Malho v The State of Western Australia - [2010] WASCA 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MALHO -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 41

CORAM: McLURE P
OWEN JA
WHEELER JA

HEARD: 23 NOVEMBER 2009

DELIVERED : 5 MARCH 2010

FILE NO/S: CACR 44 of 2009

BETWEEN: FRANCOIS MALHO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :IND 812 of 2008

Catchwords:

Criminal law and procedure - Appeal against convictions - Sexual offences, assaults, stealing - Whether testimony implicating accused was 'identification' evidence - No evidence led of complainant's motive to lie - Comments by prosecutor in closing addresses - Whether comments invited speculation by jury as to motive to make up a story - Whether comments infringed principles in Palmer v The Queen - Whether trial judge's directions sufficient to avoid prejudice

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169
Ferry v The Queen [2003] WASCA 207
Longman v The Queen (1989) 168 CLR 79
Palmer v The Queen (1998) 193 CLR 1
R v E (1996) 39 NSWLR 450
R v T [1999] QCA 376
R v Taylor [2000] QCA 96
R v Topalidis [1999] QCA 376
R v Uhrig (Unreported, NSWCCA, 24 October 1996)
Rodd v The Queen [2000] WASCA 329

McLURE P: I have had the advantage of reading the reasons for judgment of Owen JA. I agree that ground of appeal 1 should be dismissed for the reasons he gives. However, I have formed a different view on ground of appeal 2 which I would dismiss.
The relevant background is set out in the reasons of Owen JA. It is sufficient for present purposes to note the following. The statement of the prosecutor at the heart of ground 2 related solely to the three sexual counts the subject of the five count indictment, all of which counts were allegedly committed by a single offender as part of a single transaction. It was not in dispute that the complainant had on the occasion in question been the victim of an assault occasioning bodily harm. The complainant did not give evidence identifying the appellant as the offender. The appellant denied he was the offender and adduced alibi evidence from his brother. The appellant did not give sworn or unsworn evidence at trial.
The offences were said to have occurred on or about 13 June 2003. Shortly thereafter the complainant gave a statement to police and spoke to a doctor. The complainant gave a further statement to police in December 2007 after a review of the matter initiated by police. The trial took place in January 2009. The complainant was a poor historian and witness. There were inconsistencies between the complainant's evidence at trial, his out of court statements and aspects of the objective evidence. For example, the defence case was that the complainant's evidence at trial as to the nature and extent of the violence inflicted on him was inconsistent with the objective evidence of the extent of his actual injuries. The appellant contended the complainant had exaggerated the extent of the physical violence. The appellant also identified inconsistencies between the complainant's evidence at trial relating to the identification of the assailant and his female associate and his identification evidence given to police including during a photo‑board identification. Further, there were a number of inconsistencies between the complainant's evidence and his out of court statements to police. He did not tell police that he was attacked in his lounge room and he did not tell them that the offender had attempted to anally penetrate him. His evidence at trial also contradicted his statement to police as to the amount and value of what had been stolen and a statement to his doctor that there had been forcible entry into his unit.
The complainant explained the inconsistencies by saying he was confused on the two occasions he spoke to police and when he spoke to the doctor. The complainant also gave evidence that he had continuing nightmares about the offences. It was suggested on behalf of the appellant that the complainant's evidence at trial related to what happened in his nightmares which had displaced what had actually happened. On my reading of the cross‑examination of the complainant and of defence counsel's address to the jury, the primary case for the appellant was that the complainant's evidence was unreliable and the jury could not be satisfied that the sexual and robbery offences had occurred.
For the sake of completeness it should be recorded that there was independent evidence that immediately after the offences the complainant was extremely agitated and distressed and complained to his neighbour that he had been sexually assaulted. Further, the underpants he had been wearing were torn.
For ease of reference I propose to set out that part of the prosecutor's statement to which objection is taken together with contextual material:
He has been through a traumatic experience if you accept what he says is right. He's done the best he can you might think. It's speculative as to what he might - as to why he might have, say, made up this story. I mean, there's no pride, there's no dignity, there's no kudos that you get amongst your mates by saying, 'Not only was I ripped off of my cannabis, but someone forced me to put their penis in my mouth'. That's hardly something that you're going to brag about.
It's one thing to say that you've been beaten up and look at the injuries, it's another thing to say, 'Hey, someone bent me over, pulled my pants down and took my underpants off, and tried to have sex with me up my backside'. And yet he has come along and he has said that. You might think that has a ring of truth about it.
You might think that this is, as they say, so strange as to be true. It is not the sort of thing that would ordinarily happen. There's no suggestion that he was hallucinating and in fact you have information that supports what he has to say. You have him in good condition when he is talking to the man outside his unit (ts 465 ‑ 466).
Later, when drawing the jury's attention to the fact that there was no evidence to contradict the complainant's account of what happened in his unit, the prosecutor continued:
You'll recall also what he says about what the man told him at the time. The assailant told him and said to him. He told him that he's done it before with young boys and older people and girlfriends. Is [the complainant] making all that up, this conversation? It rings true as to something that someone who is trying to dominate and humiliate their victim might say (ts 469).
The appellant contends that the first, second and last paragraphs quoted above infringe the rule in Palmer v The Queen (1998) 193 CLR 1. Palmer had been charged with 11 counts of sexual offences against a 14‑year‑old girl. He was a friend of the complainant's mother. The complainant had been cross‑examined to the effect that she had a motive to lie namely payback or revenge. Palmer was asked in cross‑examination whether he could suggest any reason why the complainant should invent the allegations against him. He said he had no idea why she might have done so. In a joint judgment the majority in Palmer said:
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 [8].
That discussion shows it is necessary to have regard to all the surrounding circumstances of the case in order to determine whether the jury has been invited to accept the complainant's evidence unless some positive answer to that question is given by the accused.
With one reservation, the majority also approved the statement of Sperling J in R v E (1996) 39 NSWLR 450:
[W]e are dealing here with a case where there is no direct evidence of an actual motive to lie, nor evidence from which a specific motive to lie could reasonably be inferred. To ask [of the accused], 'Why would he or she lie?' in such a case is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood. That is not to try the case on the evidence, but to speculate concerning unproven facts. …
Secondly, the question is unfair to the accused. How can the accused or his counsel be expected to see into the mind of the complainant, and be held accountable for failing to discern whatever motive there may be for a false story? …
Thirdly, the effect of the question is to reverse the onus of proof. The question implies that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant's evidence and convict (464).
The majority noted that the third observation may overstate the effect of the question in a particular case. The majority approved the statement of Hunt CJ in R vUhrig (Unreported, NSWCCA, 24 October 1996) 16 ‑ 17 that to permit an accused to be asked 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.
There is an additional and related point made in the joint judgment. A complainant's account gains no enhancement of credibility from the absence of evidence of a motive to lie (as distinct from a proven absence of motive) [9].
The mischief to which the Palmer principle is directed may also arise if the rhetorical question 'Why would the witness lie?' is raised during closing addresses rather than in cross‑examination of the accused: Rodd v The Queen [2000] WASCA 329; Ferry v The Queen [2003] WASCA 207.
However, the fact that a prosecutor or trial judge has raised the issue of a complainant's motive to lie does not of itself give rise to the mischief to which the Palmer principle is directed even if (as in this case) motive was not the subject of direct evidence at trial: R v Taylor [2000] QCA 96. Pincus J said:
I do not believe that anything which was said by the High Court in Palmer… holds that it is not material for a jury to think about why a complainant, who may possibly be lying rather than mistaken, would lie. A jury would, reasonably enough, regard it as an impermissible intrusion into their function if they were instructed not to take that factor into consideration.
What must not be done is to permit an 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 that 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: R v Topalidis [1999] QCA 376.
I turn now to the application of the legal principles to the facts of this case. The prosecutor did not ask the rhetorical question 'Why would the complainant lie?' nor did he suggest its answer or convey an argument to the effect that there was no apparent reason why the complainant would lie therefore the complainant must be telling the truth. The prosecutor told the jury that it was speculative as to why the complainant might have made up his evidence concerning the sexual abuse. He then went on to comment on the reasons why they should accept the complainant's evidence. In substance that was because it was not the sort of thing a man would say to add to the drama of his experience to impress his mates and was such an affront to a man's masculinity as to make the complainant's evidence as to the sexual assaults believable. There is a distinction between the motive of a particular person for lying and objective measures for testing the probabilities. I would categorise the comments as falling within the latter category.
Even if the jury understood the prosecutor's comments to be a rhetorical question which carried with it the suggested answer that there was no apparent reason for the complainant to lie, there is no proper basis to suggest the prosecutor implied that unless the jury were satisfied by the appellant that the complainant had a motive to lie, they should accept the complainant's evidence and convict. As with the address of defence counsel, the prosecutor's primary focus in his address was on the reliability of the evidence of the complainant not its truthfulness. I see no reasonable basis upon which a jury could gather the impression that the defence had any onus of showing that there was a particular reason for the complainant not telling the truth or that the absence of any perceived reason for a false complaint strengthened the suggestion that the complainant must be telling the truth.
Moreover, the trial judge's summing up could have left the jury in no doubt that they were required to determine the facts on the evidence they had heard and were not permitted to speculate about matters which were not in evidence (ts 492, 533); and that the State carried the onus of proving the charges beyond reasonable doubt (ts 495 ‑ 496), which message was repeated in the course of a detailed Longman warning relating to the complainant's evidence (Longman v The Queen (1989) 168 CLR 79). The trial judge said:
We don't have any independent direct evidence with respect to counts 2 to 5. That relies solely on what [the complainant] has told you. So it follows, in effect, that the State case relies heavily on what [the complainant] has told you and that in turn means that you have to assess his reliability and credibility. …
The passage of the years between the alleged events and now the trial raises the question that you must consider which is the reliability and accuracy of [the complainant's] recollection and whether or not you can safely rely and act upon it. …
Now, if you take those factors into account, you might find that it would be unsafe, but it's a matter for you, to find the accused guilty of the five charges presented against him unless you have carefully scrutinised what [the complainant] has told you with great care and, having paid due regard to it and applying what I have just told you about it, if you were then satisfied beyond reasonable doubt as to the truth and accuracy of his testimony, you can act upon it. If you are not so satisfied, of course, you

must act in an appropriate way and find the accused not guilty (ts 531 ‑ 532).

The appellant has not established that either ground of appeal gives rise to a miscarriage of justice or other appealable error. It follows that ground 3 must fail. I would grant leave to appeal on ground 2 but dismiss the appeal.
OWEN JA: After a trial by jury in the District Court the appellant was convicted of one count of assault occasioning bodily harm, one count of attempted sexual penetration and one count of stealing with violence. The appellant appeals against his conviction.
On 29 June 2009 Miller JA ordered that the application for leave to appeal be referred through to the hearing of the appeal. Shortly before the appeal hearing the appellant gave notice that he would seek leave to rely on new evidence, but the application was not pursued. I need say no more about it.

Background

On 13 June 2003, the complainant (GH) was at his home unit in a suburb of Perth. GH was a 57‑year‑old unemployed man who sold cannabis from time to time from his unit. That evening, a woman by the name of Tammy McNair (who was or had been in a relationship of sorts with the appellant) went to the unit to purchase cannabis.
The State's case was that McNair and the appellant had been cycling in the area and that the appellant wanted drugs. McNair went into the unit to negotiate the transaction, while the appellant waited on the other side of the road. McNair did not have enough money to make the purchase and failed to persuade GH to give her credit. McNair went outside and reported to the appellant what had happened. According to the State, the appellant then took over the negotiations with GH. He managed to get inside the unit with GH and they agreed the appellant would purchase cannabis to the value of $100. When GH went to get the drug the appellant grabbed him and began to punch him repeatedly. They ended up on the floor of the bedroom and then on the bed. Again according to the State's case, the appellant penetrated GH's mouth with his penis and attempted to penetrate GH's anus. He was unsuccessful in the latter attempt. GH broke free and managed to arm himself with a knife. The appellant then fled from the unit, taking with him the cannabis, a quantity of money from GH's wallet and a cigarette lighter. The appellant and

McNair left the scene on their bicycles and went (separately) to the home of a friend.

GH eventually emerged from the unit and went to a liquor store that was across the road and then to a neighbour's unit, where he said he had been sexually assaulted. The police were called and commenced inquiries. In the following days the police removed from the unit (or were handed by GH) some items including a jumper, but GH was not able to identify his assailant and there was little other evidence.
No further action occurred until September 2007 when police reopened the case under a 'blanket review'. McNair and the appellant (who were by then no longer in any sort of relationship) became persons of interest in the investigation. In December 2007 police officers spoke to McNair but she was reluctant to make a statement. In January 2008 she did so and implicated the appellant. Police officers spoke to the appellant but he denied any involvement. They took a DNA sample from him. The jumper that had been given to police by GH was also tested for DNA traces. Evidence given at trial was that the appellant could not be excluded as a contributor of the DNA found on the jumper.
The appellant was charged on indictment with five offences all arising from the incident at GH's unit on 13 June 2003; namely:
(a)one count of unlawful assault occasioning bodily harm (Criminal Code s 317(1));
(b)one count of aggravated sexual penetration, by inserting his penis in GH's mouth (Criminal Code s 326);
(c)two counts of attempted aggravated sexual penetration, by attempting to insert his penis in GH's anus (Criminal Code s 326 and s 552); and
(d)one count of stealing property with violence, the property being a cigarette lighter, a quantity of cannabis and $100 in cash (Criminal Code s 378(5)(b)).
The appellant pleaded not guilty and was tried before a jury in the District Court in January 2009. The main witnesses called by the State were GH and McNair. Other testimony came from members of the public who had seen or spoken to GH or McNair that night, police officers, medical witnesses and persons concerned with the DNA testing. The appellant did not testify although his brother was called to give (among other things) alibi evidence. The appellant was acquitted on the count of aggravated sexual penetration and on one of the attempted aggravated sexual penetration counts. But he was convicted on the other three counts; namely, assault occasioning bodily harm, one of the counts of attempted aggravated sexual penetration and the charge of stealing with violence. He was sentenced to imprisonment for a term of 3 years. There is no appeal against the sentence.

Grounds of appeal

There are three grounds of appeal:
1.[The trial judge] erred both in law and in fact when he failed to adequately direct the jury about the evidence capable of undermining the testimony of [McNair] such that there was a miscarriage of justice;
Particulars:
(i)that the description of the offender provided by [GH] was said to be dissimilar to the appellant;
(ii)the inability of [GH] to identify the offender from photographs he was shown shortly after the incident;
(iii)the inability of [GH] in 2007 to identify the appellant as the offender from a photoboard that contained an image of the appellant;
(iv)[GH's] selection of someone other than the appellant from the photoboard as a person 'more or less close to the same' as the offender;
(v)the inability of [GH] in 2007 to identify [McNair] as the female who came to his unit shortly before the appellant;
(vi)[McNair] had a strong dislike of the appellant.
2.The trial judge erred in law when he allowed the prosecutor to address the jury in terms contrary to the principle stated in Palmer v R (1998) 193 CLR 1;
Particulars:
(i)counsel invited the jury to speculate as to why [GH] would testify as he did if it wasn't true.
3.If it is not sufficient to individually found a miscarriage of justice, the above two grounds and the errors of law and fact on the part of the trial judge referred to therein, when viewed cumulatively, are such that a miscarriage of justice occurred.
It is to be noted that the appellant alleges specific errors of law or fact that have occasioned a miscarriage of justice. He does not allege that, having regard to the evidence, the convictions are unreasonable or cannot be supported. It is appropriate, therefore, to confine a review of the evidence to matters that relate to the specific errors for which the appellant contends.

Ground 1: Identification and McNair's evidence

Although it is not particularly clear from the way the first ground is drafted, it seems to involve two propositions. First, there was no evidence sufficient to identify the appellant as the offender. Secondly, the State's case relied heavily on the evidence of McNair 'identifying' the appellant as the offender and the jury was not adequately directed as to the shortcomings in her testimony.
The first of those propositions can be dealt with shortly. The word 'identify' was used in counsel's addresses and in the trial judge's directions to the jury concerning McNair's evidence, and I will come back to that shortly. But in my view, the word 'identify' in these passages is not being used in the technical sense in which the term is understood in the species of evidence law known as 'identification evidence' and which has occupied the attention of the courts for decades, if not centuries. This was not an identification or recognition case. GH was not able to identify his assailant. No other person who testified at trial identified the appellant. The State did not rely on identification evidence in the strict technical sense. The factual premise of particulars (i), (iii), (iv) and (v) of ground 1 is correct but it does not alter the fact that this was not an identification case. Particular (ii) was the subject of the foreshadowed application to rely on new evidence. As I have already mentioned, that application was withdrawn and the second particular was not pursued. The real issue in this case (at least for present purposes) is the characterisation of the evidence McNair gave as to what happened that evening.
McNair was called to give evidence by the State. She testified that she met the appellant around March 2003 and commenced a relationship with him. They lived together for a few weeks from April 2003. It had been an 'on‑off' relationship and was volatile and violent. They were not living together at the time these offences occurred. On the evening in question McNair was at the home of her friend JH. The appellant came there to talk to her. They went for a bicycle ride and the appellant told her he wanted drugs. She said she knew someone from whom she had procured drugs on previous occasions. This was GH. She and the appellant went to GH's unit and she first approached (alone) but was not able to persuade GH to give her drugs on credit. She went back to where the appellant was standing and reported the failure to him. The appellant told her he would speak to GH himself. By this time GH was outside the unit. She saw GH and the appellant talking and the latter became agitated and started yelling and swearing.
At that stage McNair took her bicycle back across the other side of the road. She saw two women she vaguely recognised and had a conversation with them. I interpolate here that the two women gave evidence. They saw someone speaking to GH but could not identify the appellant as that person. Nor (in 2007) could they identify McNair as the person to whom they had spoken.
McNair said she did not actually see GH and the appellant go into the unit because by that time she had gone to the other side of the road and had commenced the conversation with the two women. Some time later (it could not have been more than 10 minutes) she saw the appellant run, grab his bike and pedal off. She also testified that she saw blood on his hands. McNair said she got on her bicycle and returned to JH's home. About 30 to 40 minutes later, the appellant arrived. In her evidence in chief, this exchange occurred:
When he arrived, did he say anything or do anything---When I seen the blood on his hands, I actually asked him, I said, 'What did you do to him?' He actually said, 'He got cheeky with me so I just gave him a slap', and then he started pulling out $25 marijuana bags, and lots of $20 and $5 notes, and was just throwing them at [JH's] front door.
JH also gave evidence and in this respect her testimony was substantially to the same effect as that of McNair. In cross-examination it was put to McNair, and denied by her, that the appellant did not go to GH's unit that day and that 'whoever was with you, it was somebody else'. Then this exchange occurred:
The only thing that you did and that, in fact, on 13 June 2003, the thing that you did on that day with [the appellant] was in the morning, you went to court with him---Well, I really don't know. I - and I'm - I'm being honest. I only know exactly what - about how it happened with [GH]. Whether he took off when I was at [JH's] I don't know. I know that [the appellant] came for a ride - I went for a ride with him, stood on the corner at [GH's]. I went over and asked [GH] for the pot. [The appellant] went back over there. Now, there's no mistaking who he was. 100 per cent it was [the appellant]. [The appellant] went back. He came back. He threw the money. He threw the pot, and it doesn't matter how it's twisted, how it's turned, it was 100 per cent [the appellant]. It was nobody else.
You, Ms McNair, are very angry at [the appellant], aren't you---No. I don't like him and I believe that justice needs to be served. I do think he is a parasite.
On the - - ----I've - I've seen the damage that he's done.
See, isn't it the fact that the only thing that you did with [the appellant] on the day that you went to [GH] was go to court with him in the morning---Are you going - is this the thing that you're repeat - you've said this six times.
I'm just putting to you - - ----And I've just told you I don't recall and all I know is 100 per cent, [the appellant] came down to [JH's], wanted to speak to me. Whether it was on that morning, after the court, we had a fight, he took off, I don't know, but I know that I and my children were at [JH's] house. He came there, he wanted to speak to me. I went for a ride with him and exactly what I have said is exactly what has occurred.
This is not identification or recognition evidence. It is direct evidence by McNair that a person who was well known to her with whom she had been in an intimate relationship accompanied her to GH's unit and had a confrontation with GH outside the unit. She did not say she had seen him enter the unit. She could not say (and did not attempt to say) what had happened inside the unit. For that, the jury had to rely on the evidence of GH. McNair gave further direct evidence that about 10 minutes later she saw the appellant (with blood on his hands) run to his bicycle and ride off. She also testified as to what she saw and heard about 40 minutes later at JH's home.
When he came to direct the jury the trial judge emphasised how critical McNair's evidence was to the State's case. He also reminded the jury that the defence had raised questions about the antipathy McNair bore towards the appellant. He said;
What's important for you to understand is that the State relies almost entirely on the evidence of [McNair] to prove who the offender was. So that means that you will need to accept her evidence in this regard beyond reasonable doubt.
If you don't accept what [McNair] said to you about identity and you don't find her to be truthful and reliable so that you cannot accept her beyond reasonable doubt, then you should probably find that the accused is not proved identity beyond reasonable doubt. (ts 515)
…
The defence says it's [McNair's] evidence who underpins the State case as to identity. [The two women] could not identify the accused, nor could [GH] for that matter. [The two women] could not identify Tammy McNair. (ts 515)
…
The defence case is that [McNair] is a dangerous witness. She ranted and raved about the [appellant]. She called him a parasite. Her evidence is inconsistent with other witnesses … (ts 519)
…
The defence says to you that [McNair] is a vindictive witness who is seeking to have the accused convicted of these charges. Now, it's a matter for you to determine her attitude towards the accused. But you need, when you come to examine that, to determine whether she was giving truthful and reliable evidence of the facts about which she was speaking. (ts 521)
…
When you consider Ms McNair's evidence, you should scrutinise it with due care bearing in mind her apparent hostility towards [the appellant]. What weight you give to her evidence is, of course, a matter for you, but you should approach her evidence with some caution.
Now, [the prosecutor] did mention to you the matter of identity. As I said, the State case is that [McNair] can directly identify the accused as the person having gone into the flat. She is the only person who can do that. (ts 533)
In my view, the word 'identify' in these passages is not being used in a technical evidence law sense. It refers to evidence that would enable the jury to be satisfied that the appellant was at GH's unit that evening and was, therefore, in a position to have attacked GH. It is direct, factual evidence given by McNair that a person well known to her accompanied her to the unit, had an animated conversation with GH at the door of the unit and later left the vicinity on his bicycle. It is evidence that implicates the appellant not because McNair identified him but because she was able to testify as to events she had seen and heard and in which she played some part and in which the appellant (a person well known to her) had participated. In my view, the situation did not call for a particular warning as to the problems of identification evidence in the strict sense.
I return to the two propositions that I set out in the opening of this section of the reasons and which are, I think, implicit in the first ground of appeal. There was direct evidence from McNair sufficient to 'identify' (as I have described that term) the appellant as the person present at the unit that evening. The jury could have been in no doubt that the State's case relied heavily on the evidence of McNair. The trial judge told them so. He reminded them of her 'apparent hostility' to the appellant and gave a warning that they would need to scrutinise her evidence. He reminded them that there was no other evidence 'identifying' the appellant. The effect of the trial judge's direction was that unless the jury accepted McNair as a truthful witness and accepted her evidence beyond reasonable doubt, the State would not have proved that the appellant was the offender.
In my view it was not necessary for the trial judge to go further in identifying the extent (if any) to which McNair's evidence had been 'undermined'. There was no miscarriage of justice in this respect. Ground 1 has not been made out.

Ground 2: The Palmer problem

The second ground of appeal raises difficult questions that often occur in criminal trials involving sexual assaults and which were the subject of attention by the High Court in Palmer v The Queen (1998) 193 CLR 1. A trier of fact confronted with the task of deciding whether or not a sexual assault occurred might ask why a complainant in such a situation would make a false allegation. Generally speaking, evidence is admissible to establish that a complainant has a motive to make and persist in false allegations. But it is not permissible to ask questions of an accused that require him or her to provide or suggest a reason why a complainant would lie. The mischief which these principles seek to alleviate is to avoid an effective reversal of the onus of proof or a diminution in the standard of proof.
The problem in this case arises from comments made by the prosecutor in his address to the jury. It does not arise from questions put to witnesses. The appellant did not give evidence at his trial. When GH gave evidence he was cross-examined at length about many things, including his description of his attacker, inconsistencies between his description of events in examination‑in‑chief and in his statements made to police, his drug taking and drug dealing habits and his contact with the Sexual Assault Resources Centre. But he was not asked any questions suggesting a motive to fabricate his story. In cross‑examination it was put to him (and denied) that 'the man in fact didn't try to place his penis into your anus' but that is quite different from suggesting a motive to lie.
As I have mentioned, the problem arises not from questions to witnesses but because of comments made by the prosecutor. Counsel for the State told the jury that they needed to focus on two issues: what happened in the unit and whether it was the accused who attacked GH. In relation to the first of those issues the prosecutor outlined the five charges and referred to the fact that the only person who could speak to those matters was GH. He went on to concede that GH could not be relied on for everything and described him as 'not the sharpest tool in the shed'. The prosecutor described GH as 'not a good historian about things' and as a person who could be vague. In other words, the prosecutor was conceding that there were (or may have been) issues concerning the credibility or reliability of GH's testimony. He then said:
He has been through a traumatic experience if you accept what he says is right. He's done the best he can you might think. It's speculative as to what he might – as to why he might have, say, made up this story. I mean, there's no pride, there's no dignity, there's no kudos that you get amongst your mates by saying, 'Not only was I ripped off of my cannabis, but someone forced me to put their penis in my mouth'. That's hardly something that you're going to brag about. (ts 465)
This is the passage on which counsel for the appellant placed primary reliance. But he also referred to two other passages that need to be read in conjunction with it:
It's one thing to say that you've been beaten up and look at the injuries, it's another thing to say, "Hey, someone bent me over, pulled my pants down and took my underpants off, and tried to have sex with me up my backside". And yet he has come along and he has said that. You might think that has a ring of truth about it. (ts 466)
You'll recall also what he says about what the man told him at the time. The assailant told him and said to him. He told him that he's done it before with young boys and older people and girlfriends. Is [GH] making all that up, this conversation? It rings true as to something that someone who is trying to dominate and humiliate their victim might say. (ts 469)
Although it was not referred to by counsel for the appellant there is a further passage that, I think, needs to be taken into account (and it appears immediately after the quote from ts 466 reproduced above):
You might think that this is, as they say, so strange as to be true. It is not the sort of thing that would ordinarily happen. There's no suggestion that he was hallucinating and in fact you have information that supports what he has to say. You have him in good condition when he is talking to the man outside his unit. (ts 466)
During closing addresses counsel for the defence raised the Palmer principle and submitted that the prosecutor had invited the jury to speculate as to why GH would lie about sexual matters with the consequent danger that the jury might embark on an impermissible reasoning process. It is a little difficult to tell from the way the trial transcript has been reproduced exactly when the objection was raised but it seems to have been during a break part way through defence counsel's address. It may not matter a great deal when the objection was made: the issue was certainly raised. The prosecutor replied that he did not think he had invited the jury to speculate and had not transgressed Palmer but that he would give it more thought before the trial judge addressed the jury. The trial judge did not begin his remarks until the following morning but there is no record of either counsel or the judge reverting to the Palmer question before his Honour commenced his summing up.
Palmer involved sexual offences against a 14‑year‑old girl. The accused denied that he had had any sexual contact with the girl. When the complainant was cross-examined it was put to her that she had 'taken a fancy' to the accused and that her allegations were 'some sort of pay back on him for some indiscretion he doesn't even know about'. Her answer was: 'I'm not lying'. The accused gave evidence. At the beginning of his cross‑examination, in answer to direct questions, he said he was at an absolute loss to think why the girl would have made up the allegations and that he had 'no idea why she had said what she has'. Questions to similar effect were repeated at the end of the cross‑examination. The majority found that the questions were impermissible and that a miscarriage of justice had occurred.
There was a factual aspect in Palmer that clearly influenced the outcome. The impugned questioning occurred immediately after an incident in which the complainant had manifested in the presence of the jury her rejection of the appellant's evidence (given in chief) of his innocence. The trial judge had sent the jury out while he instructed the complainant not to cry or to do anything to attract the jury's attention. According to the majority judges, this would have added to the significance of the cross‑examination. As the appellant had acknowledged that he could offer no reason to impeach the complainant's credit (when she been showing her disbelief in his denials), 'his protestations of innocence may well have rung hollow in the jury's ears': Brennan CJ, Gaudron and Gummow JJ [11], [13].
In Palmer the majority approved dicta in a number of New South Wales and Queensland cases, including R v E (1996) 39 NSWLR 450, 464 and R v Uhrig (Unreported, NSWCCA, 24 October 1996) 15 ‑ 17. The Palmer principles have been the subject of discussion in numerous cases in this Court: see, for example, Rodd v The Queen [2000] WASCA 329 [27] ‑ [38] and Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [47] ‑ [60]. They were also considered in a number of Queensland cases, including R v T [1999] QCA 376 [13] ‑ [14]. So far as they are germane to the issues raised in this appeal, the principles can be summarised as follows.
1.Cross‑examination is permissible and evidence is admissible to establish that a complainant has a motive to make or persist in false allegations. The reason is that a complainant knows whether she or he has such a motive and a motive to lie is a fact that may be proved to impeach a complainant's credit: Palmer [6] ‑ [7].
2.Cross‑examination of an accused person to show that she or he cannot prove any ground for imputing a motive to lie to the complainant is impermissible. The reason is that an accused's lack of knowledge of a complainant's motive to lie is irrelevant and cannot assist in determining the factual question: Palmer [7].
3.The danger of permitting cross‑examination of an accused to the effect mentioned in the preceding paragraph lies in the following:
(a)it might invite the jury to speculate on irrelevancies and to accept the complainant's evidence unless some positive answer to the question is given by the accused: Palmer [8];
(b)it is unfair to the accused because the answer lies in the mind of the complainant: R v E (464);
(c)the effect of the question could be to reverse the onus of proof because it implies that unless the jury is satisfied the complainant is a liar they should accept his or her evidence: R v E (464); Rodd [29].
4.There is a further danger in permitting questioning of this nature. The relevant issue is a complainant's credibility and a complainant's account gains no credibility from the absence of evidence of motive. If the credibility which a jury would otherwise attribute to a complainant's account is strengthened by an accused's inability to furnish evidence of a motive to lie, the standard of proof is to that extent diminished: Palmer [9]; see also Crisafio [54].
5.This does not mean that the question of motive is one that the prosecution can never traverse. It is legitimate to do so provided steps are taken to avoid the jury gaining an impression of the type mentioned in par 3(c) or par 4: R v T [14].
6.There is no warrant to restrict the Palmer principles to issues of cross‑examination. If it is not appropriate for the prosecution to raise it as an evidentiary matter, then it is equally inappropriate for it to be raised in closing remarks: Rodd [29].
7.Once an issue of this nature has been raised, it is incumbent on the trial judge to warn the jury that:
(a)the prosecution must still satisfy them that the complainant is telling the truth and even if they were to reject the motive to lie put forward by the accused, that does not necessarily mean the witness is telling the truth: Uhrig (16 - 17); and
(b)the accused does not have to prove anything in relation to motive: Uhrig (16 ‑ 17); Rodd [32], [35].

If it be the case, as I think it is, that the Palmer principles apply to comments in closing addresses as well as to questions in cross‑examination, the problem is squarely raised in this case. There was no evidentiary base for the question of motive to have been raised. It was not raised in GH's evidence‑in‑chief and no questions were directed to it in cross‑examination. All that defence counsel put to GH was that the sexual penetration and the attempted sexual penetration had not occurred. She did not suggest that GH had a motive to persist in false allegations. It is readily apparent that the defence case was run on the basis that:
(a)the jury would not have much trouble in arriving at the conclusion that GH had been physically assaulted that night (there was medical and photographic evidence of injuries to his body);
(b)there was a real issue as to whether GH had been sexually assaulted and (possibly) whether items had been stolen from him; and
(c)the appellant was not at GH's unit that evening and, whatever mischief was done to GH, it was not done at the hands of the appellant.
The contention in item (c) is, in essence, the subject of the first ground of appeal and I need say no more about it. Nor do I need to say anything about the matters raised in item (a). The Palmer point goes directly to item (b).
In her closing address defence counsel squarely attacked the complainant's credibility and reliability. She pointed to (among other things):
(a)the inability of GH to identify the appellant as his attacker and the fact that the description which he did give was at odds with the appearance of the appellant;
(b)his inability to identify McNair as the woman who had been at his unit shortly before the attacker arrived;
(c)variances between his version of the extent of his drug dealing from the unit and the version given by others who lived nearby; and
(d)significant inconsistencies between the version of events he gave to police (and others) shortly after the incidents and in formal statements on the one hand, and his evidence at trial on the other. As defence counsel put it to the jury, even on the State's case, GH was 'clearly demonstrably wrong about many things'.
Defence counsel told the jury that GH was 'the only person who can tell you what occurred inside the unit. He is the start and end of counts 2 to 5'. She also submitted that there were matters affecting the reliability of GH's testimony. GH had conceded to being confused in 2007 and at the time of trial. Reliability issues could arise, counsel told the jury, where a witness was trying to be accurate, but in fact just was not accurate because, among other things, memory tended to fade over time.
In a similar context, defence counsel reminded the jury of exchanges in GH's cross‑examination in which he acknowledged being confused because of recurring nightmares. He was asked whether it was sometimes difficult to work out what was a dream and what had occurred. He responded that his nightmares 'are of the actual thing happening. My dreams would be entirely different. … I relive the actions of what's happened to me, yeah'. In her address to the jury defence counsel suggested that the jury would have to consider whether his nightmares had replaced his actual memory and that they ought not to be satisfied beyond reasonable doubt, on GH's evidence, that GH had been orally penetrated or that there had been two attempts to penetrate him anally or that items had been stolen.
These questions were not lost on the trial judge. What follows is a series of passages from the trial judge's summing up to the jury and which are relevant to the issue:
[T]he defence says that only [GH] can give evidence to prove counts 2 to 5 inclusive. Apart from his say so, there is no other proof that he was sexually penetrated or that attempts were made to sexually penetrate him or that there was the alleged stealing. The defence says that you can't rely on [GH's] evidence to prove that these things happened. (ts 515)
…
The defence also says that [GH's] evidence is wrong or contradicted in many respects and that [GH] also readily conceded to you that he is confused about events as they happened on that particular night. He said that he was confused when he saw the doctor, … . He was still confused in December 2007 when he gave a statement to the police and now in January 2009 he is still confused. He told you that he has nightmares and the defence case is that it's difficult to work out what it is that actually happened because, "Is he giving evidence of what actually happened or the evidence of the nightmare?" and that the nightmare might therefore be the basis of his evidence. The nightmares might therefore have replaced his actual memory. (ts 516-517)
…
The State accepts that [McNair and GH] have given evidence in which there are inconsistencies. The State says that these inconsistencies do not matter because you look at the core of what it is that they have said and determine whether the elements of each offence have been proved or not. … The State says it would be most surprising if five and a half years down the track you would get all witnesses all agreeing on everything and, again, that's a matter for you to consider. You can bring your collective experience in determining that. So the State says that its case is not affected by any inconsistencies in the witnesses' evidence but the defence says that the State case is so affected. (ts 520-521)
…
We don't have any independent direct evidence with respect to counts 2 to 5. That relies solely on what [GH] has told you. So it follows, in effect, that the State case relies heavily on what [GH] has told you and that in turn means that you have to assess his reliability and credibility. You need to take into account that these events are said to have occurred now five and a half years ago and the passage of time obviously can affect memory and recollection of events.
The passage of the years between the alleged events and now the trial raises the question that you must consider which is the reliability and accuracy of [GH's] recollection and whether or not you can safely rely and act upon it. That is a specific issue which you must address in considering whether or not you accept his evidence because, as I have explained, the passage of time and the way the matter has unfolded and given that time means that the accused has to a degree lost the means of testing certain aspects of the evidence against him.
Now, if you take those factors into account, you might find that it would be unsafe, but it's a matter for you, to find the accused guilty of the five charges presented against him unless you have carefully scrutinised what [GH] has told you with great care and, having paid due regard to it and applying what I have just told you about it, if you were then satisfied beyond reasonable doubt as to the truth and accuracy of his testimony, you can act upon it. If you are not so satisfied, of course, you must act in an appropriate way and find the accused not guilty. Now, whether you accept or reject [GH's] evidence is a matter for you, but you must be alert to the problems and the difficulties that I have just pointed out. (ts 531)
It can be seen, therefore, that GH's credibility and reliability was a critical issue for the jury to consider. It was a central plank of the defence case as to whether the incidents the subjects of counts 2 to 5 occurred at all. It was obviously apparent to the prosecutor that there may be issues relating to GH's credibility or reliability. Hence the comments to which I have already referred.
This, then, is the context in which the impugned comments fall to be considered. In essence, the prosecutor was conceding to the jury that there were inconsistencies in GH's testimony. He was not good when it came to the history of events, he was not an educated man, he could be vague and he '[could not] be relied on for everything'. Part of the answer which the prosecutor suggested to the jury was that inconsistencies could be understood, through common experience, simply as a consequence of the passing of time. But the prosecutor put forward an alternative thesis; namely, that it was unlikely GH would have made up a story like that. This is the passage from ts 465 that I have set out in par [42]. The other three passages from ts 466 and ts 469 (set out in pars [43] and [44]) are slightly different in that they refer to things that the jury might expect from common experience (having a 'ring of truth') or as being something that would not ordinarily happen ('so strange as to be true'). The essential mischief lies in the passage from ts 465. If the other passages stood alone they would not have had the same impact. However, they follow on, at least in relation to two of the three, immediately after the first and would, in my view, necessarily be coloured by that close proximity. They would also have had a compounding effect on the mischief with which the first passage was imbued.
This is a different case from Palmer. Neither GH nor the appellant were asked questions about a possible motive for the complainant to lie and the prosecutor did not say, expressly, that the appellant had a part to play in resolving that issue. But the difficulty I have with the comment is that it clearly invited speculation: that is the exact phrase the prosecutor used. There was no evidentiary base to which the thesis could be pinned. The jury were invited to ask why, given the lack of dignity in what happened, GH would have made up the story. The comment was made in circumstances where GH's credibility was directly in issue and the comment could have had no other purpose than to bolster GH's credibility. If, as was said in Palmer, at [9], 'a complainant's account gains no legitimate credibility from the absence of evidence of a motive', it is difficult to see the function to be served by a speculative comment concerning the absence of a motive to make up a false story.
I do not want the last comment to be misunderstood. The law is clear: the question of motive is one that can legitimately be canvassed in a trial. But it will usually arise where some evidentiary bases has been set for it, often by a challenge in cross-examination of the complainant. When that happens, the role of the court in protecting the integrity of the trial process by appropriate warnings (referred to in cases such as R v T, Uhrig and Rodd) comes into play. It is hard to imagine that in a situation where the issue arises by way of comment (without a specific evidentiary base) there is no need for a similar warning.
The trial judge gave a general warning to the jury that they must not guess or speculate about matters which are not in evidence and that they must decide the facts only on the evidence. However, the question of motive was not raised at all and he did not relate that general warning to the comment (that included the word 'speculation') made by the prosecutor. His Honour emphasised the critical importance of GH's evidence and the need for the jury to scrutinise it with care. The last of the passages quoted from ts 531 might be described as a particularly strong warning about the reliability of GH's evidence. But it came in the context of the difficulties associated with the passing of time and the effect that this could have on memory and recollection. No specific warning was given, either in that passage or elsewhere in the trial judge's remarks, of the motive issue and the legitimate part that it could play (and not play) in the decision making process.
I accept that there is nothing in this case that would have a compounding effect, such as the complainant manifesting, in the presence of the jury, a rejection of the offender's evidence (as in Palmer) or the trial judge giving an inaccurate description of the impugned material (as in Rodd). Nonetheless, given the inconsistencies and other matters that the State conceded could lead to the conclusion that GH 'could not be relied on for everything', I think there is a real danger that the jury may have been influenced significantly by the speculative thesis concerning lack of motive. This being so, a specific direction was called for. As it was not given, it is not possible to say that no miscarriage of justice has occurred.
Counsel appearing for the State on the appeal conceded that it would have been preferable for prosecuting counsel not to make the comments complained of by the appellant. Nonetheless, he submitted, in the circumstances of this case there was no reasonable probability the jury was significantly influenced by the comment about motive. It will be apparent that I think the concession was properly made but I do not accept the rider placed on it. Great care must be taken by counsel appearing at trial to avoid problems of this nature while at the same time pursuing legitimate areas of the forensic task. Similarly, vigilance is required by trial judges to protect the integrity of the trial process.
In my view ground 2 has been made out. It is therefore unnecessary to consider ground 3.

Conclusion

The Palmer principles go to some of the fundamental tenets that underpin the criminal justice system, namely, the onus of proof and the standard of proof. In this case they do so in an area that was central to the issues that had been joined between the prosecution and the defence. In the circumstances of this case there has been a miscarriage of justice and there is no room for the application of the proviso in s 34(2a) of the Criminal Appeals Act 2004 (WA). But in my view there was evidence on which a jury, properly directed, could have returned verdicts of guilty on each of the counts of which the appellant was convicted and there should be a re‑trial.

I would grant leave to appeal on ground 2, allow the appeal and order a re‑trial. I would refuse leave to appeal on ground 1. There is no need to deal with ground 3.
WHEELER JA: I agree with McLure P.