R v Bajic
[2005] VSCA 158
•22 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 304 of 2004
| THE QUEEN |
| v. |
| MIROSLAV BAJIC |
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JUDGES: | CHARLES and EAMES, JJ.A. and BYRNE, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 May 2005 | |
DATE OF JUDGMENT: | 22 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 158 | |
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CRIMINAL LAW – Sexual offences - Cross examination of accused as to motive of complainant to lie - “Why would she lie?” – Invitation to accused to comment on truthfulness of complainant – “Is she lying?” – Whether such questions permissible – Incorrect categorisation of defence case, by prosecutor, as alleging complainant telling lies - Jury charge – Failure of judge to summarise evidence – Whether verdict unsafe and unsatisfactory – Whether verdicts of acquittal inconsistent with verdicts of guilty – Whether re-trial should be ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Trapnell | Mr S. Carisbrooke |
| For the Applicant | Mr P.G. Priest, Q.C. with Mr T. Kassimatis | Lethbridges |
CHARLES, J.A.:
I have had the advantage of reading the reasons prepared by Eames, J.A. in this matter. I agree with his Honour that the application for leave to appeal against conviction should succeed, and, subject to the following comments, substantially for the reasons given.
Count 5
Under ground 2 it was argued for the applicant that the prosecutor’s aggressive questioning forced the applicant in the witness box to adopt the false position that the complainant T was a liar. I accept this contention. The prosecutor repeatedly put to the applicant that insofar as he disputed T’s allegations, he was saying that she was lying. In the circumstances of this case the prosecutor should not have been permitted to do so, for the reasons given in R. v. Buckley[1]. This form of cross-examination made it possible for the prosecutor to put to the jury in his address that the defence case was that there had been a giant conspiracy between the complainants. The prosecutor put it as follows –
“there’s a basic more fundamental consideration in the context of this trial, much more basic. And that is that what really must be involved in the context of this trial, it being that T must be telling a pack of lies, and R must be telling a pack of lies; what’s really involved is that there must be some giant conspiracy to tell lies. A giant conspiracy between T and R who don’t know each other from a bar of soap to tell awful enormous lies against Dr Bajic. And in addition to that, Felicity Jarred, or somebody, must be involved, running backwards and forwards passing these lies on backwards and forwards, so that they become similar, about what Dr Bajic did, and/or said. A giant conspiracy between them to lie. To lie. I submit that is preposterous.”
[1](2004) VSCA 185 per Nettle, J.A. at [9].
In fact this was not the defence case at all. The defence case certainly was that R was lying. But as to T, the way it was put by defence counsel in his address to the jury was as follows –
“I do say to you that her story is bizarre and incredible and you should not believe it. It is a childish fantasy that she has painted before you.
It is the fantasy of a thirteen year old boy who is discovering girls for the first time or discovering the difference between men and women. It is not the behaviour – there are some – it is not the behaviour of a 55 year old general practitioner with an impeccable reputation. Could she have fantasised this as a result of some contamination of her understandings by things she had heard from her friend Felicity Jarred?”
This was consistent with counsel’s cross-examination of T.
The prosecutor’s approach resulted in his being able to put to the jury an entirely false version of the defence case. It may well, as Nettle, J.A. said in Buckley, have deflected the jury from a proper assessment of the credibility of the applicant in accordance with the burden and standard of proof borne by the Crown.
I have no doubt that the verdict as to count 5 must be set aside.
Count 8
On this count there had indeed been other evidence and there is a question whether the verdict on this count must also fall. The prosecutor had, as Eames, J.A. has pointed out, treated the defence case as part of an intertwined whole, and there was a risk that the deliberations of the jury on count 8 were tainted in consequence. But in addition the applicant had given sworn evidence, denying the allegations of both complainants. T’s case against the applicant had been distorted by the course taken by the prosecutor, for the reasons given by Eames, J.A. The jury had rejected the applicant’s denial of T’s evidence on count 5, possibly because their attention had been distracted by the false theory of a giant conspiracy. Their rejection of the applicant’s evidence on count 5 may also have been a factor leading them to reject his evidence also on count 8.
It follows that the convictions on both counts should be quashed and a new trial ordered.
EAMES, J.A.:
The applicant, a medical practitioner, stood trial in the County Court on a presentment alleging seven counts of rape against one patient, T (counts 1-7), and one count of rape involving a patient, R (count 8). The offences were alleged to have occurred between 21 September 2000 and 28 February 2001 at the Nhill Medical Clinic, at which the applicant worked. After a trial which commenced on 23 September 2004 the jury retired at 1.15 p.m. on 11 October to consider its verdict. The jury’s deliberations continued that afternoon and then resumed on 12 October, continued on 13 October and they returned a verdict of guilty on one count involving T (count 5) and one count involving R (count 8) at 3.52 p.m. on 14 October 2004. During the trial the jury had been directed by the judge to return a verdict of not guilty on count 7. Save for the convictions on counts 5 and 8, the jury returned verdicts of acquittal on all other counts. A ninth count which had been on the presentment (being a count of indecent assault against a third patient) had been severed, upon pre-trial application by counsel for the applicant. A trial with respect to that count has not yet been conducted.
After hearing submissions on sentence the judge sentenced the applicant to two-and-a-half years’ imprisonment on each count and ordered that eighteen months of the sentence on count 5 be served cumulatively upon the sentence on count 8. The total effective sentence therefore was four years and his Honour fixed a non-parole period of fifteen months.
The primary grounds on which the application for leave to appeal against conviction was pursued were grounds 1, 2, 4 and 5. Ground 3 was abandoned and ground 4, although the subject of some written submissions, was not addressed in oral argument by counsel for the applicant. Although ground 4 was not abandoned, counsel advised that it was not relied on as being of itself a ground which would justify setting aside the convictions, but ground 6 called in aid the cumulation of errors said to be raised under the other grounds[2]. The critical grounds read as follows:
[2]R. v. Kotzmann [1999] 2 V.R. 123.
“1.The trial miscarried as a consequence of the learned trial judge’s having not, adequately or at all during his charge, summarized the trial’s evidence and, in particular, that of the applicant.
2.The trial miscarried as a consequence of:
(a)the Prosecutor’s cross-examination of the applicant on the possible motives of the complainant [T] to lie; and
(b)the judge’s failure properly or at all to limit the scope of such cross-examination to matters expressly raised by the defence.
4.The learned trial judge failed adequately to direct the jury, and erred in his directions to them, on consent. In particular, he failed to direct that, unless the Crown proved the applicant was aware that each complainant:
(a)was not consenting; or
(b)might not be consenting
the Crown would not have proved the mental element of the offence charged.
5. The guilty verdicts of the jury were:
(a)inconsistent with the verdicts on the remaining counts; and
(b)unsafe and unsatisfactory, since a properly instructed and reasonable jury ought to have had a reasonable doubt about the guilt of the applicant.”
Counts 1-7: Counts relevant to complainant “T”.
I will identify the complainant to whom counts 1 to 7 related as “T”. The complainant T was aged 35 years when she gave evidence. She had suffered Crohn’s disease for thirteen years and multiple sclerosis, which had been diagnosed in 1999. She said that Crohn’s disease was an ulceration and inflammation of the bowel. The Crown case was as follows.
Count 1 related to her second consultation with the applicant which occurred on 21 September 2000. She complained of a sore throat and headaches and that her Crohn’s disease was flaring up. The applicant asked her to remove her clothes from the waist down and as she did so she observed him watching her through a partially closed curtain. He conducted a standard check for Crohn’s disease (which included checking her belly button area) but then placed two fingers on her pubic hairs making small circular motions to the outer part of her vagina and then inserted his fingers, making the same motions, inside her vagina, including to her clitoris. He asked her if she was interested in frequent sex. Although she thought it was a pretty weird examination she believed the doctor was just being thorough.
After receiving a telephone call from the applicant to make a further appointment she attended again on 10 November 2000, on which occasion the Crown alleged the offence being count 2 was committed. On that occasion T believed she had a bladder infection and told the applicant that she was not feeling well and had troubles “down there”. The applicant told her to take her clothes off from the waist down and again watched her getting undressed through the curtain. He then placed two fingers on the outside of her vagina and then on the inside, touching her clitoris, and again asked her about the frequency with which she had sex. When she changed the subject the applicant got annoyed and inserted his finger deep into her vagina. Later in her evidence, however, she said that the questions about her sex life arose only after she had put her clothes back on. After completing the examination the applicant watched her get dressed, T said, and he then asked her questions about her sex life.
Count 3 was alleged to have occurred on 23 September 2000. T told the applicant that she was experiencing a very heavy discharge, which she thought might be thrush. He asked her to remove her clothes from the waist down and again placed two fingers inside her vagina and, with a circular motion, touched both her vagina and clitoris. He asked her whether she masturbated, and when she said she did he inserted his fingers deep into her vagina for ten to twenty seconds. He was not wearing a glove.
Count 4 was alleged to have occurred between 1 November and 30 November 2000 when T attended to discuss options for contraception other than using a diaphragm. She told him that she felt pain in her left breast. The applicant asked her whether she had brought the diaphragm with her and asked her to remove her T-shirt and bra. T did so and, she said, he then caressed her nipple, smiling at her as he did so, and asked her if she was more interested in sex. She changed the subject, whereupon the applicant rolled his eyes and got cross. He then asked her to lift up her skirt and caressed the front of her underwear. He then tugged the top of her underpants and told her to get them off. He then placed two fingers in her vagina, again using a small circular motion on her vagina and clitoris. He again asked her if she was more interested in sex and said he would refer her to a gynaecologist. The complainant told the jury that she felt the examination was wrong; she felt dirty and vulnerable. Subsequently she attended for the appointment which the applicant had arranged with the gynaecologist, Dr Morris, who inserted an IUD and testosterone implant.
On 16 December 2000, four days after the insertion of the IUD, T attended the applicant, complaining of extreme pain. The events alleged to have occurred on this day constituted count 5. The applicant asked her to remove her lower clothes and she got onto the table. She was bleeding heavily. He inserted two fingers, one from each hand, into her vagina. He had a glove on one hand only. T said she cringed in pain.
On 28 February 2001 (count 6) T said she attended on the applicant with a complaint about sensation she was experiencing in her legs. At the request of the applicant she removed her shorts and underwear. T said the applicant was staring at her underwear as she was doing so. When she lay on the table he asked her to bring her knees up and he caressed her calf muscles and traced his fingers up the inner thigh to her vagina and then inserted a finger and pushed hard on her clitoris. He then told her she could get dressed. He was not wearing gloves. The applicant watched her as she got dressed, T said. He then moved his chair closer to her and asked numerous questions about her sex life.
Count 7 was alleged to have occurred between 21 September 2000 and 28 February 2001. When the applicant was doing a final vaginal examination he inserted his finger into her vagina about five times, as though tickling her. A verdict of not guilty was entered by direction on this count.
The complainant T said there were other occasions when she had attended the applicant but he had not examined her, although on one of those occasions he wheeled his chair over towards her, pinned her against the wall and asked her questions about her sex life.
In 3 March 2001 T telephoned her former general practitioner, Dr Horwood, and complained about the applicant’s conduct. He asked her to make written notes and to see him the following week, which she did. In her notes she recorded that on her “first encounter” with the applicant he touched her improperly. It was put to T in cross-examination that that account conflicted with her oral evidence that on the first occasion when she saw him the applicant had been most thorough. She said she left out the word “improper” in her note, which she wrote hurriedly.
Count 8: The count relevant to complainant “R”
As to count 8 the Crown case was as follows. The complainant R said she was 24 years of age. She had grown up at Nhill but she had moved to Alice Springs with her mother and subsequently moved to Adelaide. In September 2000 she returned to Nhill and became ill with the flu, whereupon on 29 September 2000 she attended the medical clinic for her flu symptoms and also to have an STD check. She had not seen the applicant before. She told him that she had the flu and she wanted an STD check as she had participated in unprotected sex. At his request and after discussions about the need for a pap smear, which she declined, she got onto the table and he listened to her chest with the stethoscope. He told her to remove her pants. She did so. The curtain was not drawn.
As she removed her pants and underpants the applicant then inserted a speculum in her vagina, which R said was very painful, and he proceeded to take vaginal swabs. He asked her questions of a sexual nature, which she answered, believing them to be relevant. He told her to relax and then put a finger inside her vagina and started playing with her clitoris with a circular motion. He asked her if that felt “good”, and she replied that it felt really uncomfortable. He then removed his right glove, reinserted his finger and repeated the circular motion, again asking whether it felt “good”[3]. She again said she felt uncomfortable, and the applicant then asked her to show him how she masturbated. She said she would not. She put her clothes back on and, after getting a prescription for antibiotics, left the room.
[3]The applicant told the jury that English was his third language and that he was not very fluent in English at that time.
R said that after leaving the surgery she telephoned her mother in Darwin, but she was not available. She filled the prescription and then returned to her grandmother’s house, where she was staying, and rang her mother again in Darwin and told her mother that the doctor had “touched her down there” and that he was “playing with me”. She then attended at the home of a friend, Felicity Jarrad.
Under cross-examination R agreed that she was experiencing an itchy groin and vaginal discharge when she attended the doctor. He had sought an explanation from her as to why she wanted an STD check and he had warned her about the risks of unprotected sex. She had had a speculum examination from a doctor on a previous occasion but, R said, this was more painful than that time. She did not believe the applicant was intending to cause her pain. R denied the suggestion that rather than stimulating her clitoris with circular motions the applicant was merely adjusting the speculum to make it smaller and less painful. R denied that the comments such as, “Does that feel good?”, related to his adjustment of the speculum.
R denied a suggestion that while she was being examined by the applicant she had grabbed his tie and demanded “four pethidine”. She said that although she had used heroin seven years’ previously she was not then an addict, nor had she ever been an addict. She said she was not aware that pethidine was used by heroin addicts when they could not obtain heroin.
The complainant R denied that she knew the complainant T. When Felicity Jarrad gave evidence it emerged that she was a friend of both of the complainants although she said they did not know each other.
Evidence was called from the mother of R concerning the complaint made by her daughter after the examination. She said that her daughter had told her that the doctor had “touched her where he shouldn’t have” and asked her questions about whether she masturbated and what sexual positions she liked. She had told her mother that he had not been wearing a glove. The mother then telephoned the medical clinic and, although she refused to give her name, was put through to the applicant. She asked him why he had questioned her daughter about sexual positions, which the applicant denied doing.
A witness, Kelly Hiscock, gave evidence that she was present at Felicity’s house in September 2000 when the complainant R arrived and appeared to be upset. R told Felicity not to take her children to see the applicant.
Felicity Jarrad gave evidence that she knew both R and T and had spoken to both of them about the applicant in 2000 and 2001, but had done so separately. She said that on one occasion in late 2000 the complainant R had arrived at her home and said “Don’t ever take your girls to that fucking new Dr Bajic”. Ms Jarrad said that on another occasion, in about February 2001, she had gone to see the complainant T, who was on her way to a medical appointment. Before T left for the doctors she said to Felicity Jarrad “Don’t take your daughters to Dr Bajic”. She told her that the applicant had touched her on the vagina and asked her sexual questions. Ms Jarrad said to T that her friend R had said something similar to her.
Felicity Jarrad agreed it was surprising that T and R did not know each other, as Nhill was a small town of only about two thousand people. Felicity denied passing information between T and R about the allegations concerning the doctor.
Evidence was given by Nathan Jones, who was married to the sister of the complainant R’s mother. He said that he was present when the complainant’s mother was conducting a conversation on the telephone and appeared to be distressed. There was later a second telephone call but he was not then present. Teresa Jones, who was the sister of the complainant’s mother, gave evidence that she was present when the complainant’s mother received a phone call from the complainant R, and the mother appeared agitated and worried by the call. She was present when the mother made a telephone call and spoke to the applicant and told him what her daughter had told her about the visit to the applicant.
The two receptionists from the medical clinic said they could not recall receiving a phone call from somebody who, without giving their name, wished to speak to the applicant. Neither knew of any complaints made against the applicant of a sexual nature.
Medical evidence from Dr Odell from the Victorian Institute of Forensic Medicine asserted that touching of the clitoris, as described, would not be a proper medical procedure for any of the symptoms described by either patient. Internal examinations would never occur un-gloved, and if an internal examination was required a speculum would be used first. A circular caressing motion was not acceptable medical examination procedure, he said.
Ground 2: Cross-examination as to the motive of ”T” for lying.
In terms, Ground 2 raises a complaint that the prosecutor inappropriately cross-examined the applicant as to the motive of the complainant T for lying, but, as I shall discuss, the primary complaint made during argument was not that the questioning was of a kind that asked, directly, ”Why would she lie?” but rather that it impermissibly asked “Is she lying?” Both forms of questioning were impermissible, Mr Priest contended, and although the prosecutor did not expressly ask the applicant to offer a motive for the complainant T to be lying, the manner in which he questioned the applicant was such as to inevitably raise that question in the minds of the jurors.
Mr Priest submitted that the prosecutor had not gained any entitlement to employ such cross examination of the applicant by virtue of the conduct of the defence, because the defence case was never put on the basis that T was lying but, rather, that her evidence was a fantasy. Furthermore, he submitted, the defence case had never involved an assertion that T had a motive to lie. The applicant had been cross-examined in such a manner as to compel him to adopt a defence which he had never asserted, it was submitted.
When T was cross-examined the closest defence counsel came to making an express allegation of lies against her arose when she was being questioned about the “circular motion” which was used by the applicant on each occasion that she said he penetrated her. The cross-examiner put to T that she had not described such a circular motion when she made her notes of her complaints which she gave to Dr Horwood in March 2001. T said that she was pretty stressed out when she wrote those papers and it was just a rough statement, and not her final statement, which was that made to the police. The note given to Dr Horwood was “a rushed unorganised piece of paper”. Defence counsel pressed her as to why she had omitted reference to the circular motion in her note to Dr Horwood. He asked her “You have made it up since?” She denied that was so. The witness said she had not made anything up.
Later, counsel put to T his client’s case, that “Not only did he not do that circular motion, he did not examine your vagina on 21 September 2000?” The witness answered that she had sworn on the Bible to tell the truth, nothing but the truth. Later, when cross-examining the witness about her allegation that the applicant had stared at her underwear then tugged at her panties and told her to get them off, counsel put to T, “I suggest to you that nothing of the sort occurred, this is a fantasy that you have somehow or other invented?” The witness denied that suggestion. Furthermore, as to the events on 16 December, it was put as to her allegations, “It’s not true is it?” And when no response was received counsel asked, “I suggest to you that nothing of the sort happened like that. You came in for some further discussions following this minor surgical procedure and discussion of the testosterone implant.” Mr Priest submitted that these questions were mere puttage and did not amount to accusing the witness of lying nor, he submitted, was it put to the witness that she had a motive for lying.
Mr Priest agreed, however, that counsel later “explored” the possibility that there may have been a motive for the evidence T was giving, when he put questions which asked whether she had ever discussed with anyone the possibility of receiving compensation for what she said had occurred. T was asked by defence counsel, “But have you pursued the idea that you may be able to obtain some compensation?”, and, “Have you considered the possibility that you could sue him for crimes compensation?” She denied those matters. Mr Priest submitted that by those questions defence counsel had not asserted that T was a liar and/or that she had a motive to lie.
Before considering whether the defence case had made those imputations it is appropriate to set out passages from the cross-examination and to discuss the manner in which defence counsel addressed the jury as to the defence case.
The cross-examination of the accused.
Questioned about a note of 1 November 2000 which recorded that T had been to see him about a diaphragm, cross-examination was as follows:
Q.When she says that she also consulted you about a sore breast, that’s a lie is it?---
A.That’s a lie. I never kept complaints about the breast and I never examined her breast.
Questioned about his contention that on 16 December 2000 T had not complained that she was experiencing abdominal pain at the time of her attendance:
Q.She’s given evidence that she was complaining about severe abdominal pain, you say that’s false do you?---
A.I say that’s false, yes.
Q.You in fact say that that visit, that you didn’t examine her at all, don’t you?---
A.No there was no, any need for examination.
Q.Yes, so she is lying when she says first, that she came with severe abdominal pain?---
A.That’s a lie.
Q.She’s lying when she said “He said, ‘lie down on the bed and remove your lower clothing’” that’s a lie too?---
A.That’s a lie yes.
A few pages later in the cross-examination the applicant was again asked about the events of 16 December 2000 (count 5). As to T’s evidence that she had complained about severe pain, the prosecutor asked, “That’s a lie – she’s lying about that, is she?”, to which the witness agreed. It was put to the witness that his position was that although she had had the IUD inserted a few days before she attended she had not presented with severe abdominal pain. He agreed that that was the case, she did not. He was then asked “When she says that she did, that’s not true, she’d made that up?” He replied, in somewhat awkward language, “She, she didn’t, she didn’t look to me, I told that (sic) she is in any severe or even moderate pain.”
As to T’s allegation that on 21 September 2000 he had rubbed her vagina and clitoris, counsel asked “What she says is untrue?”. The witness said “That’s a lie”.
Questioned about her attendance on 10 November 2000 for a bladder infection, and his evidence that he made no examination at all on that day, the witness confirmed that there was no examination. “She’s lying about this?”, the prosecutor asked. “She is lying”, the applicant replied.
He was asked about T’s evidence about the 23 November 2000 examination for vaginal thrush, during which examination, she said, she lay down on the bed half naked. It was put to him “That’s not true?” The witness agreed it was not true. He was then asked about T’s evidence that he had inserted his finger deep into her vagina, “That’s not true?” and the witness said “That’s not true”.
The prosecutor repeatedly asked the witness to confirm that there was no room for mistake; it was all black or white, either lies or not. “She’s lying about this?” The witness said “She is lying”.
As to the events of 23 November it was put, “When she says she was told to lie on the bed she’s lying?” The witness agreed “That’s not true”. As to her attendance on about 1 November 2000, when she says she was told to strip her lower clothing, “That’s a lie?” When she said that he rubbed her vagina and clitoris with a circular motion, “That’s a lie?”
The above sample of the questions gives the flavour of the cross-examination. The approach of putting each of the accounts of T in her evidence to the witness and then asking “That’s a lie?” was repeated throughout the cross-examination. The witness agreed each time that it was a lie or, at least, not true.
Eventually, when being questioned about whether he could offer an explanation as to why T failed to return for further consultations after the last occasion, counsel for the applicant objected and submitted that the applicant “doesn’t have to provide an explanation for why [T] did what she did”. He submitted “My learned friend has shifted the onus of proof. We don’t have to establish why she went...”
His Honour agreed that that was the law but said that he did not think that it prevented counsel from asking the questions he was asking, but he asked the prosecutor what the purpose was of the questioning, to which the prosecutor replied that “My learned friend has suggested a possible motive for the woman to lie and he’s raised the issue of a possible motive in compensation seeking so I’m entitled to seek – to ask questions about various circumstances”. His Honour said he would not stop the prosecutor from asking questions.
Counsel later renewed the objection, and the jury was sent from the courtroom. The prosecutor, without being prompted, acknowledged that counsel’s objections purported to be based on the law as stated in Palmer v. The Queen[4]. The prosecutor said that “Palmer’s case acknowledges that if the defence say nothing about possible motives then the Crown cannot raise it in any way. But if the defence raise it the Crown is not obliged to sit back and say nothing about the topic and it’s entitled [to] explore whether there is a motive”.
[4] (1998) 193 C.L.R. 1.
Defence counsel said that he had no argument against the prosecutor’s questioning of the applicant with respect to the complainant R, on count 8, but with respect to T he had, by way of “exploration”, merely asked her a question about whether she had applied for compensation. Counsel agreed that with respect to R he had certainly put to her that she had a motive to lie, by virtue of her intention to claim compensation, but submitted that he had not asked that with respect to T. He said that with respect to T, he had merely explored the question but had not suggested that she did indeed have a motive.
His Honour ruled that defence counsel had opened the question of motive by the questions which he had asked, but that in any event it was clearly open to the prosecutor to cross-examine with respect to motive concerning R.
The applicant was thereupon further cross-examined as to why “apart from the compensation theory” there could be any reason why T did not return to see him after 28 February 2001. His Honour then interrupted counsel and gave the jury a direction about an accused person not having an obligation to explain or offer a motive for a lie. After that direction was concluded counsel continued to cross-examine, putting to the witness that he was not aware of any reason why T would have a grudge against him or would want to do him harm. The questioning then continued:
Q.You know that the prosecution is that you made up plausible excuses to examine her. That you know that that’s the prosecution case, don’t you? ---
A.Yes I know this.
Q.And that’s what you did isn’t it? ---
A.No that’s not ---
Q.You’re the liar in this Court aren’t you Sir ---
A.No I am not.
Q.She’s telling the truth about what you did to her isn’t she? ---
Q.No she is lying.
The prosecutor asked the applicant about T’s evidence of questions about orgasm and masturbation. The applicant said he would never ask those questions and the prosecutor asked, “She is lying when she says that?” The applicant said that if she had asked him questions on those matters he would not refuse to answer her question, so far as he could, and it was put to him that it was he who raised the topic not T: “She is lying all about that as well?”
The prosecutor finished his cross-examination with respect to the complainant T by putting to the applicant “I suggest that you are the liar in this Court Dr Bajic. You are the liar in this Court aren’t you?” He responded, “I’m not a liar. I don’t have any reason to lie anything.”
Counsel then turned to cross-examine the applicant concerning the complainant R. Once again, the questioning was replete with the assertion “She is also lying”. No complaint is made as to that questioning concerning the evidence of R.
The final addresses
In his final address, which was, of course, delivered before the defence address, the prosecutor said to the jury that the defence case was that T was a liar and that the whole Crown case was a pack of lies. The prosecutor said that the defence had chosen to put up a motive to explain the evidence, and that on the defence case there must have been a conspiracy to tell lies.
In his closing address defence counsel said of T’s evidence that it was a strange and bizarre account, a “childish fantasy”. In contrast, he said of the witness R that she had lied and was motivated by compensation. With respect to T it was said that she had been involved in unintentional contamination of evidence, but otherwise that her account was a fantasy.
The directions to the jury
Although Mr Trapnell, counsel for the respondent, suggested that the prosecutor’s questions had not been of the “Why would she lie?” kind, but rather were enquiring as to the precise ambit of the defence case, the trial judge seemed not to doubt what was meant by the questions. The learned trial judge gave a particularly strong, repeated, and detailed charge to the jury about questions which they might consider had been raised directly or obliquely, such as, “Why would she say this if it was not true”. He directed the jury that there was a risk of the onus of proof being reversed by such questions and strongly directed the jury to be wary of permitting that to occur. His Honour said that there might be all sorts of reasons why a person might say something which was not true but that the applicant did not have to prove that T had an ulterior motive.
With respect to the complainant R, his Honour said that motives for lying had been suggested, but said that whether they were correct or not would never be known. He said in the case of the witness R the suggested motive was that she wanted Pethidine and was angry when that was refused. His Honour then said with respect to T, that “There is the question of whether or not a motive or something that affected her was a desire for compensation and you have heard a lot of evidence about that and a lot of argument ... If and in so far as compensation is a factor in [T’s] evidence what is important is not what the fact is, not whether she could have got compensation or whether she is out of time, but whether she thought she could get compensation, even though she might ultimately have been wrong. I just remind you that those are suggested matters but ...”
Most unusually, at that point counsel interrupted his Honour’s charge to point out that it was incorrect to state that the defence had suggested any motive to lie on the part of T. He said the contention of compensation as a motive was raised only with respect to R. His Honour then continued his charge and said, in effect, that if he had got the name wrong as to whom the defence alleged to have had a motive to lie the jury would understand the correct position. He then continued his charge.
Cross-examination as to “Why would the complainant lie?”.
In Palmer v. The Queen[5] Brennan, C.J., Gaudron and Gummow, JJ. held:
‘It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot provide any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be provided to impeach the complainant’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.’
[5](1998) 193 C.L.R. 1
Their Honours continued[6]:
“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.”
[6]At 7 [8].
As was made clear in those passages, and as I shall further discuss, whilst it would generally be impermissible to ask an accused person “Why would the complainant lie?”, the position might be different if the accused, whether through his counsel’s cross-examination of the complainant or in his evidence, had suggested that the complainant did in fact have a motive to lie. In that event the prosecutor would be entitled to cross-examine the accused to establish that insofar as the inference of the suggested motive was based on facts in the knowledge of the accused, he had no basis for asserting the existence of those facts.
Thus, in the present case, if defence counsel’s cross-examination constituted an assertion that the complainant T was motivated to lie by a desire to obtain compensation, the prosecutor would have been entitled to cross-examine the applicant to establish that he could provide no evidence to support that assertion. If motive to lie was not asserted by the defence, however, the prosecutor would not be entitled to challenge the accused, in cross-examination, to suggest a motive for the complainant to lie.
In argument before the trial judge the prosecutor, referring to Palmer, submitted that defence counsel had indeed raised the question of motive to lie and, thus, the prosecutor was entitled to cross-examine the applicant in order to demonstrate that he was unable to suggest any motive for the complainant to lie. As the extracts from the cross-examination show, however, that was not the form in which the questions were in fact asked by the prosecutor. Rather, the questions were of the “Is she lying?” kind. Perhaps in recognition of that fact Mr Trapnell, whilst maintaining that the defence did invite the jury to conclude that the complainant T was a liar and had a motive to lie, contended on appeal that the prosecutor’s questioning merely sought to clarify whether the applicant was contending that the complainant was lying or whether some other explanation was being offered.
If the defence case was not being put explicitly on the basis that T was a liar, but merely that T’s recollection of events had been contaminated by her being informed of what was R’s alleged lying account of her own sexual assaults by the applicant, then, so Mr Trapnell submitted, it was nonetheless legitimate for the prosecutor to determine whether, in reality, the defence case was that not only was R lying, so too was T.
As I earlier noted, defence counsel denied that he had attributed a motive to the complainant T to lie, or that the defence case was that she was lying. He contended that he had merely “explored” the possibility of there being motive to lie, rather than asserted its existence, and having received a negative answer, had then dropped the topic. There was, therefore, no evidence on that topic.
In the joint judgment their Honours drew this distinction in Palmer:[7]
“It is necessary to distinguish between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie. The distinction was referred to in the context of a criminal trial by Hunt CJ at CL in another passage from his judgment in Uhrig[8]:
‘What this Court said in R v F[9] and in R v E[10] should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court’s decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all.’”
[7]At [10]
[8]Unreported, Court of Criminal Appeal NSW 24 October 1996, at 16-17.
[9](1995) 83 A.Crim.R 502, at 511-2.
[10](1996) 39 NSWLR 450, at 464.
The words emphasised by me in the above passage are of importance[11]. In terms, defence counsel never put the positive contention of there being a motive to lie. The jury might, however, have understood that to be implicit in the questions asked of T about compensation. If that was the effect of the questioning a prosecutor might at least have the right to find out by cross-examining just what the defence was suggesting to be the case. I have concluded, however, that the questioning here did not fall into that category. In my view, the questioning was not conducted for the purpose of clarifying the defence case but, rather, was intended to force the applicant to adopt a defence position which neither he nor his counsel had asserted, and which enabled the prosecutor to then knock down the defence, by contending that it constituted a far-fetched allegation of conspiracy among prosecution witnesses. That was a defence which was entirely of the prosecutor’s own making. The tentative questions on the compensation issue and as to motive put to T, did not amount to a defence case alleging lies and conspiracy on the part of T, as defence counsel made clear in his address and during the charge, when he interrupted the trial judge. The questions of the complainant T did not expressly accuse her of lying. Whilst they might have carried that implication they were equally consistent with an assertion that her account was a product of fantasy.
[11]In Palmer, at 38, Kirby, J noted that it was common ground between the parties that where an accused suggested that a complainant had a motive to concoct, falsify or distort evidence the prosecutor was entitled to test the accused as to that suggestion, but he could not be asked to speculate as to the motive of the complainant or to express his opinion as to her motivation.
In addition to forcing the applicant to adopt a defence position which had not been his case, the question “Is she lying?” in the context of this case was also inviting the jury to speculate “What motive does she have to lie?”, the very question which Palmer’s case prohibited in these circumstances. In the joint judgment in Palmer their Honours agreed with the observation of Gleeson, C.J. in R. v. F.[12] that an unspoken question “Why would the complainant lie?” often hovered over a trial. They agreed with his Honour’s statement that while that was “often of great practical importance, it is never the ‘central theme’ of a criminal trial”. The central theme was in fact whether the Crown had proved its case beyond reasonable doubt, and as to that, the accused was not required to provide a motive for a complainant to lie.
[12](1995) 83 A.Crim.R 502, at 511-2
“Is the complainant lying?”
If there be any doubt whether the cross-examination of the applicant was of the kind asking or inviting speculation as to “Why would she lie?” there can be no doubt that it was replete with instances of the question “Is she lying?” That form of cross-examination is also impermissible.
A week after the present case concluded, the Court of Appeal delivered its decision in R. v. Buckley. [13] In Buckley, Nettle, J., with whom Winneke, P. and Charles, J.A. agreed, held, citing a number of authorities, including Palmer:[14]
“Whatever may have been the position in the past, the law in this State is now that any witness and particularly an accused who gives evidence ought not to be asked in cross-examination whether another witness is telling lies or has invented something. Cross-examination of that kind is impermissible because it may deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the accused in accordance with the burden and standard of proof borne by the Crown. The problems which it creates are not easily overcome by the Judge telling the jury that the accused is not required to provide an explanation for the propensity of other witnesses to lie and the very fact of cross-examination gives to the cross-examiner clear benefits which he or she is not entitled to have. The problems become particularly acute in a case like this where the central issue involves oath against oath.” (Footnotes omitted, emphasis added).
[13](2004) VSCA 185.
[14]At [9]
Mr Trapnell submitted that Buckley could be distinguished on its facts, or else, that the statement of Nettle, J.A. was too wide, if it was intended to prohibit questioning of the character employed in this case, because the defence must be taken to have constituted an implicit if not overt attack on the truthfulness of the evidence given by both complainants, who were giving similar accounts.
In my opinion, two quite distinct principles were addressed in Palmer and Buckley, and the principles have quite different rationales. There was, however, potential for them to overlap.
As Callaway, J.A. observed in R. v. Cupid[15], the objections identified in Palmer to cross-examination of an accused person in terms “Why would she lie?” were (a) that such a question invites the jury to speculate, (b) is unfair to the accused, who is not in a position to see into the mind of the complainant, (c) may undermine the onus of proof and (d) the fact that the accused cannot suggest a motive is generally irrelevant. Such a question had the potential effect of reversing the onus of proof, by imposing an obligation on an accused person, in an oath against oath case, to provide a motive for the complainant to lie, if he was to be acquitted. The statement in Buckley addressed a different problem, one which had been identified in many previous decisions. In an often cited passage of the judgment of Bray, C.J., Hogarth and Walters, JJ. in The Queen v. Leak[16] the Court held:
“In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witness’ mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness’s testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness, least of all a detective , is a liar”.
[15][2004] VSCA 183 at [28].
[16][1969] S.A.S.R. 172, at 173-4.
As was observed by Hidden, J. in R. v. Rich[17] - a case similar to the present, where the prosecutor asked similar questions to those in this case and then addressed the jury on the basis that the defence amounted to an allegation of conspiracy - questioning of the “Is she lying?” kind is analogous to that addressed in Palmer. Hidden, J. concluded that the cross-examination and final address “had a tendency to deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the appellant, in accordance with the burden and standard of proof borne by the Crown”.
[17](1998) 102 A.Crim.R 165 at 170, Grove and Hulme, JJ. agreeing.
Following Palmer questioning would not now be permitted of the kind which the judgment in Leak would have allowed, namely, as to whether the accused could proffer any reason why the complainant would have hostility towards him or would tell lies about him. Whether such questions might be asked of a witness other than the accused was not an issue before us, and I express no opinion as to that. As Adams, J. observed in R. v. Baker[18] questioning of this kind when directed to an accused person carries particular dangers of deflecting the jury from the onus and burden of proof in a sexual offence case. Although dissenting in Palmer McHugh, J. accepted that there were dangers in permitting cross-examination of an accused as to his knowledge of facts suggesting motive, given the potential of such questions to reverse the onus of proof.
[18][1999] NSWCCA 277, at [21].
The statements in Leak concerning “Is she lying ?” questions have been followed many times by appellate courts in Australia, and now in Buckley[19].
[19]See R. v. Rich, supra, at 169; R. v. Dennis [1999] NSWCCA 23 at [45]; R. v. Baker [1999] NSWCCA 277 at [21]; Middleton v. R. (2000) 114 A.Crim.R. 141 at 144 [9]-[11]; R. v. Foley [2001] 1 Qd.R. 290 at 297; and see too the judgments of McHugh, J. in Palmer at 25 and of Charles, J.A. in R. v. Rodriguez [1998] 2 V.R. 167 at 177-8.
The questions asked by the prosecutor, it may be thought, would have been in the mind of the jury, in any event. That consideration was addressed by McHugh, J. in his dissenting judgment in Palmer. His Honour, agreeing with observations of Callaway, J.A. in R v. Rodriguez[20] (which were not approved in the joint judgment in Palmer) observed[21] that asking why a witness would lie was a relevant question when assessing the credibility of a witness. He held that it was an unrealistic view of jury deliberations to believe that they would not ask that question, and it was better that that be assumed and that they receive directions on the topic. That view, however, did not prevail in Palmer.
[20](1997) 93 A.Crim.R 535, at 553.
[21]At 27-28 [68]-[69].
In my opinion, the questioning in this case clearly offended the principle stated in Buckley and (perhaps directly in some instances) also offended the principle in Buckley by its implicit invitation to the jury to pose the unasked question, “Why would she lie?”. Having concluded that the prosecutor should not have been permitted to cross-examine as he did, the question remains whether the directions given by the judge prevented a miscarriage of justice[22].
[22]Palmer, at 11 [13].
Did the directions cure the problem?
In Palmer Brennan, C.J. Gaudron and Gummow, JJ. considered whether the directions of the judge had cured the problem caused by the prosecutor’s questioning. Their Honours held that the judge had very clearly alerted the jury to the proposition that people sometimes lied for no discernable reason. Their Honours accepted that the directions correctly instructed the jury about the onus and standard of proof, but concluded that they doubted whether the directions were capable of neutralising the prejudicial effect of the questions, and since the accused had been unable to offer any reason for the complainant to lie his protestations of innocence may have fallen on deaf juror ears, thereby constituting a miscarriage of justice.
The directions of the judge in this case were, it seems, much stronger and more substantial than those considered in Palmer[23]. The questions in Palmer were much more explicitly of the “Why would she lie” character, interspersed with “Can you think of any motive for her to make up these allegations?” My initial thought was that the directions in this case were sufficient to cure any defect in the trial caused by the prosecutor’s questioning. However, the number and emphasis of questions on the “lies” topic – implicitly, in the Palmer form, and, expressly, in the Buckley form - in this case far surpassed anything that occurred in Palmer. The jury could not help but understand that the questions really asked “Why would she lie?”, even if the prosecutor stopped short, at the point of asking “Did she lie?” The latter question was repeated continuously throughout the cross-examination. Upon further consideration of the nature of the cross-examination in this case, and notwithstanding the strength of the directions by the judge, I am of the opinion that the cross-examination may have occasioned a miscarriage of justice.
[23]See, too, the extracts of the directions set out in the judgment of McHugh, J., at 19-20 [45].
In my opinion, this ground of appeal has been made out, and the conviction on count 5, at least, must be set aside. The question remains whether the vice of the questions concerning count 5 so impacted on count 8 that that conviction ought also be set aside, notwithstanding the fact that no challenge was made at trial, nor on appeal, to the questions asked with respect to count 8.
The question is by no means easily resolved. There was much additional evidence as to count 8, which meant that it was not merely “oath against oath”. I have concluded, however, that the force of the attack by the prosecutor, in his questioning as to both complainants, and the fact that in his address he treated the defence concerning both complainants as part of an intertwined whole, means that the risk of inappropriate tainting of the deliberations of the jury on count 8 can not be eliminated. I conclude, therefore, that the verdict on count 8 must also be set aside.
Although that conclusion is sufficient to dispose of the appeal, the question remains whether on quashing the convictions there ought be a re-trial. In resolving that question it is relevant to consider the other grounds argued by counsel for the applicant, although the treatment of those grounds can be truncated to some extent.
Ground 1: Failure to summarise evidence
Before addresses commenced the judge told counsel that he did not intend to summarise the evidence in the case. Neither counsel objected to that proposed course, either then or after the charge had been delivered.
In R. v. De-Zilwa[24] the jury charge almost totally failed to summarise the evidence and counsel’s arguments, and also failed to relate the evidence to the issues raised by counsel concerning the charges. The trial in that case had taken some 6 days only[25]. Charles, J.A., with whom Ormiston and O’Bryan, A.J.A. agreed, held that it was ordinarily a Judge’s duty to assist the jury by summarising the case on either side and relating the law to the facts.[26] His Honour concluded that the charge was so inadequate in putting the applicant’s case and relating it to the questions of law as to lead to the conclusion that the imbalance amounted to a miscarriage of justice.
[24](2002) 5 V.R. 408
[25]This trial ran from 23 September to 14 October, 2004.
[26]At 416 [26]; see, too, R v. Wilkes and Bryant [1965] V.R. 475 at 478–80; R v. Anderson [1996] 2 V.R. 663 at 666–7; Alford v. McGee (1952) 85 C.L.R. 437 at 466.
In my view that cannot be said in this case.
Notwithstanding his expressed intention not to summarise the evidence or addresses, his Honour did so to some extent, and in my view sufficiently so, in the circumstances of this case (despite the fact that it ran so much longer than the trial in De-Zilwa), to mean that this ground could not succeed in overturning the convictions, if it stood alone. That is not to say that a more comprehensive attempt at summarising the evidence and addresses would not have been helpful to the jury. The fact that they asked for substantial portions of the evidence to be read to them demonstrates that to be so. In rejecting this ground of appeal I also place weight, however, on the fact that counsel was given early warning of the proposed course and had the opportunity to ensure that they referred to transcript in their addresses. The absence of exception to the judge’s charge is also an important consideration in my assessment of this ground of appeal.
Inconsistent verdicts
In Mackenzie v. The Queen[27], Gaudron, Gummow and Kirby, JJ. stated a number of propositions drawn from a review of case law relating to the question of suggested inconsistency between jury verdicts on different counts in a presentment. The fourth proposition was stated as follows[28], and repays quoting in full (citations omitted):
“4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman[29], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
‘[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.’
We agree with these practical and sensible remarks.”
[27](1996) 190 C.L.R. 348.
[28]At 367.
[29](1987) 44 SASR 591, at 593.
In this case it was submitted that the conviction on count 5 could not stand with the acquittals on counts 1-4 and 6.
In his sentencing remarks the learned trial judge made the following comment:
“[T]his serves to emphasise the concern I have in respect of the jury’s verdict on Count 5. I know they were instructed to consider each count separately in the light of the evidence which related to each, but given the evidence and the way in which the case was conducted by both parties, the only sensible result was conviction on all counts or conviction on none. I am now not sure that I made that sufficiently clear to the jury. It was so obvious, I thought. There is no way, in my view, on the evidence, given the manner in which the case was conducted and the issues presented to the jury, that a proper conviction on this count and an acquittal on others can be sensibly explained … I know that I am bound by the jury’s verdict, but the conviction on Count 5 causes me grave concern.”
Notwithstanding that very strong statement by the judge I do not believe that the different verdicts are inexplicable or reflect juror confusion.
On the second day of deliberations the jury asked to have the cross-examination of T relating to count 5 read to them, as to the complaints which the complainant said she made to the doctor of abdominal pain. On the following day they asked to have read the whole of the evidence of R and of the applicant. On the fourth day the jury sent a note that they were “not able to reach a unanimous verdict on all counts” (my emphasis). When questioned they said they could not reach a unanimous verdict on any count at all. An hour later they asked to have read the cross-examination of the applicant concerning his examination on 16 December (count 5) and as to the complaint by T that she had pain after the IUD was inserted. Two hours later the jury asked if a majority verdict of nine to two would be accepted (one juror had been discharged due to a bereavement). The judge directed that they had to have 10:1 for a majority verdict. About an hour and twenty minutes later, at 3.45pm the judge whilst considering a defence application for discharge without verdict was about to bring the jury in, when they sent a message asking for five more minutes. At 3.52pm they returned unanimous verdicts on the counts on which they acquitted and majority verdicts for convictions on counts 5 and 8.
Mr Priest submitted that that progression of events suggested a jury that was struggling and had jumped from being unable to reach a unanimous verdict on any count, at one stage, to them being unable to get a majority of 10:1, but having a 9:2 majority, and then suddenly being able to reach unanimous verdicts on many counts and majority verdicts on others.
In my view, the deliberations of the jury and their verdicts do not suggest a confused jury, although it plainly was a jury having trouble reaching agreement. The fact that their task required effort and that they asked for another five minutes does not mean that the jury was rushing to a compromise, so much as that they had come to the end of a careful, but drawn out exercise. If the verdicts were truly inconsistent then of course the suggestion of confusion or compromise would gain great weight. There is a logic to the verdicts, however. As to count 8, there was strong supporting evidence. The fact that the complainant R’s mother had rung the clinic was proved by phone records. There was strong support of recent complaint, overheard by the family members in Darwin. In those circumstances the guilty verdict on count 8 is entirely explicable.
As to count 5, the applicant flatly denied that T had made any complaint that she was suffering abdominal pain when she attended him. He said that she told him only that she had pain the day before she saw him. He denied that she was seeing him because she was then in pain, although she was attending him only four days after the insertion of an IUD. There was evidence that such an insertion might cause abdominal pain. The applicant denied that he had conducted any examination, at all, on this day. Expert evidence suggested that had T complained of abdominal pain it would not have justified an internal examination. The jury might nonetheless have thought it reasonable if the applicant had conducted such an examination, given the complaints of abdominal pain. However, the applicant arguably closed off that option to the jury by his denial that he had conducted any examination at all, because, he said, there had been no complaint of pain that day. Having pitched his defence that way, the applicant was at risk that the jury would believe that the account of the complainant gained support from the objective evidence of the prior insertion of the IUD and its capacity to cause pain and by the very fact that the complainant had attended the surgery that day.
The delay in reaching verdicts is readily explained. The jury might well have been exceptionally cautious about convicting on any charges, being well aware of the probable impact of guilty verdicts on the career and future of the applicant. Having carefully and slowly considered the evidence reasonable doubt might well have been removed on count 5, however. The verdict on that count could have a rational explanation and I am not persuaded that it is inconsistent with the acquittals.
Mr Priest submitted that the length of the jury deliberation and the fact that only an hour and 20 minutes before verdict they had announced that they did not have a majority verdict, suggested that they had rushed at the last minute and had come to a compromise verdict of guilty on one count for each complainant. In my opinion, there is no sound basis for so concluding; indeed, the evidence suggests that this was a very careful and intelligent jury.
I would not uphold this ground.
Whether verdicts unsafe and unsatisfactory
Counsel submitted that the evidence of T was incredible and when coupled with the details of her evidence as to the circumstances of each offence was rendered
even more improbable, so much so that an appeal court ought entertain a reasonable doubt and conclude that the verdicts were unsafe and unsatisfactory[30].
[30]M v. R (1994) 181 C.L.R. 487.
Mr Priest submitted that it was simply absurd to suggest that a doctor would perform internal examinations without gloves on patients complaining of a messy discharge and of bleeding heavily (count 5), and of a possible STD (count 8). The verdicts were also against the weight of very strong character evidence, it was submitted.
It is unnecessary to elaborate on my reasons with respect to this ground. I have dealt with the evidence at some length in my judgment. Having regard to that evidence I am not persuaded that the verdicts are unsafe and unsatisfactory. The evidence was capable of supporting convictions if the defects in the cross-examination had not been permitted to occur, and thus it is appropriate and to order a re-trial on counts 5 and 8.[31]
[31]Peacock v. The King (1911) 13 C.L.R. 619, at 641.
Ground 6
My conclusion as to ground 2 resolves the outcome of the application, and it is unnecessary to consider this ground further.
Conclusion
In my opinion, the convictions on counts 5 and 8 should be quashed and a new trial should be held on these counts.
BYRNE, A.J.A.:
I gratefully adopt the summary of the evidence in this case prepared by my brother Eames which I have read in draft. The principal point raised by the applicant upon this appeal is that the trial miscarried as a consequence of the
prosecutor’s cross-examination of the applicant on the possible motives of the complainant, T, to lie and the judge’s failure properly or at all to limit the scope of such cross-examination to matters expressly raised by the defence.
Unless the matter has been raised as an issue at trial, it is not proper for a prosecutor to cross-examine an accused inviting him or her to speculate as to any motive for a Crown witness to lie[32]. Furthermore, a prosecutor should not in cross-examination ask the accused whether another witness is telling lies or has invented something[33]. As the analysis of my brother Eames demonstrates, this case before the Court is not one where the conduct of the defence has been such as to allege that the complainant was lying or to suggest a particular motive for her to give false evidence. In these circumstances, the cross-examination of the accused raised false issues and offended the principles underlying the judgments in these cases. I agree with him that the damage was not cured by the direction of the trial judge, if, indeed, cure was possible in the circumstances. Accordingly, I agree that the convictions on Counts 5 and 8 must be set aside and a new trial ordered.
[32]Palmer (1998) 193 C.L.R. 1.
[33]Buckley [2004] VSCA 185
I agree too with the conclusions reached by Eames, J.A. upon the other grounds of appeal and with his reasons for these conclusions.
I would, therefore, allow the application for leave to appeal against conviction and allow the appeal.
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