R v Coss

Case [2016] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

R v Coss [2016] QCA 44

PARTIES:

R
v
COSS, Michael Joseph
(appellant/applicant)

FILE NO/S:

CA No 111 of 2015
DC No 113 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 19 May 2015; Date of Sentence: 19 May 2015

DELIVERED ON:

1 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2016

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction is allowed.

2.   The convictions are quashed.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of two counts of rape – where, at trial, the appellant’s counsel suggested the complainant had invented the allegations against the appellant because she did not like the appellant being her father’s drinking mate and because she did not like her father’s partner at the time – where, in the closing address, the prosecutor asked the jury a rhetorical question as to why the complainant would make a false allegation against the appellant – where the prosecution encouraged the jury to place the complainant in a class of people unlikely to give false evidence – where the primary judge directed the jury that it was for the prosecution to prove that the complainant was accurate and truthful and not motivated by malice or any other reason and that it was not for the defence to identify any motive for making a false allegation – where the primary judge did not direct the jury that any failure or inability on the part of the accused to prove a motive to lie did not establish that such motive did not exist; if such a motive existed, the accused may not know of it; there could be many reasons why a person may make, or join in the making of, false complaints; and if the jury was not persuaded that any motive to lie on the part of a complainant had been established, it would not necessarily mean that the complainant was truthful and it remained necessary for the jury to satisfy themselves of the complainant’s truthfulness – where defence counsel, at the conclusion of the judge’s directions to the jury, asked for time to formulate a request for re-direction concerning the prosecutor’s statements about motive – where the primary judge stated that he did not intend to give further directions – whether there was a substantial miscarriage of justice

Criminal Code (Qld), s 668E(1), s 668E(1A)

Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, followed
R v Cupid [2004] VSCA 183, cited
R v Geary [2003] 1 Qd R 64, [2002] QCA 33, cited
R v Kostaras (2002) 133 A Crim R 399; [2002] SASC…

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R v Coss [2016] QCA 44
Case
[2016] QCA 44
Decision Date

CaseChat Overview and Summary

The appeal in the case of R v Coss involved the appellant, who was convicted of two counts of rape, challenging the trial judge's directions to the jury regarding the complainant's credibility and the lack of a motive for making false allegations. The appellant argued that the trial judge's non-direction on the issue of motive led to a substantial miscarriage of justice. The Court was tasked with determining whether the prosecutor's closing address and the judge's directions to the jury sufficiently safeguarded the appellant's rights and whether the failure to address the issue of motive constituted a miscarriage of justice.

The Court examined whether the prosecutor's rhetorical question about the complainant's motive and the jury's encouragement to view the complainant as an unreliable witness amounted to a misdirection or non-direction. The Court also considered whether the primary judge's directions to the jury adequately covered the issue of motive and the complainant's truthfulness, ensuring that the jury was aware that it was the prosecution's burden to prove the complainant's credibility beyond reasonable doubt. The Court referenced previous cases, such as Palmer and Geary, to assess whether the trial judge's directions aligned with established legal principles regarding motive and the credibility of complainants in sexual offence cases.

In its reasoning, the Court found that the prosecutor's address was consistent with the approach in Geary and did not improperly shift the burden of proof onto the appellant. The Court concluded that the judge's directions to the jury, when considered in conjunction with the prosecutor's address, sufficiently addressed the issue of motive and the complainant's credibility. The Court noted that the judge's directions adequately conveyed that it was the prosecution's responsibility to prove the complainant's truthfulness beyond reasonable doubt. The Court held that the appellant's conviction was not vitiated by any miscarriage of justice and dismissed the appeal.

ORDERS:
1. The appeal against conviction is allowed.
2. The convictions are quashed.
3. A retrial is ordered.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The convictions are quashed.

3. A retrial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent contended that when the judge’s full directions to the jury are considered together with the impugned aspects of the prosecutor’s address in context, there could be no doubt that the jury understood that it was not for the appellant to demonstrate why the complainant might lie. The prosecutor in his address always took the jury back to the complainant’s evidence and whether they were satisfied of its truthfulness beyond reasonable doubt. The prosecutor’s address was consistent with the approach taken in Geary.[12] The judge’s directions to the jury adequately dealt with the issue of the complainant’s motive to lie and met the requirements of Van der Zyden. There has been no miscarriage of justice and the appeal should be dismissed.[12]Above, [23], [24] and [29].Conclusion The appellant placed emphasis on Palmer where the accused was charged with sexual offences against a 14 year old girl. Palmer gave evidence at his trial. In cross-examination, when asked whether there was any reason why the complainant would invent the allegations against him, he was unable to suggest any reason. Brennan CJ, Gaudron and Gummow JJ stated:“…a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished…. The correct view is the absence of proof of motive is entirely neutral.”[13]Their Honours determined that, despite the clear directions of the primary judge to scrutinise the complainant’s evidence with the utmost care and to be satisfied beyond reasonable doubt that her evidence was reliable before convicting, the questioning of the appellant about the complainant’s motive may have occasioned a miscarriage of justice.[13](1998) 193 CLR 1, 9. Kirby J noted it was common ground that “the issue of a complainant’s motivation ought never to be injected gratuitously into a trial nor made the central point of argument, whether by the prosecutor or by the judge,” and that where an accused puts forward, by evidence or submission, a proposition that a crucial prosecution witness has a particular motive to lie, the judge should direct the jury that, even if they were to reject such motive, that would not mean that the witness was necessarily truthful. It was for the prosecution to prove that the witness was truthful.[14][14](1998) 193 CLR 1, 38-39. The respondent contended that the prosecutor’s address conformed with this Court’s decision in Geary. In that case the accused was convicted by a jury of four drug offences and appealed on a number of grounds, including that the prosecutor erred in inviting the jury to ask why witnesses would falsely implicate the accused, and that the trial judge failed to correct the submission. Defence counsel addressed the jury by inviting them to reject the evidence of the six indemnified witnesses; as indemnified accomplices they had powerful reasons to make up allegations against the accused; their evidence could not be accepted as reliable beyond reasonable doubt; the evidence of accomplices was frequently unreliable. The prosecutor responded in his address by asking the jury why any of those witnesses would falsely implicate the accused. As they had implicated others, they did not need to falsely implicate him. This Court distinguished Palmer which concerned sexual offences against a child. Williams JA, with whom de Jersey CJ and McPherson JA agreed, stated that an accused person’s belief as to what may be motivating the complainant would hardly be relevant to any issue at the trial. But nothing in Palmer suggested that a prosecutor could not deal with issues of credit in the closing address to the jury, including making submissions as to whether a witness had a possible motive to lie.[15] It would be absurd if defence counsel could brand prosecution witnesses as liars with the prosecutor unable to explore the issue as to what motivation those witnesses might have to lie. In rejecting those grounds of appeal, the Court stated that the prosecutor acted perfectly properly in addressing the jury as he did and there was nothing for the primary judge to correct.[16][15][2003] 1 Qd R 64, 70, [25].[16]Above, [26]-[29].

Ratio Decidendi

Legal Principle Established

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