Palmer vThe Queen

[1997] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M69 of 1996

B e t w e e n -

COLIN VAUGHAN PALMER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 6 JUNE 1997, AT 12.44 PM

Copyright in the High Court of Australia

MR R.K. KENT, QC:   If the Court pleases, I appear with my learned friend, MR M.R. SIMON, on behalf of the applicant.  (instructed by Jonathan Kemp & Associates)

MR W.H. MORGAN-PAYLER, QC:   If it please the Court, I appear with my learned friend, MR G.J.C. SILBERT, on behalf of the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Vic))

BRENNAN CJ:   Yes, Mr Kent.

MR KENT:   If the Court pleases, this matter raises a matter of general importance, in our submission, dealing firstly with the draft grounds 1 and 2 of the grounds of appeal that relate to the question of the propriety of the cross-examination of an accused in the course of evidence in a trial, as to whether or not the accused person is able to identify any motive for a false allegation being made against the accused.

BRENNAN CJ:   That was not the question which the Court of Criminal Appeal posed for itself, was it?  Its proposition was whatever the position might be in general, what is the situation when the question of motive has been raised in cross-examination of the prosecutrix.

MR KENT:   Yes.  It is our submission that the question as we have framed it arises because the court was in error in saying that it was raised in cross-examination itself.  It must be looked at as to what questions were asked and what was in fact put by counsel on behalf of the applicant to determine whether or not that was correct, and that the court ought to have, in our submission, determined the question as to the propriety of the questioning as a general basis.  The matter arose ‑ ‑ ‑

KIRBY J:   But this is critical because the principle is pretty well established in other jurisdictions, that you cannot out of the blue ask questions about motive because it was just speculating to bring that out.  But I think you have really got to go to the heart of the Chief Justice’s question.

MR KENT:   Yes, well we do not disagree with that, with respect to the Court.  It must be looked at as to how the court, we submit, went into error in respect of this and there are just some brief points of the evidence that need to be looked at and, in our submission, it begins at page 94 of the application book in the course of the cross-examination of the complainant in this matter.  She was being asked about general matters, matters prior to the actual events of 4 July and questioned about whether or not his behaviour amounted to, in her mind, a propositioning of her.  It was put to her that what she was saying about that was nonsense.  She said, “No.”

Didn’t enter your mind because it hadn’t happened?---Yes, it had.  Why would I be lying anyway?

Now, the first question of motive to lie was raised non responsively, in our submission, by the complainant herself at that point.  Now, what had happened therefore was that in the course of cross-examination not directed to putting a particular motive to the complainant, a non responsive question of the nature of the rhetorical question complained of ultimately with respect to cross-examination was raised by the complainant herself in the course of her evidence.

Then it is necessary to go to what it was that was in fact put by the counsel with respect to the question of motive, which was said to be relied upon by the Court of Appeal as the matter being raised by counsel for the applicant.  Now, we submit it must be viewed in the context of that earlier non responsive answer.  Then what was put was this ‑ ‑ ‑

DAWSON J:   Where is this?

MR KENT:   This is at page 114 of the application book.  She was being asked questions about whether or not there was anything to stop her reporting it to the police, whether she could tell her mother, on that line 17 at the moment, and a question about what she had said to a witness called Megan - her name just escapes me at the moment.  She had been cross-examined generally about discussions that she had with her friend, Megan, in which she had put a thoroughly different complexion upon the events.  And in the context of what she had told Megan, she had told Megan that she had a crush on Vaughan Palmer.  Megan Hutchinson was the witness’ name and it appears in the cross-examination what was put to her about what she had said.  Then she was asked this:

Or your mother?---I couldn’t even tell my Mum.  I couldn’t tell Megan, that is why I made up that story about it.

Why tell anyone?---Because you have to tell someone.

All this bloke had done is take you out and for some reason you have taken a fancy to him, isn’t that right?---No, he took me back to his place.

Now the “you have taken a fancy to him” is based upon the earlier questioning about her having said to her friend that she had a crush on him, and she conceded ultimately that she had said that previously or, alternatively, that she had said she found him cute.  So that questioning is based upon material that arises from her own evidence and the evidence of another witness.  Then counsel said:

This is some sort of pay back on him for some indiscretion he doesn’t even know about, isn’t that right?---No, I am not lying.

Now, in the context of the matters that had been put to her, that is not counsel raising a specific reason for telling untruths that is within the knowledge of the accused person.  It is disavowing that there was such a reason and, in the context of her having said about telling other people about not telling other people, it is simply put to her there is not a reason known to this person.

KIRBY J:   It does go beyond that, Mr Kent.  It goes beyond it and says it was “a pay back on him for some indiscretion he doesn’t even know about”.

MR KENT:   He doesn’t even know about, but it is the “he doesn’t even know about” that is important.

KIRBY J:   But it is suggesting a motive of some kind.

MR KENT:   It is suggesting - not a motive, it is suggesting that there is a motive but not what it is.

KIRBY J:   It is pretty hard on counsel to rest this whole application on one question, but the question does suggest that there is some explanation that he may not know fully of some indiscretion.  Now, what does that mean?

MR KENT:   I do not know, your Honour, but what it is is that it is something that counsel has chosen to use in that setting and one cannot say that this is a considered response based upon a specific instruction.  One could understand that it could be properly argued that this question was raised if counsel in fact put as a motive a specific matter that was within the knowledge of the accused, or alleged to be, and then the accused could be cross-examined as to whether or not that was true.  But when counsel is confronted with a situation where the complainant herself has, at an earlier stage, posed the question, “Why would I be lying?”, he is then dealing with, in a general sense, the question of why she did not make complaint to people and then is putting to her, “Well, there must be a reason there somewhere”.  If one assumed that it is false, then there must be a reason.  So that it is not raising the question.  The question exists in any event.  Once it is put that the story is false, the question is raised, well, if it is a false story, there must be a reason for it, whether it is specifically put or not.  Clearly, it was put in the course of cross-examination that both the allegations of preliminary conduct and the allegations of the offences themselves were denied.  It was plainly put that there was a blanket denial of the allegations of improper behaviour across the board.

KIRBY J:   You have to put it that this is not really opening up a motive, that that is signalled by two things:  first, that the cross-examiner says he does not even know about it and, second, he does not go on to open it up in any way.

MR KENT:   No, he does not.

KIRBY J:   And that that was enough to allow the asking of questions which diverted attention to the complainant’s motivation.

MR KENT:   Yes, and carried with it the vices that are mentioned in R v E, the New South Wales case that is referred to.  I will not go into the detail because those matters are obvious as to apparent reversal of onus of proof.  The very important feature in a case of this nature, of course, is that one is really determining the credibility of witnesses whilst they are then and there before the jury.  If this sort of questioning is asked of an accused and he says, “Well, I can’t give you that answer”, the opinion as to credibility may be made effectively then and there at the moment that the questioning takes place.  And that is the real vice of it. 

BRENNAN CJ:   We will continue this argument perhaps at 2.15 pm.

MR KENT:   If the Court pleases.

AT 12.55 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

BRENNAN CJ:   Yes, Mr Kent.

MR KENT:   If the Court pleases, I had dealt with the actual question that was asked by counsel for the applicant of the complainant in the matter and put what we submit is the setting in which the question was asked and submit that that does not mean that that meant the topic was therefore open for cross-examination of the applicant about whether he knew of any reason as to why there might be an invention.  For the topic to be opened by a question or the conduct of the case to be opened for the purpose of cross-examination, it would have to be done in such a way that there was a legitimate reason for the cross-examination.  It is our submission that a legitimate reason for cross-examining somebody about a topic which is raised might be to reinforce or establish further evidence supporting the cross-examining party’s case.  Alternatively, the cross-examination might be for the purpose of challenging the factual proposition that is advanced by the other party.

Now, if I take the latter of those first, the second one first, it is not that there was a legitimate purpose in cross-examining the applicant to show that he was not telling the truth, if he was making an assertion that he did not know of a reason why she might lie.  It is not the Crown case to say that he has fabricated his lack of knowledge of a reason for her giving an untruth.  Now, if one then goes to the other purpose that might be available for cross-examination upon a topic, how could it be said in this situation that it is legitimate to cross-examine on this topic for the purpose of reinforcing the prosecution case.  It does not reinforce the prosecution case to establish, repeat or to further develop the fact that the applicant or an accused person, as he is in that position, does not know of a reason why there might be a fabrication of evidence.  That would be an illegitimate purpose because the fact that the accused person does not know of a reason does not mean there is not a reason. 

Then it flows from that that it is a rhetorical question in the sense that is set out by the Court of Appeal of New South Wales in R v E, that it then follows that this tends to change the focus and the emphasis of the issue in the trial.  It tends to reverse the onus of proof and so on.  So it is my submission that the matter was not raised as a matter proper for cross-examination by the question that was asked by the applicant’s counsel in the case.  So the topic generally was not open at all.

If one goes from there to the cross-examination of the accused, and the actual questions that were asked of him, they are of course of relevance, but of great significance is the placing of the questions in the overall cross-examination of the accused on the question of whether or not this interfered with the fair conduct and course of the trial.  It is our submission that it did because the cross-examination on this topic was right at the beginning of the cross-examination and then again at the end, so it made a very significant feature of the inability of the accused to provide any motive that he understood for the purpose of fabrication.  That is to be seen from the questioning at page 148 where, following on the conclusion of the evidence in‑chief of the accused, there was discussion in the court.  It is relevant, in my submission, to what transpires in the pages after the conclusion of the evidence in‑chief to see that there was an incident in the court room that involved the conduct of the complainant who was in the court room and a suggestion about her mother being involved in something, and then the moment that the accused is cross-examined he is asked this:

Mr Palmer, as I understand it, from the questions that were put to Laura yesterday, you would really, it seem be, at an absolute loss to think as to why she should make up the allegations?---You are asking me what ‑ ‑ ‑

Yes?---I have no idea why she has said what she has.

You would have heard Mr Montgomery mention to her yesterday -

and so it goes on:

So far as you are concerned there is absolutely nothing about your behaviour towards Laura.....that would account for her making such an allegation against you?---I have, as I said before, under question from Mr Montgomery, in reference to this - no, I - have done nothing.

Now, it may be that one, from reading that answer, is of the view that Mr Montgomery asked specifically the applicant in evidence in‑chief as to whether he could offer any reason.  Well, it is my submission he did not.  He was not asked that, and what the applicant is saying there is “I have told him I did nothing with respect to the allegations against me”.  Then the next question is:

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?

Then the matter was taken up again at page 213, line 16:

I suggest what Laura said you did and said to her over the days leading up to and on the 4th of July is exactly how it happened?---I am telling you it is not.

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.

KIRBY J:   Neither at 149 or 213 was there an objection raised to this questioning.

MR KENT:   There was no objection raised, your Honour, no.  Your Honour, as to the absence of objection, it can only be put this way.  Counsel was not at that time aware that it was appropriate to make the objection and did not do so.  We would submit that there is no tactical advantage that can be seen for counsel making a considered decision not to object to it, but it can only be viewed in the circumstances of this case that counsel was not aware that this was a matter that should be objected to and was not permissible.  We would submit, therefore, that the failure to object is not fatal in the circumstances of this case and, indeed, this topic is a matter of general importance and the fact that counsel was not aware of that at that moment should not prevent special leave being granted so this very important topic can be dealt with. 

I think, as my time has almost expired, I probably should just move but very briefly to what comprises the next ground.  Grounds 1 and 2 really relate to this topic ‑ ‑ ‑

KIRBY J:   If there is a special leave point in this case it is what you argue now.  The other grounds are not really special leave points.

MR KENT:   Except for this, if I can just say this, in the outlines of submissions we have put that Mr Justice Hayne used a basis for supporting the verdict the fact that these events might have happened on a different day.  That was not run at the trial.  Also in the judgment of Mr Justice Southwell, he uses that as a basis for the refusal of ‑ ‑ ‑

KIRBY J:   That the complainant might have been mistaken as to the day.

MR KENT:   Yes, that is right.  But the point about that is that is then saying that even if the jury found that the alibi evidence was correct, they could still convict on the basis that these things did not happen on 4 July.  We would submit that is not a legitimate line of reasoning for a Court of Appeal in reviewing the question of whether a conviction is unsafe and unsatisfactory when that ground is not run at the trial - when that other basis was not left open to the jury, as it were, and we would submit the trial was

at all times conducted on the basis that the day in issue was 4 July.  The applicant was entitled to run his case on that basis and, therefore, it is not a satisfactory way of dealing with the question of an unsafe and unsatisfactory verdict, to think of another way that was not left open to the jury, in effect.  But those are the submission, if the Court pleases.

BRENNAN CJ:   Thank you, Mr Kent.  Mr Morgan-Payler.

MR MORGAN-PAYLER:   If the Court pleases.  In the respondent’s submission in respect of grounds 1 and 2 there are three reasons why special leave ought not be granted.  Firstly and simply, this question at this trial was a question that was litigated by the parties and the respondent asserts it is a matter that was first raised on behalf of the applicant in cross-examination of the complainant, quite legitimately so.  Thereafter it was quite legitimate for the prosecutor to continue with that question in cross-examination ‑ ‑ ‑

KIRBY J:   Mr Kent says it was not.  It was raised first by the complainant who said, “Why would I be lying anyway?”, which raises the issue.

MR MORGAN-PAYLER:   And it had become an issue, your Honour, and in our submission, it is not a forbidden topic. 

KIRBY J:   Yes, but it is a rather dangerous topic, because how will an accused know what a complainant has got in his or her mind and though, as Chief Justice Gleeson said in E, it is a question that hovers over a criminal trial, there are dangers in opening it up.

MR MORGAN-PAYLER:   Yes, an accused, your Honour, might or might not be able to advance a reason.  Often an accused might be in a position to advance reason, that there had been some unpleasantness or bad feeling between himself and the complainant.  The New South Wales cases of E and F, which is referred to in E, in our submission the vice in each of those cases was not the fact that this question was raised but, on each occasion, the vice was that the trial judge elevated that question to “the central issue in the trial”.  Clearly to do so runs a grave danger of possibly reversing the onus.  In E at page 466:

The issue as to why the girl would lie was brought forward to a position of prominence in the present case;

KIRBY J:   Have there been cases in other States of Australia along the lines of E and F?

MR MORGAN-PAYLER:   Not that I am aware of, your Honour.  The question has been touched on from time to time in this State.  I might add the respondent’s outline in this case was delivered to the Court without having had the benefit of the applicant’s outline so some matters might not be fully explored therein.  There is a case of Robinson (1996) 1 VR 402, the court consisting of the Chief Justice and Justices Southwell and Vincent, where the matter was touched on in obiter by the Court of Appeal in Victoria. At page 409 at line 44 the court said:

We would add that while an accused person is not called upon to establish some motive for a complainant to make allegations of sexual assault, the fact that no sensible or acceptable motive could be put forward by the defence is not without significance.

BRENNAN CJ:   What is the significance?

MR MORGAN-PAYLER:   The significance, in our submission, your Honour, is the fact that it is negative evidence.  A jury can place some weight on the fact that one of the persons who might be able to provide a motive for untruthful evidence is unable to do so.  Likewise, it would be permissible to explore with other witnesses close to a complainant or close to the facts in issue whether or not they are able to shed light on the issue.

KIRBY J:   But one problem with Robinson is that it seems to countenance opening up the whole thing, and that runs into the contrary doctrine in New South Wales which seems to me to have a lot of sense, that otherwise you shift the onus to the accused, and the accused cannot say what is in the mind of the complainant.  Assuming the accused to be innocent, which is what we normally do, the accused will not know what was going on in the mind of the complainant.

MR MORGAN-PAYLER:   Exactly, your Honour, but that is not the question that is put to the accused in this case.  It is, “Can you advance a reason?”  The answer is, “No.”  It is probative material, although not of overwhelming importance.  The vice which this trial judge in this case carefully avoided is to raise that question to undue prominence, to describe it to the jury as the central question in the case, which was exactly what happened in E  and also, as I understand it, the earlier case dealt with by the New South Wales Court of Appeal, namely F.

BRENNAN CJ:   I can understand you saying, in the light of Robinson’s Case, that it is probative, but I do not understand what issue it tends to prove.

MR MORGAN-PAYLER:   A slight issue, your Honour, namely the absence of evidence.  Sometimes the absence of evidence is a probative fact, a negative fact that a jury might  ‑ ‑ ‑

BRENNAN CJ:   Probative of what?

MR MORGAN-PAYLER:   Probative of the fact that no sensible or apparently logical reason can be advanced, in this case, for untruthful evidence to have been given to the jury.

KIRBY J:   It sounds probative of the innocence of the accused, the burden of which falls on him.

MR MORGAN-PAYLER:   No, your Honour.  Simply because the question is addressed to an accused, as long as one does not fall into the vice of raising it to the all important issue in the trial, accuseds are asked all sorts of ‑ ‑ ‑

BRENNAN CJ:   If it is probative, there is no reason why it cannot be.  No reason why it cannot be elevated to the central question, if it is probative.

MR MORGAN-PAYLER:   It could be on one view, your Honour.  It seems the Court of Appeal in New South Wales has been of the view, and we do not necessarily take issue with that view, that to do so might run the danger of the jury inadvertently reversing the onus.

KIRBY J:   Is there not a tension between Robinson and E and F

MR MORGAN-PAYLER:   No, in our submission, no, your Honour , because certainly - I think it was in F ‑ ‑ ‑

KIRBY J:   One says it is probative, the other says you have got to be very careful of this.

MR MORGAN-PAYLER:   Certainly in F it would appear that the question was litigated between the parties and, in the judgment of F at page 511 at the very bottom of the page:

Put shortly, the “central theme” of the case, according to the trial judge, could be found in the question, “Why would the complainant lie”?  That is a question, often left unspoken, which usually hovers over cases of this nature.  Sometimes, as in the present case, it is specifically addressed by counsel in evidence and in argument.  It is apparent from what is set out above that the observations of the trial judge were prompted by arguments put in final address, apparently by counsel on both sides.  Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never “the central theme” of a criminal trial.

That, in our submission, is the gist of the New South Wales line of authority.  No issue is taken with that.  However, it is certainly asserted on behalf of the respondent that there is certainly no inconsistency between those decisions and decisions of the Victorian court in that they each contemplate, in appropriate circumstances, this issue being litigated, as it was in this case.  Litigated, the respondent says, without objection which, again, is the third reason why on those grounds special leave ought not be granted on that question.

So the respondent simply says, firstly, it was raised, albeit the topic might have in some way crept in by a non responsive or not directly responsive answer in cross-examination from the complainant.  However, then the applicant sought to cross-examine on it, sought to attribute a motive and one can see from the conversation that was put, the previous conversation that was put to the complainant, the passage of cross-examination our learned friend referred to, there was a rational basis for attacking the complainant, namely it appears that the complainant had said to a friend that she had some attraction for the applicant.  Now, whether the complainant said that was in fact true or untrue matters not.  It provided the springborad for an attack and built on that then was the motive that was put to her in cross-examination.  The question having been opened, the respondent says, it was quite proper for the Crown to do as it did without objection.  So, first point, if there be a question, this case is not the appropriate vehicle. 

Secondly, it is submitted when one looks carefully at E and F and at the judgment of the Court of Appeal in this matter and, indeed, the other matter of Robinson in Victoria, it is submitted in fact there is no tension between the two State courts.  Thirdly and finally, I have covered the point that, in any event, in this case at trial objection was not taken.  I think in very brief compass, on the first two grounds, those are the arguments of the respondent.

BRENNAN CJ:   What do you say about the additional point of the alibi and the way in which that was treated in the Court of Criminal Appeal?

MR MORGAN-PAYLER:   In my submission, your Honour, the primary finding of the Court of Criminal Appeal was that they had examined the evidence and the court did not find that the findings of the jury were unsafe

and unsatisfactory.  It was open in this case - this was a witness against witness case - for the jury to have rejected the evidence of the applicant.  It is probably misleading to refer to the material as alibi material.  It is really self-serving documentary material brought into existence by the applicant.  Be that as it may ‑ ‑ ‑

KIRBY J:   But the complaint is that Justices Hayne and Southwell said, “Well, maybe the complainant was wrong as to the date.”, but that was not the way the case was presented by the Crown.

MR MORGAN-PAYLER:   It was certainly the evidence that was before the jury, though, your Honour, and that the mother of the complainant said, “Well, I think it was 4 July.  Whatever day it was, however, it was the day my daughter brought a cake to me at work.”  The complainant was, I think, a little stronger on her date, but she also fixed the date of the actual commission of the offences as being the same day as the day she delivered the cake to her mother at work.  Now, it may very well be - we do not have the addresses, and his Honour did not summarise the arguments to the jury in this case.  One does not know whether the Crown went to the jury on the basis, “Well, don’t worry about the date; it was the cake that is the central issue”, but really, the Court of Appeal performed their function in independently examining the evidence. 

The Court of Appeal found that the verdict of the jury was tenable and, in those circumstances, either this Court is being asked to reagitate factual questions or no real issue arises.  This is different to the case of Knight which is referred to in our learned friend’s list of authorities.  Knight, of course, was a case where there were proven facts and the question was whether certain inferences were open.  In this case, there is a situation really of oath against oath and, indeed, his Honour pointed to the jury there was other evidence to support the complainant.  It was quite open to the jury to accept or reject part or all of some or other of the witnesses.  That is, in effect, what the Court of Appeal did. 

In those circumstances, again in respect of the final ground, there simply is not a special leave point that has been raised before this Court.  If it please the Court, those are the submissions of the respondent.

BRENNAN CJ:   We need not trouble you in reply, Mr Kent.  Special leave will be granted in this case.

MR KENT:   If the Court pleases.

AT 2.41 PM THE MATTER WAS CONCLUDED