Palmer v the Queen

Case [1998] HCA 2

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

COLIN VAUGHAN PALMER  APPELLANT

AND

THE QUEEN  RESPONDENT

Palmer v The Queen (M41-1997) [1998] HCA 2
Date of Order:  2 December 1997
Reasons for Judgment Delivered:  20 January 1998

ORDER

  1. Appeal allowed.

  1. Set aside the order of the Court of Appeal and in lieu thereof grant leave to appeal to that Court, allow the appeal and quash the appellant's convictions and enter verdicts of acquittal in their place.

On appeal from the Court of Appeal of the Supreme Court of Victoria

Representation:

R K Kent QC with M R Simon for the appellant (instructed by Jonathan
Kemp & Associates)

W H Morgan-Payler QC with G J C Silbert for the respondent (instructed by
P Wood, Solicitor to the Director of Public Prosecutions)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Palmer v The Queen

Criminal law – Sexual offences – Cross-examination of accused as to whether complainant had motive to lie – Relevance – Inviting jury to speculate – Risk of reversal of onus of proof – Whether judge's directions capable of neutralising prejudicial effect of cross-examination.

Criminal law – Sexual offences – Unsafe and unsatisfactory verdict – Alibi.

  1. BRENNAN CJ, GAUDRON AND GUMMOW JJ.   In June 1994 the complainant, whom we shall call "L", was aged 14.  At that time, she was recuperating at home in Camberwell, a Melbourne suburb, after an operation.  She lived with her mother who was in daytime employment, so L was left at home during the day.  The appellant, aged 34, was a process server who had met and become friendly with the mother two years before.  His duties as a process server took him to various suburbs of Melbourne.  He made an offer to L's mother that he would pick up L at home and take her out for a drive.  L's mother agreed to that suggestion.

  2. On Wednesday 22 June 1994, the appellant called at the home and took L with him into town.  He took her to lunch at a restaurant which he frequented close to his office.  Later in the day he took her home.  The following day, Thursday 23 June, he called at the home again and spent some time there.  On Tuesday 28 June he again called and took L with him on his rounds.  He did the same on Thursday 30 June and on Friday 1 July.  On that afternoon she went with him to his house and assisted with some office work for which he paid her $20.  L gave evidence that on these occasions the appellant had engaged in sexually suggestive conversation or conduct.  The appellant's evidence denied that he had done so.

  3. There is a conflict of evidence as to what happened on Monday 4 July.  L alleged that the appellant called for her and took her with him on his rounds until about 6.00pm that evening…

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AGLC
Palmer v the Queen [1998] HCA 2
Case
[1998] HCA 2
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the appellant, Palmer, against his convictions for various sexual offences against a child. The charges related to alleged acts committed on 4 July 1994. The appellant had pleaded not guilty to all counts.

The legal issues before the High Court concerned the admissibility of cross-examination of the appellant regarding the complainant's potential motives for fabricating the allegations, and whether the appellant's convictions were unsafe and unsatisfactory due to the strength of his alibi evidence.

The Court determined that cross-examination of an accused person concerning the complainant's motivation for making a false accusation is generally impermissible unless initiated by the accused. This is because such questioning can invite speculation by the jury, potentially shift the burden of proof to the accused, and place the accused in a weak position to prove the complainant's motives. The Court upheld this prohibition, finding that it serves to maintain the focus of the trial on the core issues and prevent prejudicial speculation. However, the Court also found that the appellant's convictions were unsafe and unsatisfactory. The strength of the alibi evidence presented by the appellant, supported by bank records and witness testimony, was such that the jury could not have been satisfied beyond a reasonable doubt that the offences occurred on the date central to the Crown's case.

Consequently, the High Court allowed the appeal, quashed the appellant's convictions, and entered verdicts of acquittal.

Orders

Orders of the court

1.

Appeal allowed.

2.

Set aside the order of the Court of Appeal and in lieu thereof grant leave to appeal to that Court, allow the appeal and quash the appellant's convictions and enter verdicts of acquittal in their place.

Background

Background to the litigation

In my opinion, the questioning of an accused person as to his or her knowledge of facts that could throw light on the complainant's motivation for fabricating a charge of sexual assault is relevant in determining whether the accused is guilty of the charge. Cross‑examination of the appellant as to whether there was anything in his behaviour that would account for the complaints against him was therefore admissible. His first contention fails. However, on the whole of the evidence, the appellant's convictions are unsafe and unsatisfactory. The strength of the appellant's alibi was so great that it was not open to the jury to be convinced beyond a reasonable doubt that he committed the alleged offences on the date put forward by the Crown, a date that was central to the Crown case. The appellant's second contention therefore succeeds with the result that his conviction must be quashed and acquittals entered in respect of all charges.The factual and procedural background The appellant was presented for trial before the Melbourne County Court charged with seven counts of committing an indecent act with a child under the age of 16, two counts of rape and two counts of taking part in an act of sexual penetration with a child aged between 10 and 16. The offences were alleged to have been committed against the complainant on 4 July 1994. On that date the appellant was aged 34 and the complainant was a female, aged 14. The appellant pleaded not guilty to all counts. The appellant, who worked as a process server, was a friend of the complainant's mother and had agreed to spend time with the complainant while she was recuperating from an operation and her mother was at work. After the complainant was released from hospital in June 1994, the appellant visited her on six occasions. On the first of these occasions, he took her with him while he served some documents. Later that day he took her to lunch at a Chinese restaurant. On four of the following five occasions, he also took her with him while he served documents. The complainant assisted the appellant with the photocopying and stamping of summonses. On each of their outings, the appellant made suggestive comments and gestures. On a visit which took place on 23 June, the appellant told her that if she were 21, "I'd have you". He took her by the shoulders, pulled her down to his chest, and kissed her on the cheek. On Monday 4 July, the appellant arrived at the complainant's house around noon. The complainant said that she was sure about the date because "American Independence Day helps me to remember". She left the house with the appellant to help him deliver some summonses. At about 1.30pm, the appellant took her to her mother's place of work in the Melbourne suburb of Richmond where the complainant handed her mother a piece of chocolate cake. The complainant then accompanied the appellant to a number of suburbs around Melbourne while he delivered summonses. At around 5.30pm, the appellant said that he was tired and that he usually had a sleep at this time of day. He stopped the car in a laneway beside a church at 6.00pm; the complainant was able to identify the time because of a radio announcement. The appellant slept until 6.30 or 6.40pm. When he awoke he took her right hand, sucked her fingers and rubbed her arm and left breast through her clothes. The rubbing was rough and "hurt a lot". The complainant responded by bending down, putting her backpack on top of her lap and pushing herself into the corner of the car seat.

Evidence

Evidence Before The Court

The appellant also produced bank records which indicated that he had used an Eftpos card to purchase petrol from a service station in the Melbourne suburb of Thornbury at 5.10pm on 4 July. Witnesses called on the appellant's behalf verified the bank records and gave evidence relating to the nature of his work and the swearing of affidavits.The evidence and directions on the complainant's motivations for fabrication During cross-examination, counsel for the appellant put to the complainant that she had told a friend that she had a crush on the appellant. Later, the following exchange took place between the appellant's counsel and the complainant:"Q: This is some sort of pay back on [the appellant] for some indiscretion he doesn't even know about, isn't that right?A: No, I am not lying." When the appellant was being cross-examined, he was reminded of the above exchange. He was asked:"Q: So far as you are concerned there is absolutely nothing about your behaviour towards [the complainant] in the past prior to the 4th July, or at all, that would account for her making such an allegation against you?A: I have, as I said before, under question from [the appellant's counsel], in reference to this - no, I have done nothing.Q: So even with the benefit of hindsight, or as in the time that has elapsed from the time you were questioned by police - which is about August of 1994 - until now, you are still at a loss?A: Yes." The issue was raised again towards the end of the appellant's cross‑examination:"Q: At this stage, as you sit there today, you can't think of any reason, or anything you have done to her - ?A: No, I haven't.Q: As to why she would make this up?A: I am saying that to you, that is correct." No objection was made by the appellant's counsel to this cross-examination. In charging the jury, the trial judge gave directions which included the following:"It comes down in this case to a question of veracity, or truthfulness. It seems to me the ultimate question is 'Are you satisfied on the basis of all the evidence that you have heard that [the complainant] was truthful?'. Of course, you must ask yourselves whether she was accurate, but the gist of the dispute is not as to her accuracy so far as describing the events that she said happened to her, but as to whether she is telling the truth when she says they happened to her at the hands of the accused man.It is axiomatic that human beings tell lies ... ...That people tell lies is notorious and manifest, and that people tell lies at times without any discernible motive for them to do so, is also a matter of commonplace knowledge. ...Now people do tell lies of that sort. I am not saying anything, let me reiterate, about this particular complainant ... but I simply draw your attention to the fact that it is known that people tell lies, and tell lies without any dishonourable motive. It may, of course, come from their psychological state; some sort of neurosis. Sometimes, teenagers tell lies about their parents and to their parents, perhaps based on a feeling of antipathy because of perceived neglect or disregard, or for all sorts of reasons. And it is incumbent on you to bear that simple truth in mind in assessing the evidence....Of course, a person may give an account of events that is detailed and ostensibly very plausible. They may be describing a true incident, but for some reason, they may simply attribute that incident to the wrong person ... So there are all those things, and I am simply putting those as general considerations to bear in mind for the sake of being careful about the verdict that it is your responsibility to return....... Of course for the accused's part this is nothing more than the development of an invention that comes about for some reason not discernible, whether as a result of neurosis or whatever it might be on the part of this young child....... The philosophy behind the criminal law, it is sometimes said, is that it is weighted in favour of accused persons for the sake of freedom of the individual in the community. It is a safeguard from being falsely convicted, and therefore it is better that nine guilty men escape than one innocent man should be convicted. It is obviously an appalling prospect that a man should find himself simply named by some person who is perhaps neurotic or psychologically ill or for some reason substituted him for somebody else, and made him the person who performed a series of acts that did occur but which he did not take part in and that he says he did not take part in and had nothing to do with it. Nobody said he had anything to do with it, until 18 August."

Decision

Reasons for decision

BRENNAN CJ, GAUDRON AND GUMMOW JJ CJ, GAUDRON AND GUMMOW JJ (dissent) HUGH J
The foregoing arguments have force. But so do the arguments which reject any loosening of the general prohibition on initiating questions of an accused as to the possible motivation of the complainant to make false accusations:1. No witness can give factual evidence about the motives of another person. Even evidence about a past dispute or suspected reason for a false accusation will not prove the motivation of the accuser. Such motivation may be unknown to the accused. It may even, possibly, be unknown to the accuser. To open the issue will necessarily invite intense speculation by the jury which it is difficult, or impossible, to settle by evidence[93]. If this line of questioning were permitted and the accused were to say that he or she did not know the motives of the accuser, such evidence might tend to help the prosecution. The accused would be driven to conceding that he or she cannot point to, and demonstrate, an improper motive. The diversion could seriously damage the accused in a matter in which ignorance or mystification might be completely justifiable. 2. By initiating questions as to the accused's knowledge of the motivations of the accuser, the risk may be run of effectively shifting the burden of proof at the trial to the accused, such that he or she was virtually obliged to demonstrate the falsehood and improper motives of the complainant[94]. General instructions about the onus of proof may then become swamped by overt speculation which it is impossible to satisfy. If the accused elects to make an issue of that question, by affirmatively suggesting a motive or reason for such falsehood, that may open the door to having the allegation tested. But in the absence of such affirmative suggestion, permitting such questioning and inviting judicial comment about it, may simply intensify, but not satisfy, the question which "hangs over" a jury trial of this kind.3. In most parts of Australia the facility of an unsworn statement by the accused has now been abolished. Ordinarily, therefore, the accused will give evidence in cases of this kind. To permit the opening up of questions about an accuser's possible motives effectively requires the accused to become an advocate, but from a position of weakness in the witness box and on a subject about which the accused may have suspicions but no sure means of knowledge. The fact that the accused cannot affirmatively establish, or even possibly nominate, a reason why the accuser should make such a false accusation adds nothing logically to the credibility of the accusation. Yet permitting the line of questioning might give legitimacy to the reasoning that the accusation must be correct because no motive to lie can be demonstrated[95]. The balance of the trial might then be endangered. That danger explains the strict limitations which have been imposed, both on prosecutors and judges, both in Australia[96] and overseas[97].4. Taking the stance that questioning relevant to an accuser's motives is not permissible, unless initiated by the accused, does not (so it was argued) evidence a want of faith in the commonsense of the jury, or a mistrust of the jury's capacity to resolve the question in a principled way, with the assistance of firm judicial directions. Instead, it represents the adoption of a simple rule which is relatively easy to apply. It is a rule which gives clear instruction to the prosecutor and the judge. It discourages needless appeals. It keeps the focus of the trial on the correct question and away from potentially prejudicial speculation. Although it is true that the issue can arise in the context of non-sexual offences, it presents itself in its most acute form where the accusation charges sexual misconduct. It is of the nature of such matters that caution is still required to prevent the risk of false accusation leading to wrongful conviction. Although there are dangers in a rule of silence, there are greater dangers to the fair trial of the accused in permitting the complainant's motivation to be opened up where the accused has refrained from doing so.[93] R v E (1996) 39 NSWLR 450 at 464.[94] R v Leighton (1994) 155 NBR (2d) 211 at [9].[95] cf R v E (1996) 39 NSWLR 450 at 464.[96] See for example R v E (1996) 39 NSWLR 450; R v Uhrig unreported, Court of Criminal Appeal of New South Wales, 24 October 1996; R v G [1994] 1 Qd R 540.[97] See for example R v Vandenberghe (1995) 96 CCC (3d) 371 at 373; R v AF (1996) 93 OAC 102.Conclusion: the prohibition should be maintained

Ratio Decidendi

Legal Principle Established

Established by: BRENNAN CJ, GAUDRON AND GUMMOW JJ, HUGH J

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