circumstances, I direct you that you would have to be satisfied beyond reasonable doubt of both the truth and accuracy of the words attributed to the accused by Mr Mulima beyond reasonable doubt. And owing to the importance of that evidence in the context of the case, I would further direct you that you would need to take into consideration the criticisms that Mr Pearsall has made in relation to the evidence of Mr Mulima, and that you would have to subject to scrutiny, and careful scrutiny, and to evaluate his evidence in the light of those criticisms by Mr Pearsall.

It is only after such careful scrutiny and evaluation, and if you are satisfied that the evidence is truthful, reliable and accurate, that you can use the evidence on the basis of a conviction on these charges in the indictment.

Alright, now I take you to the accused case, the defence case. The accused, there is no requirement on him, of course, to give evidence. He could have … sat there and said nothing and that is because he bears no onus. The onus remains on the prosecution from the beginning of the case to the end of the case.

The fact that he gave evidence does not mean that he assumes any onus of proof.

19 His Honour then went on to relate the appellant’s evidence at trial, as well as the evidence called on his behalf. Lastly, the trial judge summarised the submissions on behalf of the Crown and on behalf of the appellant in the following terms :-

The Crown, of course, relies heavily in this case, as I have already said to you, on the evidence of Mr Mulima, and the Crown said to you, I think the comment the Crown made to you in his address was that, look, Mr Mulima does not appear to be a person who had an axe to grind; and you would accept him as a witness of truth, telling you what happened on that particular night; that he certainly was in the presence of the accused; and for all those other matters which the Crown said it had been proved beyond reasonable doubt, you would draw the inference, and the only rational inference from all of that is that the accused was the person beside him at the taxi rank that ended up sexually assaulting the complainant.

The Crown further says that you would accept Mr Mulima’s evidence in relation to that conversation, which would further convince you beyond reasonable doubt by way of the admission from the accused that "I just touched the girl."
[There followed a summary of the submissions made on behalf of the appellant]
The accused’s case really is that Mr Mulima is just mistaken about this whole evening. His case is that "I certainly didn't tell him that I touched the girl. He’s also got that wrong."

20 Before returning to the appellant’s submissions, it is important to appreciate the ambit of the courts’ disapproval of an invitation to the jury to consider what reasons a witness may have for lying.

The Prohibited Invitation to Speculate.

21 At the heart of the issue raised by this appeal is the risk that, in the search for an explanation for why false allegations might be made against the accused, the onus of proof is transferred from the Crown to the accused.

22 The cases that have examined the issue begin with R v Davies NSWCCA 8/12/94. The only successful ground of appeal was that the verdicts on a number of sexual assault charges were unsafe and unsatisfactory. However, in the course of considering that ground, the Court (Grove J, with whom Ireland and Simpson JJ agreed) found fault with the following direction in the summing up :-

And the Crown says, 'Why on earth would a young boy come and make up such a dreadful thing about a person who had been good to him unless it was true? What motives would he have for telling lies about him?' [Counsel] did not suggest to [C] that he did have any particular motive for telling lies, but the Crown Prosecutor gave the accused the opportunity of saying whatever he thought might be the case, ……………………………………………………..
The accused of course does not have to prove what motive there was but if there is no credible motive that would naturally tend to make you believe the complainant. If you do see a motive why he might want to tell lies, then that would lessen his credibility to some extent.

23 The particular vice identified by the Court was that :-

It is difficult to conceive how the jury could make compatible the direction that the accused did not have to prove motive with the observation that absence of credible motive would fortify the complainant's credit except by erroneously taking into account the absence of proof of motive. If sustained as a ground this matter would ordinarily result in an order for new trial.

24 In F (1995) 83 A Crim R 502, also a sexual assault trial, defence counsel had, in fact, put to the complainant a motive for the fabrication of her evidence. The Crown Prosecutor in address had impressed upon the jury that, notwithstanding the thrust of the cross-examination, a failure by the accused to establish a compelling motive to lie could not be used towards proof of his guilt. It was the trial judge who instructed the jury that they could ask themselves “why would she make up this story?” Furthermore, the trial judge characterised the enquiry as “the central theme”. In that context, the Court (Gleeson CJ, Grove and Abadee JJ) said at 511 :-

.. "Why would the complainant lie"? [..] is a question, often left unspoken, which usually hovers over cases of this nature. Sometimes, as in the present case, it is specifically addressed by counsel in evidence and in argument. It is apparent from what is set out above that the observations of the trial judge were prompted by arguments put in final address, apparently by counsel on both sides. Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never "the central theme" of a criminal trial. At a criminal trial the critical question is whether the Crown have proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.

25 In E (1996) 39 NSWLR 450, the Crown Prosecutor made a “strong” submission in his closing address, that no reason had been advanced to explain why the complainant would lie. That submission was repeated and endorsed by the trial judge in the summing up, as “one of the things you are entitled to take into account” and “you are entitled to assess and make up your minds about the evidence and ask yourselves what reason, why would she make this up if it was not true." The Court (Sperling J, Handley JA and Abadee J agreeing) held that the circumstances were “materially identical” to F and upheld that ground of appeal.

26 In R v Uhrig NSWCCA 24/10/96, the ground of appeal focussed upon the trial judge’s summing up, which repeated a Crown submission that “there is no reason whatsoever for [SP] to have come here and told you lies. There was no motive suggested to her as to why she would want to deliberately lie about this particular matter. If she has told you the truth, then the accused admitted the various allegations to her.” Hunt CJ at CL (with whom Newman and Ireland JJ agreed) reviewed both F and E and concluded that the former was “a special case” and the latter was ”an unusual case”. He said :-

There remains, however, some danger in the simple rhetorical question, why would the witness lie? This was discussed in some detail in the recent decision of this Court in Regina v E . Sperling J (with whom the other members of the Court agreed) described the illegitimacy of the question to this effect. 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. Sperling J went on to hold that, in a case where there is no direct evidence of an actual motive to lie, or evidence from which a specific motive to lie could reasonably be inferred, the rhetorical question should not be permitted to be raised for the jury's consideration, because it invites the jury to speculate in the illegitimate way already described 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. 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.

27 In R v Graham NSWCCA 2/9/97, the accused at trial was cross examined to the effect that he could not explain why the complainant had made an allegation of sexual assault against him. This aspect of the cross examination referred to questions asked of the accused by the police in a record of interview, namely, why would the complainant make the allegation. In summarising the defence case, the trial judge said "The accused says ' I deny the allegations. I deny them emphatically. I cannot explain' he says to …. you, through the Prosecutor 'why my daughter would make the allegations'".

28 In dismissing this ground of appeal, Levine J (with whom Newman and Barr JJ agreed) said :-

The inevitable and human response comprised in the question " why would she say these things " (or words to that effect) cannot in every case and in all circumstances be taken to be the equivalent of " why would she lie ", …………………………….
I do not see any component of his Honour's summing up constituting the impermissible transference of onus involved in the proposition " why would she lie ". His Honour made it quite clear in his summing up that the onus of proof beyond reasonable doubt rested upon the Crown from beginning to end and nothing his Honour said in this area derogates from the significance of that proper direction. ………………………………………………………..
Nothing in the course of the case, including the Record of Interview or the cross-examination of the appellant or the directions of the trial judge, amounted to the unacceptable and improper question " why would she lie ".

29 In Guirguis NSWCCA 29/11/96, this Court (Ireland J, with whom Gleeson CJ and James J agreed) held that, standing alone, a misdirection of the type encountered in E did not constitute a miscarriage of justice. The trial judge said in the summing up :-

One of the things you are entitled to take into account is whether there has been any reason why she should lie. Mr Barry put to you, we do not have to prove that she lied or any reason why she would lie and that is quite an accurate submission. There is no obligation on the accused, to prove anything. There is no obligation on the accused to prove a reason why she should lie. But no reason having been shown in the evidence why she should lie or why she should invent this story, you are entitled to ask yourselves when evaluating her evidence has any reason been shown to us in this case why she would tell us untruths and you are entitled to take that into account in making up your mind as to whether you accept her or not.

30 In fact, the accused had put forward a motive for the complainant to lie in the course of his evidence. In any event, the Court was of the view that the question was posed “in conjunction with proper and clear directions on onus”, so that the risk of a reversal of the onus of proof was not realised.

31 In Jovanovic (1997) 98 A Crim R 1, the accused at trial had raised with the complainant in cross-examination a specific motive for the fabrication of the allegations of sexual assault, after the complainant had said “Why would I make accusations like this if they never really happened?” Further, the jury had the record of interview wherein the accused had volunteered a motive. The Crown Prosecutor’s address referred to this feature of the case, as follows ; “You might wonder why, as this young boy said to you, why would I make these things up? You might wonder why has he got this man in his sights? Why would he accuse him of these terrible things?”

32 The trial judge’s summing up dealt with the matter thus :-

Effectively, what has been put is now why would this young man make the allegations he has? A direction I want to put to you and to you quite emphatically is this. That is a reasonable argument to be put to you and, indeed, it would be quite unrealistic to think that you would not yourselves, as members of the community, think about that. You are perfectly entitled to do that , you are perfectly entitled to think about, now why would this young man make the allegations, just as much as you would be entitled to think about, now why would this accused deny them? It would be defying commonsense to think that those considerations would not cross your mind.
But having raised that matter, what I emphatically want to stress to you and reiterate to you is that it is not for the accused to prove any motive on the part of (the complainant). As I have said earlier to you, there is no onus on the accused to prove anything whatsoever in this trial

33 Applying the distinction outlined by Hunt CJ at CL in Uhrig between cases where no motive arises on the evidence and cases where a motive is suggested, the majority of the Court (Priestley JA and Sperling J, Cole JA dissenting) held that, in a case falling into the latter category, the trial judge should have directed the jury that if they rejected the motive put forward by the accused, that did not justify acceptance of the complainant as a witness of truth. The absence of that direction was sufficient to uphold the ground of appeal.

34 In R v AH (1997) 98 A Crim R 71, the Crown Prosecutor asked the jury to consider what reason the complainant had for lying and the trial judge repeated the submission in the following terms :-

He does not have to prove anything. The Crown has to prove that he did it, and the Crown seeks to prove its case, substantially speaking, by evidence of [T]. That is she is the hub of the case and by the other evidence which is relied on by ex parte [this would appear to be a typographical error in a transcript of the summing up and should read "x party"] either to support or to detract from her. But the big decision for you is going to be whether you accept [T].
……………………………………………………..
She points out that there are no reasons to suggest why [T] should make up a story of this sort, and she puts to you that [T's] account of what happened is believable and that her demeanour, particularly under cross-examination, and her reactions when it was put to her that she was not telling the truth were all very convincing and have a ring of truth…It is a matter for you as to whether you think that sort of response and her demeanour throughout convinced you that she was a truthful girl or whether you would doubt her.
…………………………………………………………………..
She is a witness who is brought to you, whether she wants to be here or not, by the Crown, and the Crown Prosecutor says to you - and if she were why would she. Rather she puts the rhetorical question there: why would she make up a story that is going to have these effects on her, as well as her uncle with whom she is on good terms.

35 Ireland J (with whom Hunt CJ at CL and Levine J agreed) referred to Uhrig and went on to say at 77 :-

Here no direct evidence of a motive to lie was presented, and none could be inferred from the evidence given. Thus, the rhetorical question "Why should the complainant lie?" ought not have been put by the Crown to the jury.
Furthermore, his Honour's failure to qualify the Crown's submissions in his summing up, and indeed his repetition of the proscribed question, would have reinforced any illegitimate speculation on the jury's part, initiated by the Crown's submissions, as to the probability of the witness telling the truth. The question and its repetition in this way by his Honour would have considerably diluted his earlier remarks in his summing up to the jury that the appellant did not have to prove anything and distracted the jury's focus from the prime necessity of the Crown to prove its case beyond reasonable doubt. In the circumstances of the case, his Honour's repetition of the rhetorical question "why should the complainant lie?" led to a miscarriage of justice. This ground of appeal is therefore upheld, notwithstanding that no point was taken at trial ( Regina v Abusafiah (1991) 24 NSWLR 531 at 536).

36 This line of authority was considered by the High Court in Palmer v The Queen (1998) 193 CLR 1. At the trial of the accused, his counsel had cross-examined the complainant in order to suggest that her evidence was “some sort of payback” for something the accused had done to her. The cross examination of the accused began with the question “there is absolutely nothing about your behaviour towards [L] in the past … that would account for her making such an allegation against you?” A following series of questions explored this topic further with the accused. At the very end of the cross-examination, the question was repeated in slightly different terms.

37 After noting that cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make false allegations, referring with approval to Hunt CJ at CL in Uhrig, the majority judgment on this ground (Brennan CJ, Gaudron and Gummow JJ.) said at 7 :-

the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, …………
…. to ask an accused the question "why would the complainant lie ?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.

38 The majority then referred to F and to Sperling J’s judgment in E, in particular his Honour’s analysis of the reasons for prohibiting cross-examination of an accused as to a witness’ motive to lie. As to Sperling J’s observation that “the effect of the question is to reverse the onus of proof [in that] the question implies that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant's evidence and convict.”, the majority said at 8-9 :-

The third observation may overstate the effect of the question in a particular case, especially if the trial judge gives the jury a direction to the contrary. A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry. Nevertheless, as the question is irrelevant to any issue in that case, it ought not be asked.

39 No criticism was made of the directions by the trial judge, albeit the majority doubted whether the directions were capable of neutralising the prejudicial effect of the opening and closing questions of the cross-examination of the accused. The majority allowed the appeal on the ground that “the asking of the questions in the circumstances of the case may have occasioned a miscarriage of justice.”

40 Justice McHugh would not have allowed the appeal on this ground. His Honour was of the view that any indication of a reversal of the onus of proof inherent in a line of questioning of the type being considered was capable of remedy by full and clear directions from the trial judge on the onus of proof, and that they were given in the case at hand. Justice Kirby would have allowed the appeal on this ground on the basis that, to allow cross-examination of an accused as to a complainant’s motive to lie was not harmonious with the decision in Robinson v The Queen (1991) 180 CLR 531.

41 In R v Smith [2000] NSWCCA 468 Wood CJ at CL (Giles JA and James J agreeing) dealt with a ground of appeal based upon a Crown Prosecutor’s address and another ground complaining of the absence of an appropriate direction. The Crown Prosecutor's address included the following :-

Now, is she making it up members of the jury? I tell you I think not. If so, why? Why would she be making this up? I suppose there are many answers to that and I certainly don't ask you to speculate because she tells you who did it; she tells you it is this person .. , a person that she doesn't know particularly well, …….
………………………………………………………………………….
You will recall the evidence of the accused himself. I asked him some questions as to whether there was any animosity, I think I said, or disagreement or something like that, between he and DR; there was none, they were friendly. Members of the jury DR is not making up first the fact of these things happening to her, nor the second as to who did them to her. She has no reason to in my submission to you members of the jury and she has not made it up.

42 As to this feature of the address, Wood CJ at CL said at [94] :-

However, what was said by the Crown Prosecutor, in this case, must be viewed in context, and in particular by reference to the fact that he made it clear to the jury that they were not to speculate about the matter. Understood in its full context, the Crown Prosecutor was conveying the message that the complainant had no reason to make up the allegation and was not doing so. He did not directly suggest to the jury that they should ask the offending question of themselves.

43 Nor did the trial judge's treatment of this part of the address "pose the question in a prohibited way." [95] The trial judge referred to the Crown's submissions to the jury with respect to the conflicts in the evidence before paraphrasing the Crown in terms of " ‘well look, is she making it up? The Crown then goes on to say ‘well, ladies and gentlemen, you are just not to speculate’. And you may recall the directions I gave you about not guessing or speculating, you must determine this matter on the evidence that is before you.”

44 Further, following an extensive review of the decisions dealing with “the potential vice” in posing “the prohibited question”, his Honour said at [102] and [118] :-

In the various decisions, where the prohibited question has resulted in a conviction being set aside, it has been left in a way giving the matter prominence as ‘a central theme or issue’ [citations omitted] or endorsing its legitimacy or otherwise describing it as an ‘appropriate’ or a ‘reasonable’ or ‘proper’ question to ponder [citations omitted].

…………………………………………………………………………

The absence of any complaint by trial counsel in relation to the matters now sought to be raised in these grounds, the lack of prominence given to the matter of motive, and the absence of any encouragement given directly to the jury to ponder upon the question "why would the complainant lie" leads me to the conclusion that, in the context of this trial, there was no error or risk of a miscarriage of justice.

45 In R v Fuge (2001) 123 A Crim R 310, Wood CJ at CL (Heydon JA and Sully J agreeing) repeated the remarks set out above, in circumstances where an accomplice was cross-examined on the basis that he had a motive to lie and the trial judge repeated a Crown submission, namely, “you would ask yourselves why would he put the accused in at this stage”. In refusing leave to rely upon a ground of appeal that complained of the absence of a direction, which emphasised that the accused bore no onus to prove a motive to lie, his Honour said at 318 :-

Each case must be considered in its own setting, and some regard needs to be given to the impression of trial counsel as to what was required. That she saw no need for any further direction, in relation to a matter which had not been highlighted, or given any weight by his Honour beyond summarising the competing submissions of counsel, is in my view of some importance.

46 In R v Ray (2003) 57 NSWLR 616, Wood CJ at CL (Simpson and Adams JJ agreeing) made the following observation at 634, when allowing an appeal against conviction on another ground :-

Additionally, when dealing with Ms Ray's evidence, his Honour,at one point, said to the jury:
“The comparison of witnesses in relation to this area of alleged
admissions is a matter of assessment solely for you, but, in making that
assessment, you may want to ask yourself: was any reason suggested to
Julia Ray why she may be untruthful in relation to what she says was
said ? I do not think in the cross-examination will find that suggestion put
to her. That is a material matter.”
This direction came close to, if not directly falling within, the offending line of reasoning which has attracted the attention of the courts, in relation to similar questions asked of complainants in sexual assault cases : see Palmer v The Queen (1998) 193 CLR 1.

47 In Wilson v R [2006] NSWCCA 217, the Crown Prosecutor ‘s address contained an express reference to the absence of any questions in cross-examination :-

What are the factors that you can use to assess whether he is reliable as a witness, that is whether he is honest and accurate? Firstly has he been questioned about any motive that he may have to wish any harm to the accused? Did he appear to elaborate upon any matters that would be harmful towards the accused? The Crown says no, there is no example of that.

48 The accused in Wilson had squarely raised the prospect that the mother of the complainant had a motive to give false evidence against the accused and to manipulate the complainant for her own purposes. Significantly, immediately after the Crown Prosecutor's address, the trial judge suggested that the submissions set out above had gone too far. The directions given by the trial judge in the summing up addressed the Crown Prosecutor's submission thus ;

The accused does not have to point to any motive. The accused has no onus to prove anything or disprove anything. It is upon the Crown to satisfy you beyond reasonable doubt that on these crucial issues, that is to say the actual events themselves that C describes, that he was an honest and accurate witness.

49 A ground of appeal complaining that the Crown's closing address impermissibly introduced the notion of a motive to lie, and that the directions were not capable of curing the resulting prejudice, failed.

50 Boulattouf v R [2007] NSWCCA 102 concerned a misdirection by the trial judge when dealing with the subject of conflicts in the evidence. Among other things the trial judge said :-

Do you, because of all these inconsistencies, conclude that [the complainant] is lying and unable to maintain her narrative? Or do you regard it as just normal that there are always some inconsistencies? Is [the complainant] and her mother conspiring to make up a story, and if so why? Are they unable to maintain the story they have agreed upon?

51 Following an application from counsel for the accused for a discharge of the jury, the trial judge gave a further direction instructing the jury to ignore the above comment and confirming that it had never been suggested by the accused or by his counsel that there was any motive for lying. The jury was told not to speculate or guess, and that it was an “impermissible thought process”, tending to reverse the onus of proof. The Court (Simpson, Barr and Howie JJ) dismissed a ground of appeal premised on the proposition that no direction could have removed the impression made upon the jury by the trial judge’s misdirection.

52 In dealing with a submission in the course of the appeal that the redirection inevitably reminded the jury that the accused had not placed before the court any evidence as to why the complainant made false allegations, the Court said at [37] – [38] :-

The redirection did no such thing. It did not mention any lack of evidence. It dealt only with the absence of any suggestion that there was a motive for lying or conspiring.
It is correct to say that his Honour did not in terms tell the jury either that “people lie for all sorts of reasons and that sometimes those reasons are not discovered” or that the “complainant's account gains no legitimate credibility from the absence of evidence of motive”, but there is no general requirement for a trial judge to do so and his Honour was not asked to redirect in those words.

53 In South v R [2007] NSWCCA 117, both final addresses ventilated the suggested motive for false allegations by the complainant, namely that the complainant feared parental discipline for arriving home late and having taken drugs. When dealing with that issue in the summing up, the trial judge said :-

The Crown says to you, and indeed I think [the accused’s counsel] said to you at one stage, and argument was put, the Crown says well why would [the complainant] be telling lies? [The accused’s counsel] says there are reasons why she may not be telling the truth. I do not know how productive it is to try and go down the path of trying to determine whether or not someone is telling lies.
……………………………………………………………………….
But the Crown says there are a number of reasons why you would not find that [the complainant] is lying, because why would she lie?

54 Hunt AJA (Simpson and Whealy JJ agreeing) noted at [44] that "the jury should never be asked to go beyond the evidence on which both parties rely to establish or refute a motive to lie and to consider the question ‘Why would she lie?’, Such a question simply should never be asked.”

55 In all of the above cases, with the exception of Graham, Palmer, Uhrig, Ray and Wilson, the question “why would he/she lie?” was directly posed to the jury, either rhetorically in those cases where no motive to lie was asserted, or by way of a submission or direction about an asserted motive. However, not all of those cases where the question was directly put to the jury resulted in a miscarriage of justice (see Guirguis, Smith, Fuge, and Boulattouf ).

56 Graham and Palmer concerned cross-examination of an accused as to his knowledge of any motive to lie. Whilst the extent of that cross-examination in the latter case resulted in a miscarriage of justice, according to the majority, it is apparent from both cases that strong and appropriately targeted directions on the onus of proof are capable of overcoming the risk inherent in focussing the jury’s attention on the accused’s explanation for the allegations.

57 In Uhrig and Ray, even though the prohibited question was not directly put to the jury, the question was subsumed within the submission and the summing up, that is, “why she would want to deliberately lie” and “why she may be untruthful.” In both Uhrig and Ray, the Crown submission, and the summing up, explicitly reinforced the notion that the accused bore some responsibility for exposing a motive in cross-examination, and given that no motive was explored, the jury could readily accept the witness as truthful. Wilson falls into the same category, although the directions to the jury in that case were held to have removed any danger of a miscarriage of justice.

58 Having regard to these authorities, the following propositions emerge. Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive (“the central theme”), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.

59 Where there is no direct evidence of a motive to lie on the part of a central Crown witness, or evidence from which one can be reasonably inferred, a miscarriage of justice may be occasioned by :-

(i) cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case ;

(ii) a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie ;

(iii) a Crown submission to the jury which directly invites them to ask the question “Why would he/she lie ?” in order to promote the acceptance of the witness as a witness of truth ;

(iv) a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect.

60 Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case.

“Axe to Grind”

61 The appellant’s argument assumes that the words “there is no suggestion” meant, and would have been understood by the jury as, “the accused did not suggest to Mr Mulima”, and that the reference to no axe to grind meant, and would have been understood by the jury as, an absence of motive to lie. Thus, according to the appellant, the trial advocate said “the accused did not put to Mr Mulima that he had a motive to lie in the course of his evidence in this trial.” In substance, the appellant’s submission is that the proscribed conduct in (ii) above occurred. Assuming that this submission is made good, the question arises whether the trial judge’s directions effectively endorsed such a meaning, or the directions on onus of proof were insufficient to remove any risk of transference.

62 Before passing to a consideration of the comment and the directions in the circumstances of the trial, it is relevant to undertake some analysis of what was actually said.

63 The expression “axe to grind” means a private purpose or selfish end to attain (see Macquarie Dictionary, Rev. 3rd ed.). In common parlance, it does not necessarily mean that the alleged private purpose or selfish end inevitably gives rise to dishonesty. It may do so, but it may simply connote the intervention of a person wishing to serve a private interest, who would otherwise be disinterested.

64 Similarly, when used in the course of legal proceedings, it often has a much wider connotation than fabrication. It is an expression that is often used by trial judges when inviting the jury to consider the types of matters that might affect a witness’ reliability, that is, considerations of both honesty and accuracy. (See R v El-azzi [2004] NSWCCA 455 ; R v Keir [2004] NSWSC 964 ; R v Walters [2002] NSWCCA 291 ; R v WRW [2001] NSWCCA 466 per Heydon JA at [67] ; R v Brownlowe NSWCCA 30/3/94 ; R v Downey NSWCCA 16/12/92.) When used in this context, the expression does not generally give rise to any shift in the onus of proof.

65 In R v Condon NSWCCA 9/10/95, it was a ground of appeal that the trial judge had erred in directing the jury in the following terms :-

You might look at each witness and determine whether there is any special relationship between any of the witnesses and the accused. A relationship which may have led them either consciously, or even subconsciously, to colour their evidence. You will ask yourself was the witness totally impartial and objective. Was there a hidden agenda. Did the witness have someone to protect or an axe to grind as has been said in this case. You should also remember that because people are close friends does not necessarily mean that they would not give truthful evidence. It just means that you would hear a warning bell to examine carefully that evidence. (italics not in original)

66 The Court (Allen J with whom Newman and Simpson JJ agreed) noted that no objection was taken at trial to this direction. The ground was said to be “not sufficiently arguable” and leave to rely upon it was refused.

67 In drawing such matters to the jury’s attention, the only prohibition is that which was identified by the High Court in Robinson. Acknowledging that it may be difficult to draw the distinction between serving an interest by giving evidence and serving an interest relating to the outcome of the case, Hunt CJ at CL said in R v Brotherton (1993) 29 NSWLR 95 at 99 :-

It is permissible to tell [the jury] that they may take into account the existence of any particular interest or purpose of any witness which will be served or promoted by giving evidence, but it is not permissible to identify that particular interest as one relating to the outcome of the case, because that will inevitably disadvantage the accused. It seems to me that the safest course would be for the judge to discuss the approach to the various conflicts in the evidence in very general terms before identifying in detail those conflicts and the arguments put in relation to them. In my view, it would be permissible to give a direction in general terms along these lines:
"It is a matter for you what significance you give to any conflicts in the evidence [material] in the case. Remember that all people are different. Rarely do two or more people see the same thing, or recall the same thing, in precisely the same way. Some have poorer memories than others. [Some were not in the same condition to observe the particular event as others.] Yet others may have some particular interest to be served or some particular purpose to be achieved by giving evidence in the case. Those are the matters which you may consider in assessing the significance of any conflicts in the evidence [material] in the case."

(See also Ray at 633)

68 This Court has also used the expression to describe the impartiality of a witness, notwithstanding that witness’ association with the offender : R v Coe [2002] NSWCCA 385 at [118] ; R v Colby [1999] NSWCCA 261 ; R v Herring NSWCCA 24/11/98 ; BRS v R (1997) 191 CLR 275 ; BRS v R NSWCCA 5/3/96 ; R v Browne, Moorehouse & Blewitt NSWCCA 27/11/87.

69 Returning to the instant case, the reference to no “axe to grind” must be understood in the context of the trial advocate’s comments about Mr Mulima, that is, “[Mr Mulima] said the accused was more by way of an acquaintance with him. There is no suggestion that Mr Mulima had any axe to grind with the accused.”

70 A plain reading of this aspect of the prosecutor’s address suggests that he was referring to Mr Mulima’s neutrality as a witness, that is, he was not particularly friendly with, or hostile towards, the appellant, and what contact he had with the appellant was of a transient, social nature in various hotels around Wollongong. According to this construction, the impugned comment might well be paraphrased as “there is nothing in the circumstances surrounding the relationship between the accused and Mr Mulima to suggest that Mr Mulima has any private purpose to be served in giving evidence against the accused.”

71 That interpretation of the comment finds expression in the trial judge’s summary of that submission, namely, “Mr Mulima does not appear to be a person who had an axe to grind.” The latter is cast purely in terms of how Mr Mulima might have appeared as a witness. It does not state or imply that the appellant had any role to play in suggesting what private interests Mr Mulima was serving in giving evidence.

72 In the appellant’s case, no motive to lie was directly raised, nor was there anything in the evidence that allowed such an inference to be reasonably drawn. The cross-examination of Mr Mulima and counsel’s address to the jury sought to capitalise on the fact that, amongst other things, Mr Mulima’s limited contact with the appellant took place within hotels when Mr Mulima had been consuming alcohol. There was a broad attack upon his reliability, without delineating between honesty and accuracy. This approach to Mr Mulima as a witness is also relevant when considering how the jury would have interpreted the trial advocate’s submissions and the trial judge’s directions.

73 It is pertinent at this point to refer to the affidavit filed in this Court, sworn by the appellant’s counsel at trial. As noted above, he is a very experienced trial counsel, who could not have failed to appreciate the danger of any submission to the jury suggesting that his client had failed to expose Mr Mulima’s motive for giving false evidence. Trial counsel’s explanation for failing to take any objection to the trial advocate’s address or to the trial judge’s directions was “it was an oversight on my behalf. It was not for any tactical reason.”

74 Thus, it is not asserted that trial counsel did not hear the offending comment, rather that the significance attributed to it for the purposes of this appeal did not occur to him. The remarks of Wood CJ at CL in Fuge at [38] are apposite here. Trial counsel’s impression at the time was that nothing in the trial advocate’s address or the reference to it in the summing up prejudiced the appellant. In particular, trial counsel did not interpret the trial advocate’s comment in terms of drawing attention to the fact that he had not cross-examined Mr Mulima about his motive for giving evidence about the admission.

75 I am not persuaded that the trial advocate’s comment conveyed the meaning attributed to it by the appellant. Further, I am not persuaded that the jury would have understood the trial advocate’s remark as a comment on the failure of the appellant to suggest a motive to lie. It was a statement in general terms. The trial advocate did not say “there is no suggestion by the accused”. It may have been more accurate to submit that the jury could accept Mr Mulima as an impartial witness, in the light of his relatively superficial contact with the accused. However, that is not the question. To isolate the comment for particular scrutiny in the manner suggested by this appeal is to ignore its place in a succinct Crown address, which was followed by a more lengthy defence address (where counsel spent some time on the requirement of knowledge of lack of consent, before dealing with Mr Mulima’s evidence) and a summing up.

76 Neither the trial advocate’s submission, nor the trial judge’s summary of that submission, encouraged the jury to ask themselves “Why would Mr Mulima lie?” (see Smith) Even if the risk of that interpretation arose from the trial advocate’s comment, the summing up did not repeat the trial advocate’s comment verbatim, but qualified it in a material respect. By casting the Crown’s submissions in terms of how Mr Mulima appeared to present as a witness, the jury were being told no more than they were told at the outset of the summing up, namely, it was legitimate to assess a witness’ honesty according to the impression that the witness made upon them. That aspect of the summing up followed the directions which emphasised that acceptance of Mr Mulima’s evidence about the admission depended upon proof beyond reasonable doubt of his honesty and accuracy, and that the accused bore no onus of proof.

77 For the above reasons, I would refuse leave to rely upon this ground and dismiss the appeal.

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02/09/2008 - One of the Orders deleted in the coversheet - Paragraph(s) Alteration to the Coversheet (orders)