R v Cupid
[2004] VSCA 183
•8 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 301 of 2003
| THE QUEEN |
| v. |
| ROBERT JOHN DAVID CUPID |
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JUDGES: | ORMISTON, CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 3 and 10 August 2004 | |
DATE OF JUDGMENT: | 8 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 183 | 1st Revision – 12 November 2004 |
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Criminal law – Sexual offences against a child – Complainant asking in cross-examination, “Why would I lie?” – That evidence relied on by prosecutor in final address – Whether Palmer direction [Palmer v. R. (1998) 193 C.L.R. 1] required – Whether propensity warning required in relation to applicant’s having tickled the complainant and other children – Whether permissible to ask one witness whether he or she thinks another witness is lying – Evidence of young children – Crimes Act 1958, s.400.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr S. Gillespie-Jones Mr B. Lai | Paul A. Vale & Assoc. |
ORMISTON, J.A.:
Having had the benefit of reading the judgment of Callaway, J.A. in draft form, I confess that at first I was inclined to disagree with his conclusions as to the principal ground argued and to have dismissed the application. Having written a judgment to that effect, I have now reached the conclusion, having had the benefit of reading also the judgment of Buchanan, J.A., that I was too hasty in concluding that there was no potential miscarriage of justice. I now agree in the conclusions reached by the other members of the Court, although with some reluctance, as the errors noted may well not have had the effect on the minds of the jury in the sense that authority lays down. The case involves the application of what has come to be known as the rule in Palmer v. The Queen[1] which has provided difficulties in a variety of ways since it was handed down over six years ago. After reading the transcript a number of times I was inclined to think that the application of the principles described in that case had little effect on the outcome of the present trial but, nevertheless, more careful consideration shows that one aspect raised by prosecuting counsel’s address and the judge’s failure to deal with the inference which counsel thereby left open to the jury was sufficient to lead to a possible miscarriage of justice.
[1](1998) 193 C.L.R. 1.
I should, however, state my reasons in a little more detail. The judgment of Callaway, J.A. sufficiently sets out the facts and circumstances leading to these applications. There were some further details which originally I thought would be necessary to add but, having thought about the matter further, they are merely aspects of the trial which pointed to a conclusion that the jury may not have thought much about the question “What motive would the complainant have had to lie?”. I may well have been right but my conclusion would have been largely speculation and in the end one cannot deny the possibility that that question not only may have arisen in their minds spontaneously but was, in particular, emphasised by counsel’s use of the complainant’s non-responsive answers set out in the judgment of Callaway, J.A. at para.[27] and which counsel used in the way described by his Honour in paragraph [26] of his judgment. I therefore will not proceed to set out the other incidental matters that I proposed to add.
As to the ground now raised, there seems little doubt now that the rule in Palmer applies whether or not counsel for the prosecution has directly raised the question in the course of cross-examining the accused. The rule may, I would concede, be invoked where the sole reference to a complainant’s want of motive to lie has arisen in prosecution counsel’s address, in the form of rhetorical questions or the like to that effect: see, e.g., R. v. P.L.K.[2]. Moreover it might ordinarily be said to be inappropriate for prosecuting counsel to raise such questions with the jury, howsoever the issue of motive may have arisen. It may also be said, in most cases, that the unfairness arising out of direct cross-examination as to want of motive may not be so great if the issue is raised only by counsel during addresses. One of the greatest vices of the question in cross-examination is that it unfairly asks an accused person to speculate as to the motives of a person making an accusation against the person under cross-examination. Furthermore it is irrelevant because it seeks to ask of one person, the accused, what may have been or is in the mind of another, the complainant, who has brought the charge against the accused. From time to time it has been suggested that, at least in terms of relevance, a distinction might be drawn between questions of the accused as to whether the complainant has any motive to lie and questions to the effect whether an accused “knows of any reason why the [complainant] should be hostile to him or should tell a false story about him”.[3] But, whatever be the degree of vice in such questions, the majority in Palmer said[4]: “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”.
[2][1999] 3 V.R. 567. It seems the same view has been taken in New South Wales, although before Palmer was decided: see R. v. E. (1996) 39 N.S.W.L.R. 450 and R. v. Jovanovic (1997) 42 N.S.W.L.R. 520. The matter appears to have been raised also in this State in R. v. Alexander Robert Brown [2000] VSCA 102 at [19], but, although that was the principal basis upon which an application for special leave to the High Court was sought, the High Court rejected the application but in terms wherein Kirby, J., speaking on behalf of himself and Callinan, J., observed that the principle in Palmer “applies to the prosecutor’s address to the jury. Ordinarily, the prosecutor should not ask the jury to speculate upon such motives”: see Brown v. The Queen (22 June 2001) transcript at p.4.
[3]See R. v. Leak [1969] S.A.S.R. 172 at 173, approved in the dissenting judgment of McHugh, J. in Palmer at 25-26 para.61.
[4]At 7 para.[7].
Where, however, the rhetorical question comes directly during the address from counsel for the prosecution in asking “why would the complainant lie?”, there are more limited but still apposite objections to the raising of arguments of that kind before the jury. One must be careful not to say that it is never relevant, for much of an accused’s case may be directed to showing that there is a particular motive which has driven the complainant to telling a pack of lies about the accused, so that in one way or another counsel’s arguments seeking to demolish the alleged motive may lead to an assertion, explicit or implicit, to the effect that there was no such motive for the complainant to tell lies, indeed no motive at all for the complainant to tell lies. It seems that that was the kind of dilemma faced by this Court in P.L.K. where by majority it was held that there was a miscarriage of justice arising from counsel’s arguments to the jury. I am prepared to accept that what I said in R. v. Hilsley[5] may have overstated the need for judges in these circumstances to give appropriate directions.[6] Circumstances may well vary and, whereas most cases where a question is put directly by counsel to an accused in the course of his cross-examination may require some clear direction, on the other hand, where questions of this kind are posed in the course of addresses, it may well depend upon the significance of what is said for there to be a need for the judge to give an explicit direction.
[5][1998] VSCA 143 at para.[24].
[6]Two members of the Court in P.L.K., Charles, J.A. at 574-575 and the dissenting member of the Court, Tadgell, J.A., who had given a more detailed exposition why the passage in Hilsley at para.[10] was wrong, technically did not form a majority (as the headnote suggests), as the other member of the majority in the decision, Buchanan, J.A. did not express an opinion on this particular subject.
Moreover, even if argument supporting the complainant’s credibility consists only in a rhetorical question to the jury, much of what was said in Palmer must remain apposite, for there is a real risk that juries will misunderstand the nature of the comment and will misuse it in the same way as they might use questions along those lines in cross-examination. For example, a rhetorical question certainly asks the jury to speculate and to conclude, merely because evidence is unavailable on the subject, that the complainant had no motive to put forward untruthful allegations against the accused. In that sense such a question still seeks to embark upon an irrelevant line of enquiry. Moreover, depending upon circumstances, it may serve to undermine the onus of proof by suggesting that the accused has in some way failed to put forward any convincing motive for the complainant to lie. It distracts the jury from its real task, namely to determine whether the prosecution has made out its case beyond reasonable doubt and, more particularly, whether the complainant’s evidence as to guilt (which is more often than not the only direct evidence on the issue) has been shown beyond reasonable doubt to be accurate. In some cases, indeed, the jury may even reason that, if they are satisfied that the complainant is a liar, then that will establish the simple motive of malice towards the accused. Obviously such a line of argument would come from the accused and would invite them to be satisfied that the complainant was lying, but that is of no present relevance. The issue is, of course, regardless of motive, whether the Crown has satisfied the jury that the complainant’s version is truthful, sufficiently truthful for the jury to be satisfied beyond reasonable doubt of the commission of the offences charged.
One might fairly say, therefore, that in cases where the question of motive for lying is raised by the prosecution only by way of rhetorical question in address, the Court, and thus any judge trying such a case, should incline towards the conclusion that the jury may have been misled or diverted from their true task to the extent that the kind of direction referred to in P.L.K., for example, should be given.[7]
[7]See per Charles, J.A. at 573 para.[19] referring to R. v. Costin [1998] 3 V.R. 659 at 668.
Merely because one might incline to the necessity of such a direction, however, does not mean that in every case it is necessary, notwithstanding what I said in Hilsley. One may realistically say that, notwithstanding what criminal lawyers may see as implicit in a witness’s unresponsive answer or in every throw-away argument by the prosecutor, the vice of the rhetorical question may often be largely lost upon the jury when other issues predominate. It is not like a reference to irrelevant acts of propensity where ordinarily prejudice is obvious to perceive. The question, at whatever stage of the trial it is posed, must be seen in fact to open up new and impermissible avenues of enquiry which will deflect the jury from its proper task of enquiring whether the prosecution has proved its case beyond reasonable doubt. In the present case there was no objectionable question asked of the applicant in his evidence about the complainant’s version of events.[8] Want of motive to lie came only out of the unresponsive part of an answer to applicant’s counsel’s vigorous cross-examination. It did not even arise out of questioning relating to motive. It came from an exchange late in cross-examination about precisely what the complainant had meant in misdescribing in a slight way what had occurred on the occasion of the last alleged offences. She did not even use the word “motive” but, after a long and often repetitive cross-examination, she had simply expostulated as to why she would tell the police something that had not happened. If members of the jury had thought it referred to want of motive, then they had little time to think about it for the cross-examination continued along the same lines and was directed to the various other details of what occurred on that last occasion.
[8]There was, however, the unfortunate question about the applicant’s daughter’s motive to lie. It may well have raised a question in the minds of the jury as to why any of the prosecution witnesses would lie, as was contended under ground 4.
When counsel for the prosecution did raise it again, it was raised in the very same context, namely when counsel were seeking to explain how witnesses sometimes forget precise details although the jury might be satisfied overall as to the allegations.[9] The prosecutor, to my way of thinking, was probably seeking to emphasise the complainant’s irritation at being taxed with small detail and to point out her general reaction to the allegation that she was lying. Nevertheless the use of it by the prosecutor was undesirable and should not have occurred. Although it did not come at the end of the prosecutor’s address and he had in fact then turned to the other witnesses before reaching the end of his address, his primary contention was that it was not the complainant who had lied, but the applicant who had done so in his evidence.
[9]There had been earlier a reference to the supposed criticism of use of the computer which counsel said had “come to nothing”, and there was a suggestion that she ought to have shouted out to her friend, the applicant’s daughter, if she had been attacked in the way she alleged.
Of course, counsel, by bringing up the unresponsive answer by the complainant, had created a risk that the rest of the trial might concentrate on motive and, more importantly, that the jury would see want of motive as critical to the complainant’s credibility. Counsel for the prosecution always has to anticipate arguments that may be made on behalf of the accused. There was a risk, therefore, that this throw-away response by the complainant may have loomed larger than it had up to that stage and its use may have provoked counsel for the defence to contend that the complainant had a motive for making these allegations against his client. Nevertheless, little weight was placed by counsel then appearing for the applicant on the question of a malicious motive arising out of anything which had been led in evidence. As it turned out his principal attack was made on the credit of the complainant by reference to errors and inconsistencies in recollection. Almost three-quarters of the way through his address he turned to the question of motives in these somewhat deprecating terms:
“We get to this question of motives and [the prosecutor] would have it suggested we’re trying to make a motive out of computers and other things, now we – [the applicant] has always said he doesn’t know. All he knows is he is innocent.”
The jury were then told “don’t fall into the trap of thinking he has to establish a motive or a reason”.
In truth the question of motive formed only a small aspect of this trial, so small, that, whatever may have been from time to time suggested in cross-examination of the complainant, by the time counsel came to address it it was almost entirely put to one side. In these circumstances it was unfortunate that the judge repeated the expression used by the complainant in the course of a relatively brief summary of the prosecutor’s address.
This may have been one of those cases where the absence of any exception to the charge and any objection to the prosecutor’s address simply reflected the insignificance in the mind of counsel of what now appears so important. It was not as if counsel and the judge were unaware of Palmer, although they may not have followed every nuance of its reasoning or its later application. Nobody sought to object to or raise in any way any of the brief references to the complainant’s irrelevant addition.
Nevertheless the fact remains both that the prosecutor in his address did raise the hypothetical question: “Why would the complainant lie?” and that the judge made no attempt to direct the jury as to its potential misuse. Perhaps counsel did not intend the jury to speculate on the complainant’s motives to lie or lack of them, but, if that was indeed the impression created, nothing was done to correct it. The reasoning behind Palmer is based on a fear that juries will wrongly speculate on unproven motives and, if invited to do so, will use lack of proof of motive as in some ways strengthening the credibility of the main prosecution witness. Such questions, it has been held, invite the members of the jury to reverse the onus of proof by seizing on the absence of a particular kind of evidence rather than concentrating on whether the evidence in fact given has established the Crown case beyond reasonable doubt. It is often said that this kind of question is a natural enough one for the jury to pose to themselves, and that, in some judicial minds, was thought best dealt with by specific directions against speculation of that kind and the like. Palmer takes a stricter stance and seeks to exclude the hypothetical question altogether. If it turns out that such a question is introduced, whether by a side wind or not, the risk is now to be treated as one which cannot easily be corrected.
That is what occurred here, regrettably. The Court cannot be sure that the repetition by counsel of the complainant’s cri de coeur was not misunderstood as an argument of the prosecutor asking, rhetorically, what motive did the complainant have to lie. Having sown the seed of potential misuse, it was up to counsel to correct it or for the judge to direct the jury appropriately and firmly. Neither occurred. One cannot be sure that one or more members of the jury did not use the argument in the forbidden manner suggested by counsel for the applicant, so, although I originally thought the risk very small, the possibility cannot fairly be excluded that members of the jury thereafter posed for themselves the undesirable question or that they speculated along lines which Palmer would condemn. That such a possibility existed has forced me reluctantly to conclude that there may well have been a miscarriage of justice such as to require a new trial to be directed.
It is perhaps unnecessary to say more about the other grounds argued, but some issues may well arise again when a new trial is held. I shall therefore deal with the relevant grounds as briefly as is practicable. The first two grounds in the notice of application asserted that the learned judge had erred in failing to give a propensity direction (ground 1), which seemingly arose out of the wrongful admission (ground 2) of evidence that the applicant had previously been warned not to tickle children. The evidence showed over many years that the applicant had tickled his daughter as a father might tickle a child and in no way were circumstances alleged in which that tickling took on an indecent aspect. To my recollection there had been no tickling of her which could arguably have formed the basis of a charge of indecent assault or the like. In the case of the tickling of the complainant there seems again to have been no dispute that over the time that the complainant had known the applicant, she had been tickled by him in the same way as her friend his daughter had been tickled. Again, up to the events in respect of which complaint was made, there seems to have been no suggestion that the tickling had any indecent aspect to it. In fact even on the relevant occasions it seems that unobjectionable tickling had taken place but it was alleged that it had, in effect, graduated to the five various assaults made on the complainant. The only other aspect to the tickling was that the applicant’s wife had warned him, not because of any indecent dealing with any of the girls in the past, but because, at the age of 11, it would perhaps be seen to be inappropriate that he was tickling someone else’s child, although his wife did not suggest he should cease tickling his own daughter. That seems to me to have been a common sense caution but not one which was predicated on any prior indecent conduct. The prosecution placed some reliance on it in a way which suggested that he had some indecent desire to touch the complainant but, short of arguing backwards from the various events, there seems nothing to support that idea, unless it be the wife’s warning. Whether he continued to tickle the complainant was a matter in hot dispute at the trial as affecting her credibility, and indeed his version of events was in part refuted by his daughter’s own small item of evidence on this subject. However, the worst that could be said against the applicant on this score was that he was using as a means or excuse to handle the complainant his previously unobjected to tickling of her. Thus he may have found it easier to move to some indecent attack, as alleged by the complainant, from the continuation of his apparently affectionate tickling in the past and to using it as a means to an end for the offences charged.
That does not mean, however, that these were uncharged acts or that it was evidence of propensity or that there was evidence of a kind which ought to have been excluded. One may accept the wide definition of “propensity” but there was simply nothing improper in what was shown to have occurred in the past.
The matters raised by Callaway, J.A. in his judgment at paragraph [34] also provide a basis for admitting the evidence. Even if otherwise inadmissible, the tickling was in part relationship evidence and in part, so far as the individual assaults were concerned, it was intimately bound up with the allegations which formed the basis of each charge. Likewise, as Callaway, J.A. perceptively has observed, the evidence might assist the applicant in his defence of the case for a number of reasons. In short it was not discreditable conduct of the kind requiring a direction.
The final principal ground argued was that there was a miscarriage of justice resulting from the admission of evidence from both the daughter and son of the applicant because of a failure to explain the effect of s.400 of the Crimes Act 1958 and for other related reasons. I do not believe that any miscarriage of justice occurred in the circumstances but I am certainly of the opinion that the relevant questioning was
not carried out in the most desirable way and that it would have been preferable for a greater explanation to have been made to those two youthful witnesses. Otherwise I am in broad agreement with what Callaway, J.A. says at paragraph [37].
I therefore agree with the orders proposed by Callaway, J.A.
CALLAWAY, J.A.:
The applicant, who is now aged 43, was presented in the County Court at Morwell on four counts of committing an indecent act with a child under the age of 16 (counts 1, 2, 4 and 5) and one count of taking part in an act of sexual penetration with a child under the age of 16 (count 3). The maximum custodial penalty for both those offences is ten years' imprisonment. After a trial occupying four days, the jury returned a verdict of guilty on all five counts. The learned trial judge heard a plea for leniency on behalf of the applicant and, on 30th September 2002, sentenced him to 18 months' imprisonment on each of counts 1, 2 and 5, four years' imprisonment on count 3 and two years' imprisonment on count 4. His Honour directed that 12 months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 3 and declared that the total effective sentence was five years' imprisonment.[10] A non-parole period of three years was fixed. The applicant seeks leave to appeal against conviction and, pursuant to leave granted by a single judge of appeal on 4th April 2003, appeals against his sentence.
[10]The judge’s attention was not drawn to the fact that the applicant stood to be sentenced as a serious sexual offender on counts 3, 4 and 5. To achieve his Honour’s purpose, a direction should have been given that the sentences imposed on counts 4 and 5 were to be served concurrently with the sentence imposed on count 3: see s.6E of the Sentencing Act 1991.
Ground 3 of the application for leave to appeal against conviction is that the judge “erred in failing to give a Palmer direction”.[11] It is unnecessary to set out the other grounds of appeal in all their detail. I shall refer later to some issues they raise that may have a bearing on the new trial which I consider the Court is bound to direct. It will be unnecessary to say anything about the appeal against sentence.
[11]The reference is to Palmer v. R. (1998) 193 C.L.R. 1.
The applicant and his wife had two children, Jessica and Kenny, who were aged 11 and 9 at the time of the alleged offences. The complainant was a friend of Jessica and was the same age. Her evidence on count 1 was as follows. In November 2000 she called at the applicant’s home while Jessica was out. The applicant said that Jessica would be back in five or ten minutes. While they sat together on a couch, he started tickling the complainant. He touched her on her sides and on her stomach and started trying to lift up her top. He repeatedly said, “Just give me a look.” The complainant kept holding her top down and eventually went into Jessica’s bedroom and waited there until Jessica arrived a few minutes later. In her VATE interview, but not in her evidence at the trial, she also said that the applicant touched her breasts. In cross-examination she said that she had forgotten to say that when she was giving her evidence but that whatever she had told the police was true.
The offences the subject of counts 2, 3, 4 and 5 allegedly occurred in late December 2000 after the complainant had spent the night at the applicant’s home and prior to her mother picking her up in the afternoon. The applicant was playing with his children and the complainant. He would carry a child on his shoulders from the loungeroom into his bedroom and drop the child on to his bed before carrying the child back to the loungeroom. The complainant’s evidence was that the applicant told Jessica and Kenny to stay in the loungeroom when he took the complainant on his shoulders into his bedroom. After he dropped her on to the bed, he held her down and inserted his hands down her shorts and in between her legs prior to inserting his finger into her vagina. He then started feeling and squeezing the complainant’s breasts from outside her clothing. She tried to pull or push the applicant’s hands away from her, but he sat her on his knee and put her hand on his groin. She felt the applicant’s erect penis through his clothing. He then touched her on the breasts.
Evidence was given at the trial by the complainant, her mother, both the applicant’s children, the detective who interviewed the applicant, the applicant and the doctor whom the complainant’s mother had consulted on the evening of the alleged incidents in December and the next day. The applicant denied that he had engaged in any sexual impropriety with the complainant.
In the course of his cross-examination of the complainant, counsel for the applicant elicited that his client had found out that the complainant and Jessica had visited a pornographic internet site. The applicant had told them that that was inappropriate and that, if it happened again, they would not be allowed to use the computer, but the complainant did not think that he had told her parents. The prosecutor understood that defence counsel was suggesting that the complainant’s motive to accuse the applicant was a grievance arising from the computer incident. The questions in cross-examination had been permitted, over objection, on the basis that they went to motive, although that was not in fact put to the complainant.
If there was such a suggestion, it was appropriately and fairly dealt with by the prosecutor in his final address. He concluded on this topic by saying:
“It doesn’t mean, of course, if you reject the computer scenario that my learned friend put up, that, well, that therefore means that Mr Cupid is guilty. I’m not saying that to you. I’m just putting to you, this is a matter the defence have raised and I put to you that, when you analyse it, it comes to nothing.” (Emphasis added.)
Defence counsel said, in effect, that the computer scenario was not important. His client did not know why the complainant had accused him and the jury should not fall into the trap of thinking that he had to establish a motive for her doing so. The judge was not asked to give a direction to reinforce what the prosecutor had said in the italicised part of the passage that I have just set out. I would not uphold ground 3 if the matter rested there.
Of greater concern, in the context of this trial, was the way in which the prosecutor dealt with the complainant’s evidence in his final address. He concluded by saying:
“It was suggested to her that she was lying about all this, and [the complainant] said, ‘Why would I tell the police it happened if it didn’t happen? I wouldn’t want to get him into trouble for nothing.’ You saw her say that. You might have thought when she said that she was an honest witness, and you may think that was her protesting, as well as she could, and saying, ‘Look, I’m not lying about all this. This happened. I’m telling the truth.’” (Emphasis added.)
That compressed the complainant’s evidence, with a tendency to emphasize her having asked, in effect, “Why would I lie?” Her evidence had been as follows:
“Again, can I suggest to you that one reason for the confusion is that none of this happened?---It did happen. Why would I tell the police something that didn’t happen? I wouldn’t want to get into trouble.
I put to you that if it happened you wouldn’t be as confused as you are about these things, when they happened, what actually happened?---But I know it happened, and I wouldn’t want to get him into trouble for something he didn’t do. And I know he did do it.” (Emphasis added.)
No objection was taken to those answers, for example on the ground that they were in part non-responsive[12], and no exception was taken to the charge.
[12]Compare Palmer v. R. at 36 [95]-[96].
In Palmer v. R. and other cases it has been explained that to ask an accused person why the complainant would lie, or to ask that question rhetorically of a jury, is objectionable because (a) it invites the jury to speculate, (b) it is unfair to the accused, who is not in a position to see into the mind of the complainant, (c) it may undermine the onus of proof and (d) the fact that the accused cannot suggest a motive is generally irrelevant.[13] The position can be no better if the complainant herself says, “Why would I lie?” or words to that effect in the presence of the jury and they are forcefully reminded of that in the course of the prosecutor’s final address.
[13]See, for example, Palmer v. R. passim, but especially at 7 [7]-[10], 11 [13], 36 [95]-[96], 39 [98], 40 [99] point 3 and 42 [102]-[103]; R. v. PLK [1999] 3 V.R. 567 especially at 572 [12]-[14], 573 [19], 574 [26]-[27] and 581 [59]-[62] and R. v. Heuston (2003) 140 A.Crim.R. 422 at 433 [53]-[55]. The cases show, among other things, that whether a warning is necessary or appellate intervention is warranted depends on the circumstances and that failure to take exception is relevant but not conclusive. To the overseas authorities referred to by Kirby, J. in Palmer v. R. at 36 [96] must now be added R. v. T [1998] 2 N.Z.L.R. 257 and R. v. B [2003] 1 W.L.R. 2809.
The question remains whether there was a realistic prospect of a miscarriage of justice in the circumstances of this case.[14] In my opinion, there was. The complainant’s motive to accuse the applicant had assumed more than the usual importance by the end of the trial. The cross-examination had provoked her into asking why she would have given a false account to the police. The prosecutor had understood the defence to have suggested a motive. Defence counsel had referred to motive in his final address. In summarizing counsel’s addresses the judge had included the following:
“[The prosecutor] says that she loved going to the house. Why therefore would she make a complaint that would prevent her from ever going there again? The computer matter, says [the prosecutor], is of no significance because the accused man told her he was not going to tell her parents.”
I agree with Mr McArdle that the whole of that passage related to the part of counsel’s address that dealt with the computer incident, but it had the effect of raising the question “Why would she lie?” again.
[14]Palmer v. R. at 11 [13] and 44 [104]-[106]; R. v. O’Neill (2003) 7 V.R. 408 at 412 [20]-[26], but especially at 413 [24] and 414 [26].
His Honour had earlier directed the jury that the applicant was not required to prove his innocence or anything else “and certainly not required to prove a motive for what is said to be a false charge”, but I do not consider that that was sufficient to overcome the objections summarized in [28] above. It may have been sufficient to avoid any undermining of the burden of proof, but the jury also needed to be told that they should not speculate as to the complainant’s motive, if any, to accuse the applicant and that, in addition to the law not requiring him to suggest or establish a motive, it was unfair to expect him to do so. (If that was done, it was probably unnecessary to add that his inability to do so was irrelevant.) Those directions were necessary in this case because of the forensic power of what the complainant had said in cross-examination, of which the jury were then reminded with emphasis in the prosecutor’s final address.[15] It matters not, against the background of this trial, that the prosecutor said only that her response was the kind of protest that might be expected of an honest witness and that he did not intend to invite the jury to engage in what has been held to be an impermissible chain of reasoning.
[15]In reaching that conclusion I have not overlooked the observations of Pincus, J.A. in R. v. Taylor [2000] QCA 96 and Murray, J. in Crisafio v. R. (2003) 141 A.Crim.R. 98. I say no more about those cases, because they were not the subject of submissions.
I would accordingly quash the convictions sustained by the applicant and direct a new trial to be had. I turn to issues raised by the other grounds of appeal that may impinge upon the new trial.
Evidence was received that the applicant had tickled Jessica and the complainant on many occasions. His wife had told him that they were getting to an age where people might think that that was inappropriate and the applicant said that he had followed that advice in relation to the complainant. It was for that reason he was sure that he had not tickled her in December 2000.
The following exchange took place in the course of his cross-examination:
“Your daughter says you did tickle [the complainant] on the last day she was there?---I didn’t.
Sorry?---I did not tickle [the complainant].
Well your daughter has given evidence that you did, do you think your daughter is lying about that?---No, I don’t think my daughter is lying, I think, my daughter may be mistaken, I certainly tickled my daughter on that last day.
You tickled your daughter?---I most definitely did, yes.
But your wife said not to tickle either of them?—Yes, I know and I’d already had discussions with my wife about tickling my own children.
So what, you got permission to tickle your daughter but [the complainant] was still not to be tickled?---Yes, steer clear of other kids, yes.
M’mm?---Steer clear of other kids, don’t tickle anyone else, yes.
So you’ve got a specific memory of tickling [the complainant] on that last – your daughter on that last day but not [the complainant]? ---That’s right.
Well, again I ask for your comment about the fact that your daughter says on the last day you tickled [the complainant], what do you say about that?---I say my daughter is mistaken.” (Emphasis added.)
Questions may arise at the new trial regarding the evidence about tickling. One question is whether such evidence, if otherwise admissible, should be excluded. Different considerations apply to Jessica’s and the complainant’s evidence of tickling[16] and evidence, including admissions in the record of interview, that the applicant had tickled the complainant when she was younger. The former is admissible as part of what allegedly happened. The latter may assist the defence. When the applicant was interviewed by the police, he frankly admitted that he had tickled the complainant “hundreds of days over the years” but that his wife had advised him to stop. In his final address defence counsel argued that that evinced the very opposite of a consciousness of guilt.
[16]The complainant also said that the applicant tickled her when she stayed at his house in December.
Another question that may arise is whether a propensity warning is required if any evidence of tickling is admitted. Mr Gillespie-Jones argued that the judge was obliged to warn the jury not to reason that, because the applicant had tickled the complainant or other children, he was the kind of person who was likely to have committed the offences charged. Subject to one suggestion in the prosecutor’s final address, I do not think the evidence of tickling was led or used at this trial in such a way as to require that kind of warning and defence counsel may have had a good reason for not wanting the thought of propensity to be planted in the jury’s minds. The qualification is that, in his final address, the prosecutor did at one point refer to the evidence that the applicant was “still tickling” the complainant and asked rhetorical questions suggestive of guilty passion. Tickling young children is not, in itself, discreditable conduct. It depends on the circumstances. Whether it requires a warning depends on the way in which the evidence is used.
Something should also be said about the italicized passages in the exchange set out in [33] above, especially the first of those passages. The applicant should not have been asked whether he thought that his daughter was lying. That went beyond putting the substance of her evidence to him or reminding him of what she had said and asking him whether he adhered to his testimony. It was not justified by the course of the evidence or the facts of the case. It is unnecessary, for the purposes of
the present case, to examine any further the issues raised by R. v. Foley[17] or whether the statement of Lord Esher, M.R. in North Australian Territory Co. v. Goldsborough Mort & Co.[18] is too wide.
[17][2000] 1 Qd R. 290 at 296-297. See also R. v. Perussich [2001] QCA 557; R. v. H [2001] QCA 563; R. v. Dunster [2002] QCA 475; Palmer v. R. at 9 [10] and R. v. Leak [1969] S.A.S.R. 172 at 173-174, referred to by McHugh, J. in Palmer v. R. at 25 [61].
[18][1893] 2 Ch. 381 at 385-386.
Another ground of appeal related to s.400 of the Crimes Act 1958 in relation to the evidence of Jessica and Kenny. If the Crown seeks to lead their evidence at the new trial and it is not excluded on other grounds, the judge should take care that each child understands his or her right to apply for an exemption pursuant to that section and the basis on which such an application may be made. That is not to say that complicated language should be used or that the judge erred in the present case. It would be advantageous, if a lawyer or trained welfare officer is available, for the position to be explained to the child before he or she gives evidence in the absence of the jury.
BUCHANAN, J.A.:
I have had the advantage of reading the draft reasons prepared by Callaway, J.A. I agree with his Honour that the failure of the trial judge to direct the jury that they were not to speculate as to the complainant’s motive to accuse the applicant and that it was unfair to expect the applicant to establish such a motive constituted a miscarriage of justice requiring a re-trial.
While posing the question “Why would the complainant lie?” in cross-examination of the accused is unfair in that it invites him to speculate as to the complainant’s motive, in my view raising the question in other contexts than cross-examination of the accused is also unfair if the effect of the question is to invite the jury itself to speculate as to the complainant’s motive and, in the absence of any cogent motive advanced by the defence, to conclude on that ground that the complainant is truthful.
The question may in fact weigh with the jury without being articulated in the course of a trial.[19] If, however, it has become explicit and has assumed such significance that there is a real danger it may cause the jury to reason that, in the absence of the accused establishing a motive to lie, the complainant is to be treated as a truthful witness, that effect should be countered by the trial judge. Otherwise the case may be decided by speculation concerning unproven facts, not on the evidence led in the trial[20], and the onus of proof resting on the Crown may be reversed, or at least diminished by the suggestion that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant’s evidence. In fact the complainant’s evidence should gain no credibility from the absence of evidence of motive to lie.[21]
[19]R. v. F (1995) 83 A.Crim.R. 502 at 511-2 per Gleeson, C.J.; Palmer v. R. (1998) 193 C.L.R. 1 at 39 per Kirby, J.
[20]R. v. E (1996) 39 N.S.W.L.R. 450 at 464 per Sperling, J.
[21]Palmer v. R. at 9 per Brennan, C.J., Gaudron and Gummow, JJ.
If the complainant’s rhetorical question had not been taken up by the prosecutor in his address to the jury, the fact that the complainant articulated the question may not have had any bearing on the jury’s consideration of the guilt or innocence of the applicant. The matter, however, did not rest with the complainant’s evidence. The prosecutor repeated the question, as did the trial judge in the course of his charge to the jury. In the context of a trial which was essentially dependent upon credibility and where a particular motive on the part of the complainant to lie had been advanced and debated[22], I consider that those circumstances called for a firm and clear direction from the trial judge to prevent a miscarriage of justice. Even if the question of motive occupied little time during the trial, it may well have had striking force in the minds of the jury.
[22]It appears that the trial judge did not direct the jury that, even if they were to reject the motive to lie constituted by a grievance arising from the computer incident, that would not mean that the complainant was necessarily telling the truth. See Palmer v. R. at 38-9 per Kirby, J.
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