Kadibil v The Queen

[2003] WASCA 13

KADIBIL -v- THE QUEEN [2003] WASCA 13

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 13
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:151/2002	Heard:	18 & 25 NOVEMBER 2002
Coram:	TEMPLEMAN J WHEELER J ROLFE AJ	Delivered:	14/02/03
No of pages:	24	Judgment Part:	1 of 1
Result:	Application for leave to appeal granted Appeal allowed Conviction of appellant quashed New trial ordered
Category:	A
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Parties:	JERRY KADIBIL THE QUEEN
Catchwords:	Criminal law and procedure Appeal Extension of time Contributing factors Turns on own facts Criminal law and procedure Appeal Admission of hearsay evidence Possibility of concoction or distortion Adequacy of Judge's directions to jury Criminal law and procedure Appeal Cross-examination of accused as to motive of deceased for making statement Whether Judge's directions capable of neutralising prejudicial effect of cross-examination
Legislation:	Nil
Case References:	F (1995) A Crim R 502 Palmer v The Queen (1998) 193 CLR 1 R v Andrews [1987] 1 AC 281 Ratten v The Queen [1972] AC 378 Rodd v The Queen [2000] WASCA 329 Taylor v R [2000] QCA 96 Topalidis v R [1999] QCA 367 Van Den Hoek v The Queen (1986) 161 CLR 158 Gavin v The Queen (1992) 6 WAR 195 Godfrey v The Queen (1989) 89 Cr App Rep 153 Leary v The Queen [1975] WAR 133 Murray v The Queen (2002) 76 ALJR 899 Sreckovic [1973] WAR 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KADIBIL -v- THE QUEEN [2003] WASCA 13 CORAM : TEMPLEMAN J

WHEELER J
ROLFE AJ

HEARD : 18 & 25 NOVEMBER 2002 DELIVERED : 14 FEBRUARY 2003 FILE NO/S : CCA 151 of 2002 BETWEEN : JERRY KADIBIL

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal - Extension of time - Contributing factors - Turns on own facts

Criminal law and procedure - Appeal - Admission of hearsay evidence - Possibility of concoction or distortion - Adequacy of Judge's directions to jury

Criminal law and procedure - Appeal - Cross-examination of accused as to motive of deceased for making statement - Whether Judge's directions capable of neutralising prejudicial effect of cross-examination

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Legislation:

Nil

Result:

Application for leave to appeal granted

Appeal allowed
Conviction of appellant quashed
New trial ordered

Category: A

Representation:

Counsel:

Applicant : Mr R W Richardson
Respondent : Mr K P Bates

Solicitors:

Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

F (1995) A Crim R 502
Palmer v The Queen (1998) 193 CLR 1
R v Andrews [1987] 1 AC 281
Ratten v The Queen [1972] AC 378
Rodd v The Queen [2000] WASCA 329
Taylor v R [2000] QCA 96
Topalidis v R [1999] QCA 367
Van Den Hoek v The Queen (1986) 161 CLR 158



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Case(s) also cited:

Gavin v The Queen (1992) 6 WAR 195
Godfrey v The Queen (1989) 89 Cr App Rep 153
Leary v The Queen [1975] WAR 133
Murray v The Queen (2002) 76 ALJR 899
Sreckovic [1973] WAR 85

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1 TEMPLEMAN J: I have had the advantage of reading in draft, the reasons to be published by Wheeler J and Rolfe AJ.

2 I agree with Rolfe AJ that the circumstances called for the learned trial Judge to direct the jury in terms suggested by Lord Akner in R v Andrews [1987] 1 AC 281: and that his Honour's direction fell short of this requirement.

3 I agree also with Rolfe AJ that the cross-examination of the applicant as to his knowledge of the stabbing was prejudicial; and that the direction given by the learned trial Judge did not cure the prejudice.

4 I am therefore of the view that the trial miscarried, and that orders should be made as proposed by Wheeler J and Rolfe AJ.

5 WHEELER J: The applicant was convicted after trial in June 1999 of murder. He applied approximately three years out of time for an extension of time within which to appeal against his conviction. It is my view that, if there is merit in the proposed grounds of appeal, the extension of time should be granted. Although the delay is gross, there appear to have been a number of contributing factors to it. The applicant is a Yamatiji man who normally lived in the Meekatharra area. He is illiterate in English, and his evidence at trial, particularly during the course of cross-examination, suggests that English is not a language which he speaks fluently. A file note made by the solicitor who represented him at trial suggests that, notwithstanding that he had heard the verdict, and had by then been sentenced, Mr Kadibil did not understand, some months after June 1999, whether or not his trial had "finished".

6 Some time in March 2000 it appears that Mr Kadibil made enquiries of a prison support officer about an appeal from his conviction. She contacted the Aboriginal Legal Service, who suggested he contact the prison support officer employed by the Aboriginal Legal Service. It appears that at about the same time Mr Kadibil had made enquiries with the Legal Aid Commission for the same purpose, since he appears to have caused someone to fill in an application for legal aid for him in early April 2000. That application, and subsequent requests for reconsideration, were unsuccessful, apparently because Mr Kadibil was unable to supply any relevant material.

7 In early 2001 the applicant made contact with the Aboriginal Legal Service peer support officer, advising that officer that the applicant "did not do anything and would be out soon". At some time which cannot be

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ascertained from the materials before us, the applicant was reviewed by the prison psychiatric services, apparently because of threats of self harm by him. In January 2001 he was transferred to Graylands Hospital. A review of him there suggested that he did not at that time suffer a mental illness, but that he was very distressed by his isolation from other members of the Yamatiji community. However, by June 2001, he was again referred to Graylands with disordered thinking and increasing paranoia. At that time the reviewing psychiatrist considered he did have a mental illness and he was detained for a time as an involuntary patient.

8 It appears that as a result of contact by the applicant with the Aboriginal Legal Service prison support officer, a decision was made by ALS to obtain a transcript of his trial and to ask counsel to consider whether there were any grounds of appeal. From the time of counsel's response in July 2001, it appears that there was significant delay by the relevant officer of the Aboriginal Legal Service, which is not attributable to any fault of the applicant.

9 Having regard to the applicant's very limited understanding of the legal process, his difficulties in coping with English, his isolation from his own community, the suicidal thoughts and mental illness which developed at some stage during his incarceration, and the degree of delay which is apparently the fault of his solicitors, it seems to me that the interests of justice would require an extension of time to be granted to the applicant if there were merit in the proposed grounds of appeal.

10 There are essentially four grounds of appeal. Two of them, in my view, do not have merit. I deal with those first.

11 The first ground of appeal is to the effect that either his Honour erred in law in admitting hearsay evidence of statements made by the deceased, since his Honour could not have been reasonably satisfied that there was no possibility of concoction of those statements, or alternatively that if they were admissible his Honour erred in the exercise of his discretion in failing to exclude them on the ground that their prejudicial value outweighed their probative value.

12 The statements which his Honour admitted were statements made to Ms Hill who gave evidence that the deceased had yelled out words to the effect of "Help I've been stabbed" as she was running across the road holding onto her left side, and the evidence of Mr Swarbrick whose evidence was to the effect that the deceased had called "He stabbed me, he stabbed me", or words to that effect. The circumstances in which those statements allegedly came to be made were, briefly, these. The applicant

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and the deceased had had a longstanding relationship. The deceased had a history of self-mutilation. She had on many occasions cut herself, inflicting injuries of a relatively serious kind, usually with broken bottles. His Honour also had before him evidence to the effect that the deceased had at one time alleged an assault upon her by police, while the police evidence was that the injuries of which she complained had been inflicted by her on herself. There was also evidence before his Honour that there had been an occasion when the deceased had alleged that the accused had assaulted her and had later retracted that accusation. This last evidence was not presented to the jury at trial, as a result of a tactical decision by counsel for the applicant.

13 On the night in question, the deceased and the applicant had been seen to be arguing on a pedestrian footbridge. The deceased's uncle Mr Riley was nearby. It appears that the deceased hit at the applicant with her handbag and that the applicant was seen to punch her. She ran away from him, ran behind Mr Riley and in doing so brushed against him and left blood on his jacket, and then ran from the footbridge saying the words to which I have referred. Witnesses saw the applicant standing on the footbridge waving a dark object which appears to have been the jacket worn by the deceased. That jacket was later found to have blood on it. A knife similar to an ordinary kitchen knife was found near the bridge with the deceased's blood on it. The deceased had three injuries, they being a penetrating stab wound to the chest which caused her death, a wound to the left shoulder, and a wound to the right wrist near the base of the thumb. Medical evidence was to the effect that there was nothing about those injuries which ruled them out as being self-inflicted, although I think it is fair to say that the evidence at trial rather suggested that the injury to the right wrist was of the type often referred to as a "defensive" injury.

14 There had been a variety of other statements made by the deceased to the effect that the applicant had stabbed her, but his Honour held that those were not admissible since they were made rather later than those he considered admissible. Some of those later statements were made in response to questions and were not in that sense spontaneous utterances. It is clear that his Honour correctly directed himself as to the law, setting out in a written ruling the relevant passages from Ratten v The Queen [1972] AC 378 and R v Andrews [1987] 1 AC 281.

15 I should note that it appears to me that there is a factual difficulty with this Court's second guessing his Honour's ruling. Although we have the trial transcript before us in the appeal books, it appears that his

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Honour's decision was based upon the depositions, and upon certain information which he was given apparently from the bar table. We therefore do not have before us precisely the materials with which his Honour was concerned. However, fortunately, his Honour has summarised in some detail the materials to which he had regard.

16 His Honour's conclusion was that there was a relatively short period between the injuries sustained by the deceased and her arrival at the Royal Mail Hotel, the relevant statements having been made in the interim. He considered the statements were made "almost immediately" after the infliction of the injury and that they were almost, if not exactly, contemporaneous with the injuries so that one could discount the possibility of concoction or distortion. His Honour was satisfied that the deceased's thoughts would have been entirely dominated at that stage by the injuries sustained by her. His conclusion was that "The facts relating to the incident itself are such as to exclude, on a balance of probabilities, the possibility of concoction on the part of the deceased at the time of her altercation with the accused when she first made the statements attributed to her ... ".

17 The applicant appears to have two complaints in relation to his Honour's reasoning at this point. The first is that, it is submitted, his Honour having found that the statements were almost contemporaneous and made at a time when the deceased's thoughts were entirely dominated by the injury, his Honour should nevertheless have "revisited" the special circumstances of the case - that is, the history of self-mutilation and false complaint - in order to determine whether, notwithstanding his finding of contemporaneity, there was a possibility of concoction. As I understand his Honour's reasons, he had referred to those matters and taken them into account at an earlier stage of his consideration, so that the finding which he made was a finding that in spite of those matters the circumstances of the incident were such as to exclude the possibility of concoction. It was not therefore necessary for his Honour to refer to those circumstances.

18 Next, it is submitted that his Honour's reasons were directed only to the possibility of concoction occurring after the time of infliction of the wounds, when there was also a possibility that the deceased had at some stage during her altercation with the applicant decided to stab herself and to blame him, so that the concoction could have been a plan conceived prior to the stabbing. This was a matter which was raised by his Honour during the course of argument on the voire dire, but was not explicitly canvassed in his ruling. I do not think that any error is revealed by his Honour's failure explicitly to advert to that possibility. As I understand it,

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the time between the beginning of the altercation and the deceased's leaving the footbridge was very short. It seems clear from the evidence relating to the blood on Mr Riley that the deceased had already been stabbed at the time at which she turned to leave the footbridge. In his account of the facts, his Honour described the whole of the incident, and it appears to me that when he ruled that the "facts relating to the incident itself" were such as to exclude the possibility of concoction, he was referring to the timing of the entirety of the incident.

19 So far as the exercise of his Honour's discretion to exclude the evidence is concerned, it is true that his Honour did not expressly rule on that question. Notwithstanding that there was apparently an application that his Honour should exercise his discretion so as to exclude the evidence, it appears that on the voire dire counsel did not canvass with his Honour any considerations which might lead him to exercise his discretion so as to exclude the evidence, other than the arguments which had already been put before his Honour on the question of admissibility. The evidence was plainly highly probative. Unlike the evidence in the case of Van Den Hoek v The Queen (1986) 161 CLR 158, it was not evidence which attributed to the applicant any intention or which gave rise to any speculation about his state of mind. The statements made were simple statements of fact, if they were accurate. Having excluded the possibility of concoction, on the balance of probabilities, it appears to me that there was no reason for his Honour to exercise his discretion so as to exclude the evidence.

20 The other ground which in my view does not have substance is one which complains of the following direction:

"If you conclude, after considering the evidence as a whole, that there is a reasonable possibility that the wounds sustained by the deceased was self-inflicted, even if you do not accept that they definitely were self-inflicted, that would be enough to give rise to a reasonable doubt in your minds as to the guilt of the accused and would lead accordingly to a verdict of not guilty."

The complaint made about this direction is that the correct direction would be that if the jury concluded, after considering the evidence as a whole, that the Crown had not proved that there was no reasonable possibility that the wound was self-inflicted, then they should acquit. I am unable to see that casting this direction into a more complex form, by the use of double negatives, improves it or makes it more accurate. It is true, as the applicant suggests, that this passage omits reference to the

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burden of proof; that is, that it is not clear from it that it is for the Crown to prove affirmatively that the applicant did stab the deceased. However, both at the beginning of his direction to the jury and at a number of other points, his Honour made it perfectly clear that it was for the Crown to prove every element of the offence beyond reasonable doubt, including proof of the element that the injuries which caused death had been inflicted by the applicant. Indeed, when the passage which I have quoted is read in its context, it is plain that the whole point of it is to illustrate for the jury the proposition that there was no onus on the applicant to prove some alternative version of the events or to prove that he had not inflicted the injuries. Immediately following the passage from which I have quoted, his Honour said:

"So you do not have to conclude that the deceased stabbed herself. If that is a reasonable possibility it should result in your having a reasonable doubt as to the guilt of the accused."

His Honour then went on in the next sentence to remind the jury again that the burden of proof was upon the Crown.

21 Far from casting any onus onto the applicant, it is my view that the passage complained of, seen in its context, is one which was directed to making it clear that there was no onus upon the applicant and that it was not necessary for the jury to accept positively some alternative version of the events before acquitting him of causing the death of the deceased.

22 The two remaining grounds, however, do appear to me to have substance, and are related. In ground 5 (ground 4 having been abandoned) complaint is made about certain aspects of the prosecutor's cross-examination of the applicant. The applicant gave evidence at trial, which was broadly to the effect that he and the deceased had had an argument on the bridge. However, he had seen no knife and did not know how she suffered the injuries which caused her death. His account was, it is fair to say, somewhat vague and fragmentary, and it would at first blush appear odd that a person who had been so close to the deceased at the relevant time had seen nothing of what caused her injuries. It is true that Mr Riley likewise saw no knife and was unable to say how she had been injured, but he was standing a little further away, and was, it appears from the evidence, "blind drunk".

23 A number of questions were put by the prosecutor to the applicant in the form of propositions, such as "So you just can't shed any light on how she got those particular injuries then?". I do not think that these were improper. I do not consider that these passages would have been such as

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to suggest to the jury any reversal of the onus of proof. They were asked, not to suggest that the accused was obliged to give an explanation of the events in question, but to test an explanation which he had by then already given in his evidence in chief. It was appropriate for the prosecutor to ask the applicant, firmly and if need be repeatedly, what it was that he had seen, and to ask him to explain, if he could, why he had not seen more than he purported to have seen.

24 However, there are four questions which do appear to me to be objectionable. They, and the answers to them, were as follows:

"You say that in the time between running off the bridge and between when - just before she got to the Royal Mail she has decided that she'd blame you. Is that what you are saying? - Yes.

... For some reason she has decided to blame you by saying, well he stabbed me. Is that right? - No.

...

What I'm suggesting is that for some reason you're saying that she's wrongly accusing you, is that right? - I beg your pardon?

You're saying that she is wrongly accusing you? - Yes.

But you can't point to any reason why she would do that can you?"

His Honour observed in relation to the last of those questions that he did not consider it a proper question, and that line of enquiry was then abandoned. The last of the questions is precisely the sort of question which was discussed by the High Court in Palmer v R (1998) 193 CLR 1. It was plainly impermissible. The others, to the effect that for some unspecified reason the deceased had decided to blame the applicant, and that she was wrongly accusing him, suffered from a vice also discussed in Palmer; that is, they in effect invited the applicant to speculate about or to explain the mental processes of the deceased.

25 Unlike Palmer, or the trial considered in Rodd v The Queen [2000] WASCA 329, this was not a case in which the learned trial Judge associated himself with the cross-examination, or directed the jury that it raised an issue for their consideration; on the contrary, his Honour intervened, in the presence of the jury, to end it. The actions of counsel during a trial may cause it to miscarry; the hypothetical case of a

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prosecuting counsel who makes reference to an accused's prior conviction for a like offence affords an example. However, it would be a rare case in which a misstatement of the law by counsel, or questions asked by counsel founded on a wrong view of the law, would be a ground for quashing a verdict. Juries are routinely told by counsel, and invariably told by trial Judges, that it is the function of the Judge to instruct the jury as to the law, and that any different views expressed by counsel must be disregarded. The system of trial by jury is founded upon the assumption that jurors follow the instructions which they are given by the trial Judge. While cross-examination may be capable of causing irreparable prejudice, it is my view that any possible prejudice here was capable of being cured by an appropriate direction.

26 However, that cross-examination does I think lend additional weight to the need to ensure that a very strong and clear direction was given to the jury as to what use they could make of the statements allegedly made by the deceased, and as to the way in which they should consider the evidence of those statements. The way in which his Honour directed the jury in relation to these issues was as follows:

"The fact that the deceased was heard to say that she had been stabbed or, 'he stabbed me, call the police', is something you can take into account.

You will weigh it along with the evidence that she had been fighting with the accused and the medical evidence that she would probably not have realised the gravity of her injury at the time. Whether what she said was true, is a matter for you to determine remembering where the onus of proof lies in this case having regard to the evidence of previous injuries inflicted by her upon herself to which the medical evidence in exhibit 25 refer."

27 It is submitted for the applicant that his Honour should have warned the jury of the following matters:

• The jury had not had the benefit of having the deceased available for cross-examination about the truth of the statements made.

• That it was necessary for them to decide what the deceased had said, and that the witnesses had accurately recounted what she had said.

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• That they must be satisfied that the deceased did not concoct or distort to the disadvantage of the applicant.

28 Having regard to the cross-examination to which I have referred, it was submitted that it would also have been desirable to have reminded the jury specifically that it was not for the accused either to establish that those words had not been said or that they were untrue. Further, it was submitted that to say to the jury that they should "weigh" the evidence that the deceased had made those statements along with the evidence that she had been fighting with the accused and with the medical evidence about whether she would have realised the gravity of her injury, did not explain to the jury how those matters could be relevant or could assist them in weighing that evidence.

29 In my view, there is considerable force in these submissions. Unfortunately, the direction appears to assume as a fact, and to invite the jury to assume as a fact, that the deceased was heard to make those statements. Although it is true, as the Crown points out, that there was little if any cross-examination directed to the two witnesses to suggest that their evidence on that point was inaccurate, it should be noted that they gave evidence of different statements. One suggested that the deceased had said "He stabbed me", while the other heard words to the effect of "I've been stabbed". Ordinarily, there would be little difference between those statements, and each is consistent with the deceased having been stabbed by some other person. The second of them, however, is arguably also consistent with the deceased having, inadvertently or otherwise, stabbed herself during the course of a struggle.

30 It seems from his Honour's rulings in relation to the admissibility of this evidence, that what he had in mind in referring to the medical evidence and to the fight with the accused was the question of whether the events had occurred so quickly that the deceased had had no opportunity for concoction. However, that issue does not emerge clearly from the way in which his Honour left those facts to the jury.

31 The reference to the fighting, in particular, could have been understood in a number of ways - perhaps as giving rise to malice and a motive to concoct on the part of the deceased but, more probably, as suggesting that in the course of a "fight", it might well happen that one of the combatants would stab the other. His Honour should have explained that it was necessary for the jury to be satisfied that the statements in question were made, that they meant that the applicant had stabbed the deceased, and that there was no concoction or distortion, before they

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could rely upon them. It would have been desirable for his Honour to direct attention to the questions of whether those statements appeared to be spontaneous statements forced from the deceased by the pressure of events, and of the extent to which the deceased might have had an opportunity, however brief, for concoction or distortion. Further, they would of course need to consider in looking at that question, the matter which his Honour did put squarely to them that being the evidence of previous injuries inflicted by the deceased upon herself.

32 Unfortunately, in my view the direction in question here failed to give the jury the assistance required in relation to this evidence. A jury could not be expected to deal with hearsay evidence of this kind without appropriate direction, and the evidence was of significance to the Crown case. I would therefore grant leave, allow the appeal, quash the applicant's conviction and order a new trial.

33 ROLFE AJ: I have had the advantage of reading in draft form the reasons of Wheeler J. I agree with her Honour's reasons for granting an extension of time, if there be merit in the appeal, and for rejecting the two grounds of appeal, which she has. I also agree, essentially for the reasons given by her Honour , that leave to appeal should be granted, that the appeal should be allowed and the consequential orders proposed by her should be made. However, I wish to add certain reasons of my own as to why the appeal should be allowed and, in doing so, I gratefully adopt her Honour's statement of the facts.

34 The first ground of appeal, to which I propose to refer, is ground 2, which asserts, in essence, that the learned trial Judge erred in failing to give a proper direction to the jury in relation to the hearsay statements in a number of ways set forth in the ground: AB page 32.

35 It was not in issue that the totality of his summing up devoted specifically to this point appears at AB page 394 in the following terms:

"The fact that the deceased was heard to say that she had been stabbed or, 'he stabbed me. Call the police' is something that you can take into account.

You will weigh it along with the evidence that she had been fighting with the accused and the medical evidence that she would probably not have realised the gravity of her injury at the time. Whether what she said was true, is a matter for you to determine, remembering where the onus of proof lies in this

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case and having regard to the evidence of previous injuries inflicted by her upon herself, to which the medical records in exhibit 25 refer."

36 It did not seem to be in issue between the parties that the correct test for the admission of such hearsay evidence, and the direction to be given by the trial Judge in the event of that occurring, was stated by the House of Lords in R v Andrews [1987] 1 AC 281. At page 300, Lord Ackner, with whom the other Law Lords agreed, summarised the position confronting a trial Judge "when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as 'hearsay evidence' ".

37 His Lordship said that the primary question the Judge must ask himself is whether the possibility of concoction or distortion can be disregarded. He said that to answer that, the Judge must consider the circumstances in which the particular statement was made, to satisfy himself "that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection": page 301.

38 His Lordship nextly referred to the requirement that the statement be sufficiently "spontaneous, and to the fact that quite apart from the time factor there may be special features in the case relating to the possibility of concoction or distortion". He further said:

"The Judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.": (page 301)

39 He referred to the weight to be attached to the statement and to the possibility of special features that may give rise to its being in error.

40 At page 302, he continued:

"Where the trial Judge has properly directed himself as to the correct approach to the evidence and there is material to entitle him to reach the conclusions which he did reach, then his decision is final, in the sense that it will not be interfered with on appeal. Of course, having ruled the statement admissible, the Judge must, as the Common Sergeant most certainly did,

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make it clear to the jury that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said to them. Further, they must be satisfied that the declarant did not concoct or distort to his advantage or the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill will. Further, where there are special features that bear on the possibility of mistake then the juries' attention must be invited to those matters." (my emphasis)

41 The facts in this case show that the applicant was living with the deceased in a highly unsettled de facto relationship. On the afternoon when the deceased was stabbed, she and the applicant had been engaged in a severe altercation during which the applicant had punched and pushed her. There is no doubt that the deceased was adversely affected by alcohol on the afternoon. Prima facie, accordingly, there was room for concoction or distortion and for the operation, so far as the deceased was concerned against the applicant and, perhaps, vice versa, of malice or ill will. The whole situation was very sad, but the facts were such as, in my opinion, to demand that the learned trial Judge complied with the basic requirements to which Lord Ackner referred.

42 In my respectful opinion, he did not. His summing up invited the jury to weigh the hearsay statements with the factors to which he then referred, although he gave little indication of the purpose of carrying out the exercise. He then left the jury with the somewhat simplistic proposition that it was for them to determine whether what the deceased said was true and reminded them of the onus of proof and where it lay. Finally, he referred to the evidence that on previous occasions, the deceased had inflicted injuries upon herself by the use, inter alia, of sharp instruments.

43 In my respectful opinion, the weight and effect of the hearsay evidence was such as to demand a very careful exposition by his Honour of matters to which the jury should have regard. This, in my view, included the requirement that he should have told them that they must be satisfied that the deceased had neither concocted nor distorted to her advantage or to the disadvantage of the applicant the statements upon which reliance was placed by the Crown. Nextly, in my opinion, his Honour should have directed the jury that they must be satisfied that the deceased was not activated by any malice or ill will, which was a particularly important feature having regard to the physical assault

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perpetrated by the applicant upon the deceased shortly before the statements were made. Finally, and in this regard, his Honour touched upon the matter, I am of the respectful opinion that there should have been a more detailed direction in relation to the "special feature", namely, the evidence that on previous occasions, the deceased had inflicted injuries on herself.

44 He should then, in my opinion, have instructed the jury that it would have been appropriate for them to have regard to all those matters in deciding whether the Crown, which bore the onus of proof, had satisfied them to the requisite degree that what the deceased had said was true.

45 Obviously, all these matters were ultimately matters for the jury. But far from them being put to the jury, they were merely invited to weigh the statements in the manner to which I have referred and to determine whether what she said was true conformably with the onus of proof.

46 Mr K P Bates, who also appeared at the trial, submitted that his Honour had said sufficient to alert the jury to the problems with which they were confronted. In my view, this submission must be rejected. First, having referred to the statements and having told the jury that they were something the jury could take into account, his Honour invited them to weigh the statements with the evidence that the deceased and the applicant had been fighting with each other and the medical evidence that she probably would not have realised the gravity of her injury at the time.

47 However, his Honour did not go the further step, which I regard as being a vital step, of telling the jury why they should engage in that exercise, namely, because it was necessary for the jury to be satisfied that the deceased had neither concocted nor distorted the statement and was not actuated by malice or ill will. I do not consider that the jury could have divined from the summing up that those were matters they had to consider because of the facts to which his Honour invited them to have regard in weighing the evidence.

48 Secondly, his Honour then left the matter to the jury, subject to one matter, on the basis as to whether what the deceased said was true. However, in my opinion, that question could not be considered in the circumstances of the admission of hearsay evidence, unless the jury was specifically and carefully instructed that the purpose of carrying out the exercise was to negate in their minds concoction or distortion, or malice or ill will.

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49 Thirdly, there was the special feature in this case of the deceased's having previously self-inflicted wounds. In my respectful opinion, the jury should, once again, have been specifically and carefully directed to regard that matter as one, which they were entitled to take into account in determining the truth of what was said. However, as the matter was left to the jury, it appeared after the statement that it was for the jury to determine whether what she said was true.

50 I am fully appreciative that the summing up must be read as a whole. However, reading this part of the summing up, which was not further expanded upon elsewhere, leads me to the conclusion that there was a failure to propound to the jury in either an orderly manner or at all, matters which they should have considered when determining the question whether what the deceased said was true.

51 In my opinion, this is particularly significant when one is dealing with hearsay evidence, which is only admissible in limited circumstances requiring, in my view, that the jury be fully and properly instructed as to the matters to which they may have regard in determining its veracity to the required level.

52 I consider that the failure by his Honour to direct the jury fully, in the circumstances of this case, may well have caused a miscarriage of justice.

Another ground of appeal

53 The other ground of appeal to which I propose to have regard is that concerning the manner of cross-examination of the applicant. The applicant gave sworn evidence that he had not stabbed the deceased. The only persons in the immediate vicinity were the applicant, the deceased and one of her relatives, who did not see her stabbed.

54 The restraint upon cross-examination does not, of course, go to challenging, in appropriate ways, denials made by the applicant of his involvement. The question in the present case is whether certain of the cross-examination of Mr Bates was permissible. He conceded that some was not, although, as I understood his submission, this did not lead to a breach of the principles in Palmer's case. Much of the questioning, to which I shall refer, went to the question, either expressly or impliedly, of the deceased's motive for not telling the truth. In that way, there is a link with the first round of appeal with which I have dealt.

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55 In Palmer v The Queen (1998) 193 CLR 1, the question arose in circumstances where the accused was charged with sexual offences against a 14-year-old child and was asked in cross-examination whether he could suggest any reason why she would invent allegations against him, ie, what motive she had for so doing. He could not. It was held that not only did the child's account gain no legitimate credibility from evidence that the accused could not suggest a motive for her to lie, but that, in the circumstances, the asking of the question had such a prejudicial effect that there may have been a miscarriage of justice. In the present case, Mr Bates put a number of questions to the accused seeking to ascertain from him why the deceased would assert that he had stabbed her if he had not. Thus, he raised the question of the deceased's motive for making those statements.

56 In their joint judgment, Brennan CJ, Gaudron and Gummow JJ recorded the question, which was to the effect that:

"... you would really, it seems, be at an absolute loss to think as to why she should make up the allegations?"

And the answer:

"I have no idea why she has said what she has."

57 At the end of the cross-examination, their Honours noted that the following questions were asked and answers given:

"At this stage, as you sit there today, you can't think of any reason, or anything you have done to her?---No, I haven't.

As to why she would make this up?---I am saying that to you that is correct."

58 At page 7, their Honours said:

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the

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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 complaint has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case, 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."

59 The last sentence states, in my opinion, the vice in a number of Mr Bates' questions, which he conceded were not proper questions.

60 Their Honours then cited with approval from the judgment of Gleeson CJ in F (1995) A Crim R 502 at 511 - 512:

"At a criminal trial the critical question is whether the Crown has 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."

61 After considering some other statements to the same general effect, their Honours, at page 9, said:

"As Hunt CJ at CL pointed in R v Uhrig 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. In my view, that danger of such illegitimate speculation is a sufficient reason for saying

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that the rhetorical question should not be raised in such a case.'"

62 Their Honours concluded that the correct view is that absence of proof of motive is entirely neutral and [10] continued:

"It is necessary to distinguish between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie."

63 In my opinion, there were a number of questions asked by Mr Bates of the applicant, which offended the principles to which I have just referred. The questions upon which Mr R W Richardson, who appeared before this Court for the applicant but not at the trial, relied in his written submissions are set forth on pages 15 and 16 thereof.

64 At AB 339, Mr Bates put directly to the applicant that he stabbed the deceased, which he denied. The following questions and answers followed:

"You did not. So you just can't shed any light on how she got those particular injuries then?---I wouldn't know.

You wouldn't know. You say that in the time between running off the bridge and between when - just before she got to the Royal Mail she has decided that she'd blame you. Is that what you are saying?---Yes." (my emphasis)

65 A matter in issue was whether the deceased had concocted or distorted the evidence blaming the applicant. Thus, as I have suggested, this ground of appeal is related to the first. These questions, in my opinion, invited the jury to accept the truth of the statements allegedly made by the deceased unless some positive answer was given to each by the applicant and, therefore, offended the principles for which Palmer stands as authority.

66 The matter was exacerbated on the same page by the following questions:

"You are saying that she has blamed you, aren't you?---No.

What are you saying then?---I didn't.

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What I am suggesting is that for some reason you are saying that she's wrongly accusing you. Is that right?---I beg your pardon?

You are saying that she is wrongly accusing you?---Yes.

But you can't point to any reason why she would do that, can you?

WHITE J: Mr Bates, I don't know that that is a proper question."

67 In my view, it was plainly impermissible. So also, in my respectful opinion, were the ones preceding it, which I have quoted. They, equally, offend the principles in Palmer for the reasons I have given.

68 Mr Richardson nextly relied upon questions at AB 344:

"Never seen it, right. Somehow she has ended up with these injuries and you can't help us why. Is that right?---Beg pardon?

Somehow she has ended up with these injuries and you can't help us as to how she got them?---I wasn't there."

69 The clear inference from these questions was that there was some obligation on the applicant to "help" the Crown as to how the injuries were sustained and that the inability to do so was relevant to some issue. It was not. The questions, in my opinion, were highly prejudicial and would leave the jury with the clear understanding that there was an obligation on the applicant to give some explanation as to how the injuries were sustained. There was, in my opinion, no such obligation on the applicant to give such help and to put that to him was impermissible as tending to suggest a reversal of the onus.

70 The principle in Palmer was considered by this Court in Rodd v The Queen [2000] WASCA 329. The case differed somewhat from Palmer in that the issue concerning motive was raised during closing addresses rather than during cross-examination of the accused. Ipp and Owen JJ, who on this point formed the majority, Heenan J dissenting, said [29]:

"If it is not appropriate for the Crown to raise it as an evidentiary matter, then it is equally inappropriate for it to be

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raised in closing remarks. This seems to be the view taken in Latham v R [2000] WASCA 57 at [17]."

71 Ipp and Owen JJ, in dealing with this ground, noted two passages, which they regarded as critical in the summing up. Firstly, the learned trial Judge, in summarising the main features, had said to the jury:

"The Crown also asks, 'why would this girl make it up?'. There's simply no evidence of any motive, and asks how a 17-year-old girl - not any 17-year-old but the girl you saw giving her evidence. How could she have made up this lengthy and complex complaint and then come to Court and consistently give in her evidence, both in chief and under cross-examination, and suggest that that consistency shows that it must be true."

72 The second passage was when the learned trial Judge commented that the Crown had asked whether the sexual behaviour alleged was consistent "with sex which a shy young girl, such as this 17-year-old, would have on her first occasion of having sex".

73 In par [28], their Honours quoted from the joint judgment of Brennan CJ, Gaudron and Gummow JJ at pages 7 - 8, being a passage I have already set forth and, at par [29], they continued:

"The mischief to which the principle arising from Palmer is directed is the tendency of an enquiry into motive to threaten the integrity of the trial process by effectively reversing the onus of proof. As Pincus JA put it in Taylor v R [2000] QCA 96 at [8], the danger is that a jury might consider that unless there were shown to be a reason why the complainant should lie about the matter, her story should be accepted. Palmer involved the cross-examination of an accused person. This case is different in that the issue was raised during closing addresses rather than in the course of the evidence by way of cross-examination."

74 However, as I have noted, their Honours were of the view that it did not matter in which circumstance the problem arose.

75 In par [30], their Honours further considered the judgment of Pincus JA in Taylor v R [2000] QCA 96 and his Honour's reference to what Thomas JA had said in Topalidis v R [1999] QCA 367. In that case, Thomas JA had expressed the view that motive will almost inevitably be considered seriously, and added:

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"What the Crown must not do, and what the Crown must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth."

76 The questioning of the applicant in the present case offended against this principle.

77 Thereafter [31], their Honours set out what counsel for the Crown had said in his closing address, commencing with the sentence:

"Why, you might say, might a person of this age and background make a complaint that wasn't true?"

78 Their Honours noted at the end of that paragraph, that the point being made was, "their pleas were internal, bizarre" and "humiliating" incidents and that it was highly unlikely that the complainant would have made them up.

79 At par [32], their Honours said:

"However, once the issue had been raised, it was, in our view, incumbent on the trial Judge to proceed in the manner set out in Topalidis. Accordingly, while it was legitimate to consider whether any motive existed for bringing a false complaint, the Court had to ensure the jury did not gain the impression that the defence had an onus of showing that there was a particular reason for the complainant not telling the truth."

80 In par [33], their Honours continued:

"Once the issue (namely why should the complainant make it up) was squarely before the jury in that form, we think a rider to the effect that the defence bore no onus of establishing a motive was essential. In our opinion, the trial Judge erred in failing to make this plain.

[34] In our opinion, there is a reasonable probability that the jury were influenced significantly by the lack of motive on the part of the complainant to lie. That being so, we consider that, in the absence of a direction along the lines indicated in

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Topalidis, it is not possible to say that no substantial miscarriage of justice has occurred.

[35] The principle arising from Palmer is clear and we think it requires a trial Judge to exercise considerable care in all cases in which the issue of a motive to lie is raised. Each case must be judged according to its own facts. But, in our opinion, it would be a prudent course for a trial Judge to repeat the warning that the accused does not have to prove anything, at the time when he or she is addressing the jury on the motive issue."

81 In the result, their Honours were of the opinion that the appeal should be allowed and a re-trial ordered.

82 Heenan J, who dissented, was of the view that the comments made would not have left any reasonable juror with the impression that there was an onus on the defence to show that there was a particular reason why the complainant might not be telling the truth. His Honour was also of the view that the fact that the trial Judge had "merely reminded" the jury of those comments would not have led to that conclusion.

83 In relation to another remark made by his Honour, which was not one as to which there was any evidence, Heenan J was of the view that the jury interpreted her Honour's comments as referring to the first occasion of the complainant's having sex with the appellant, rather than having sex with anyone and, for those reasons, considered that the Palmer ground had not been made out.

84 Mr Bates submitted, correctly, that in a lengthy passage, his Honour had instructed the jury that there was no onus on the applicant to prove anything. However, his Honour made no attempt to link this direction with the question of motive, which the prosecution had raised. Further, in the view I take, the questioning was so prejudicial to the applicant that it required a very clear direction, in the context of the motive attributed to the deceased, to even start to remove the prejudice.

85 On both grounds, the orders I would propose are:

(a) Leave to appeal be granted.

(b) Appeal allowed.

(c) Quash the applicant's conviction.

(d) Order a new trial.