R v Kostaras

R v KOSTARAS
[2002] SASC 326
Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ

DOYLE CJ: The appellant was convicted on the verdict of a jury of four counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935.
Leave to appeal against conviction on two grounds was granted on 12 July 2002. Those grounds appear as grounds 1 and 2 of the Amended Grounds of Appeal (“the Amended Grounds”). Leave to appeal against conviction on ground 6 of the Amended Grounds was granted by consent at the hearing of the appeal. The appellant seeks leave to amend his grounds of appeal to add grounds 3, 4, 5, and 7. The application for leave to amend the grounds of appeal and the appeal were heard together.
The Offences
The four counts of unlawful sexual intercourse relate to four separate occasions on which the appellant allegedly performed an act of fellatio on the complainant. The complainant was under the age of 17 years at the time of the offences. The offences occurred between 1 January 1987 and 31 December 1987.
The appellant was a secondary school teacher, and at the time of the offences the complainant was one of the appellant’s students. In 1987, the complainant was in Year 11 and was 15 years of age. The appellant showed considerable interest in the complainant and in what he was doing at school. The two became “good friends” in the complainant’s words. They spent time together after school hours. The complainant often went to the appellant’s home and to other places with the appellant. On occasions, the complainant would travel with the appellant in the appellant’s car, and sometimes the complainant would drive the car. The evidence of the complainant was that the appellant gave him alcohol on some occasions when he was at the appellant’s home.
The first count related to an incident on an evening about mid-year in 1987 at the appellant’s home. The complainant had been drinking beer given to him by the appellant and was intoxicated. The appellant tried to kiss the complainant and the complainant resisted. The complainant ended up in the appellant’s bedroom, where the appellant removed the complainant’s trousers and underwear and performed an act of fellatio upon him.
The evidence of the complainant was that there were numerous other occasions during 1987 on which the appellant performed acts of fellatio upon him, of which the incidents the subject of the other three counts were examples remembered by the complainant by reference to other events. I will refer to these incidents on occasions as “the uncharged acts”.
Count 2 related to an incident at the premises of a business in which the appellant had an interest. Count 3 related to an incident at another house, and count 4 related to another incident at the appellant’s home. The evidence of the complainant was that the acts of fellatio were often accompanied by the complainant masturbating the appellant or the appellant masturbating himself. There were one or two other occasions, on the complainant’s evidence, on which the appellant fondled the complainant’s genitals, but those incidents also were not the subject of any charges.
In his sentencing remarks, the trial Judge described the charged and uncharged acts collectively as “a course of conduct” by the appellant upon the complainant. The complainant, because of his age at the time of the offences, could not lawfully consent to the sexual acts performed upon him by the appellant.
The sexual contact between the appellant and the complainant ceased in the latter part of 1987. The offences came to the attention of police in August 2000.
Evidence of Witnesses
The Crown called six witnesses in support of the complaint. Proposed grounds 4 and 5 of the Amended Grounds complain about the Judge’s direction, or non-direction, to the jury in relation to the evidence of five of the witnesses.
M, the complainant’s brother, gave evidence that in August or September 1987 he had gone to the appellant’s home with the complainant and two friends. The appellant gave them vodka while they were there. M also said he had seen the complainant driving the appellant’s car.
The complainant’s mother gave evidence that the appellant had brought her son home in his car on several occasions. She had collected her son from the appellant’s home and from his business premises on occasions.
P, a friend of the complainant, gave evidence that in 1987 he rode in the appellant’s car with the appellant and the complainant. The complainant was driving. They went to the appellant’s home, and the appellant gave them Tequila to drink.
The evidence of C, P’s brother and another friend of the complainant, supported the complainant’s evidence that the four boys had visited the appellant’s home and that the appellant had given them alcohol to drink.
J gave evidence that he was driven by the complainant in the appellant’s car on two occasions. The appellant was not with them on either occasion.
Ms T gave evidence about an incident at the premises of the business in which the appellant had an interest. Ms T and the appellant were the directors of and shareholders in the company that conducted the business. The incident occurred on a night in mid-1987. Ms T arrived at the premises at about 7.30 pm or 8 pm and turned on the lights. The appellant appeared, looking flustered. He had come from a back room. He told her he was showing someone through the building. She did not see the complainant on the premises. On a number of occasions, including on the day after this incident, the appellant left cheques for Ms T to sign for payment to one of his students for cleaning up after hours. Ms T also gave evidence that the appellant had told her he was gay.
Evidence of the Appellant
The appellant gave evidence that the complainant displayed interest in him and that the complainant would often approach the appellant and wait for him outside class at school. The appellant said the complainant initiated out-of-school contact by asking the appellant to take him to the gym and to drive him home, by following the appellant while the appellant was running, by visiting the appellant’s home uninvited and so on. In other words, on the appellant’s evidence it was the complainant who wanted contact and initiated it.
The appellant acknowledged that he had spent time outside school with the complainant. He took the complainant to his home, arranged work experience for him at his business, took him to a fashion award dinner and to meet his mother, and on a couple of occasions picked the complainant up from the Oaks Tavern, where the complainant had casual employment, and drove him home. This was despite the appellant’s assertions that he was “concerned” about the interest that the complainant showed in him, and that he was at times “unimpressed” when the complainant visited him uninvited. He did not think he was encouraging the complainant or that he was acting inappropriately in his out-of-school contact with him. The appellant “accepted” rather than “encouraged” the complainant’s interest in him and the out-of-school contact.
The appellant denied that he had any sexual contact with the complainant and denied that he encouraged the relationship out of a sexual motive towards the complainant.
In answer to a question put to him in examination-in-chief, the appellant said that there had never been any complaints about him concerning any of his students until 2000, at which time the police approached him about the complainant. The appellant said he had not been to court before and had no prior convictions. Counsel for the appellant suggested that the appellant was of “good reputation” and the appellant said he was.
In cross-examination the appellant was asked about a complaint that had been made about him by two of his students while he was teaching at the South Australian Remand and Assessment Centre (“SARAC”). The appellant denied that the complaint carried any suggestion of sexual impropriety. The appellant was shown two letters (exhibits P8 and P9) written to him by the SARAC principal which included references to a concern by one of the students who had complained that the appellant’s interest in the student was sexual. The letters discussed the complaint and discussed appropriate standards of behaviour on the part of teachers towards students. The author of the letters said that her conclusion was that the appellant was merely offering “help and friendship”, but that the appellant needed to recognise that some of his methods were inappropriate. The appellant had endorsed the letters to the effect that he had read and understood their contents. In cross-examination he accepted the contents of the letters but could not recall details of the complaint. He recalled that subsequently he had requested a transfer from SARAC.
The appellant was also asked in cross-examination about a prior conviction for a traffic offence of failing to provide his name and address when requested. The appellant could not recall the incident. The conviction was never proved or formally admitted at the trial.
Proposed ground 7 of the Amended Grounds complains about the cross-examination of the appellant on the topics of the SARAC complaint and the prior conviction.
Grounds of Appeal
Ground 1 complains that the trial miscarried. This ground refers to submissions by the Prosecutor in her closing address. It is argued that they were to the effect of “why would the complainant or witnesses for the prosecution lie?”. The complaint is that the Judge failed properly to direct the jury about motive and onus of proof, and in relation to the submissions.
Ground 2 complains that the Judge failed to direct the jury about the permissible use of the evidence of the uncharged acts.
The complaint in proposed ground 3 is that the Judge failed adequately to direct the jury about the significance of the complainant’s failure to make a recent complaint, in particular about how that might affect the complainant’s credibility.
Proposed ground 4 complains that the Judge failed to direct the jury about the permissible use and impermissible use of the evidence of the witnesses M, P, C and J. Proposed ground 5 makes the same complaint about the use of the evidence of Ms T.
Ground 6 concerns propensity reasoning. The complaint is that the Judge failed to direct the jury that in their consideration of each count they could consider only the evidence admissible upon that count, and that the Judge failed to direct the jury against employing impermissible propensity reasoning in considering the counts.
Proposed ground 7 complains that the trial miscarried because of the cross-examination concerning the SARAC complaint and the appellant’s prior conviction. The complaint is that the cross-examination on those topics should not have been permitted. No application to cross-examine was made pursuant to s 18(1)VI(b) of the Evidence Act 1929 (SA).
Ground 2 and Ground 6
The prosecution case was that the appellant befriended the complainant and had a lot of contact with him outside school hours. That contact involved friendship from an older and admired teacher, and treatment that would have made the complainant think that he stood in a special relationship with the appellant. As I have mentioned, the appellant gave the complainant lifts in the appellant’s car, took the complainant on outings, gave him casual work at the business in which the appellant had an interest, and generally spent a lot of time with the complainant. The complainant described the appellant in evidence as having become his “best friend”. The contact and the friendship, and privileges like allowing the complainant to drive the appellant’s car, and the provision of alcohol by the appellant to the complainant, provided a significant background to the alleged offences.
The evidence, if accepted, was capable of supporting a finding that the appellant had set out to win the complainant’s friendship and trust, and that the appellant would have had considerable influence over the complainant.
I have already summarised the appellant’s evidence. He admitted that there was a lot of contact between him and the complainant, but said that it was the complainant who initiated this contact. He did not consider the amount of contact, or the form it took, to be inappropriate. He denied allowing the complainant to drive his car, and denied providing him with alcohol.
The complainant also gave fairly brief evidence in general terms of the uncharged acts. These all occurred during the year in which the alleged offences occurred. He said that the acts of fellatio, masturbating and genital fondling occurred on many occasions at the appellant’s home, at the appellant’s business premises and in the appellant’s car.
In opening the case to the jury, the Prosecutor told the jury that they would hear evidence about the uncharged acts, that these matters were not the subject of charges, but were put before the jury
“... so that you can hear the allegations of [the complainant] in their proper context, so that you are able to assess the evidence of [the complainant] as a whole.”
Neither counsel asked the Judge to direct the jury about the use of the evidence of uncharged acts. The Judge touched on the matter very briefly after counsel raised with him some matters relevant to the summing up, which had not yet begun. The Judge raised the question of a “propensity warning” but said that he thought this was not called for because none of the uncharged acts occurred prior to the date of the first offence. Neither counsel submitted otherwise.
The Judge gave the jury no directions at all about the use of the evidence of uncharged acts.
He did give the jury a direction that they should give separate consideration to each of the charges. He repeated that direction towards the end of the summing up. He did not direct the jury that they must confine their attention to the evidence admissible on each count. In this case, such a direction was not essential, because substantially all of the evidence was admissible on each count.
The Judge made occasional passing references to the evidence by the complainant of the uncharged acts, when summarising the evidence for the jury. He did not give the evidence of uncharged acts undue weight or emphasis. He told the jury that the appellant had denied the acts charged, and had denied any sexual relationship at all with the complainant.
There was no suggestion by counsel in their addresses that the evidence of uncharged acts might be used to conclude that the appellant had shown a propensity to commit sexual offences of the type described by the complainant, or to conclude that it was likely that the appellant was sexually attracted to the complainant, and on either basis likely to commit sexual offences of the type alleged.
The only reference to propensity reasoning came when the Judge dealt with what I have called the SARAC complaint. When dealing with the complaint about the appellant the Judge said:
“[Y]ou must not, under any circumstances, use that complaint as being in any way indicating any propensity on the part of the accused in relation to children.”
The Judge told the jury that they could use the evidence of the letter only in relation to the appellant’s credibility.
The evidence from the complainant of uncharged acts was admissible. The evidence provided a setting in which the offences charged allegedly occurred. The evidence helped explain why the complainant might be unclear about the precise dates and details of the offences charged. The evidence would help explain the complainant’s acquiescence. Without knowing of the allegation of repeated sexual acts, the jury might find it difficult to understand and to accept evidence of four apparently isolated acts occurring during the course of the year. Although the evidence about how the appellant gained the complainant’s trust and friendship would help explain the complainant’s evidence, the evidence of the uncharged acts was important in this respect.
I consider that the evidence of uncharged acts was admissible even if it did not meet the criterion, identified in Pfennig v The Queen (1995) 182 CLR 461 at 475, for the admissibility of evidence tending to show that an accused has been guilty of criminal acts other than those the subject of charges before the court, for the purpose of supporting a conclusion that the accused is a person likely from his criminal conduct or character to have committed the offences for which he is charged. In the present case the evidence was not put forward to support a conclusion that the appellant was a person likely from his criminal conduct or character to have committed the offences charged. I considered this issue at some length in R v Nieterink [1999] SASC 560; (1999) 76 SASR 56. I will not repeat all of what I said there. For present purposes, it suffices to set out one passage from my reasons. I said at [48] and at [49]:
“ Be that as it may, for present purposes the question is whether evidence of uncharged criminal acts is admissible even though it does not meet the test stated in Pfennig, if the evidence is admitted and used to put in context (I will continue to refer to context for convenience, although I repeat that in a direction to the jury it is necessary to be more specific) the evidence of the offences charged and is not used to support a line of reasoning that involves inferring from the fact and nature of the uncharged acts that the accused is likely to be the offender (as in an identity case) or committed the crime in question (as in a similar fact case). If such evidence is admissible, the question then is whether the evidence was admissible in the present case on that basis.
I am satisfied that such evidence is admissible. That is, that there is a category of evidence disclosing other criminal conduct by the accused that is admissible without satisfying the test stated in Pfennig. I am satisfied that the examples that I have given are proper applications of the law of evidence. I now explain why I have reached that conclusion.”
I emphasise that in the present case there was no suggestion by counsel or by the trial judge that the evidence of uncharged acts might be used to reason that the appellant was a person likely, by reason of criminal conduct or character, to have committed the offences charged. That is, there was no suggestion of what is often called, in a shorthand way, propensity reasoning.
In Nieterink I considered a number of decisions of the High Court, up to and including Gipp v The Queen (1998) 194 CLR 106.
Subsequently, some members of the Court have referred to this topic in KRM v The Queen [2001] HCA 11; (2001) 75 ALJR 550. The issue did not arise directly there, but was relevant to the issue before the Court, which concerned the directions to be given when a person is charged with an offence of maintaining a sexual relationship with a child, a statutory offence of relatively recent origin.
As I understand the reasons of McHugh J, in KRM he took the same approach as I took in Nieterink. He considered at some length the same cases, and his conclusion sufficiently appears from his reasoning at [31]:
“By reason of the divided reasoning of the majority in Gipp, it cannot yet be said that evidence of uncharged acts of sexual conduct is no longer admissible to prove the relationship between the parties. Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it.” [Citation omitted.]

Gummow and Callinan JJ did not find it necessary to deal with the matter. Kirby J recognised that conflicting views had been expressed in the cases on the point, and said at [104]:
“Before the enactment of the relationship offence, it was possible, in some circumstances, for the prosecution to adduce evidence as to a relationship between the accused and the complainant. However, because it was obvious that such evidence could be highly prejudicial to the accused, it was usually necessary, in such a case, for such evidence to be admissible, that it should be relevant to an issue apart from that of the propensity of the accused to commit offences of that kind. Commonly, such evidence had to satisfy the test established for the admission of ‘similar fact’ evidence. I will resist the temptation to respond to McHugh J’s discussion of the decision in Gipp v The Queen and specifically of my own reasoning in that case. That controversy can safely await an appeal in which its resolution is essential. It is not essential here.” [Citations omitted.]
Hayne J agreed in substance with McHugh J. He said at [134]:
“Evidence of uncharged acts, in cases about sexual offences, does present some particular difficulties. Often enough, if evidence of uncharged acts were not admitted, each of the several transactions constituting the charged acts could only be presented as an unreal and not very intelligible event. In particular, knowing that a complainant alleged that a particular act occurred as one in an otherwise undifferentiated course of offending by an accused may throw an altogether different light upon what otherwise may seem to be an inexplicable course of behaviour by the complainant in submitting, without protest, to what is alleged to have occurred. I therefore agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning.”
In adhering to the view that I expressed in Nieterink, I am following the approach that has been taken on a number of occasions by the Full Court in this State.
If the evidence of uncharged acts were admissible only if it satisfied the criterion identified in Pfennig for admissibility, I would nevertheless conclude that the evidence is admissible. That criterion can be expressed in a number of different ways, but for present purposes it is sufficient to say that the relevant criterion is whether there is a rational view of the evidence consistent with the innocence of the accused.
If the evidence of uncharged acts is accepted, it would provide very powerful evidence of a sexual attraction on the part of the appellant towards the complainant, and of a practice of engaging in particular sexual acts at particular locations when they were alone. If used to support an argument based on propensity reasoning, the conclusion of guilt would be almost irresistible. There is one qualification to be made. The general evidence given by the complainant of uncharged acts is not of much assistance in deciding whether the four particular incidents the subject of the charges before the court were adequately identified and proved. But that will normally be so in a case, like the present, in which there is evidence of a pattern of behaviour of which the charges are instances, usually differentiated from the general pattern only by their link with some other incident which enables them to be singled out in one way or another.
There remains the question of the directions that the Judge should have given the jury.
The Judge should have directed the jury not to act on the evidence of the uncharged acts unless satisfied of its truth. As I said in Nieterink at [83], it may be that these acts did not have to be proved beyond reasonable doubt. They would have to be proved beyond reasonable doubt if they were to be used as proof of a sexual attraction on the part of the appellant, or as proof of a pattern of conduct from which the commission of the crimes charged could be inferred. But, as I said in Nieterink, to avoid confusing the jury with a reference to different standards of proof, they should simply have been told not to act upon the evidence unless satisfied of its truth. That is the safer course.
The jury should have been told how they could use the evidence: Nieterink at [84]. They should have been told this briefly, but with some particularity. I have outlined above the manner in which the evidence could properly be used.
It is not sufficient to tell the jury simply that the evidence is part of the context, or part of the background. Such general expressions are ambiguous, because they could be taken as a reference to what I have called propensity reasoning. Judges should recognise that they are treading a difficult line here. By directing the jury clearly and with some particularity about how the evidence can be used, the risk of it being misused will be minimised.
The need for appropriate directions to guide the jury, and the need to identify the appropriate and limited use that can be made of the evidence, is referred to in each of the passages that I have cited from KRM. The importance of careful directions was also emphasised by the members of the High Court in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 at [10] Gaudron J; at [77] McHugh and Hayne JJ (dissenting); at [140] and at [142] Kirby J; at [174] Callinan J. The point has been made on a number of occasions, that if the evidence is admitted for a reason other than reliance on propensity, but in fact reveals a criminal or wrongful propensity on the part of the accused, there is a particular need for care. That is the case here.
The Judge did not direct the jury that they should act on the evidence of uncharged acts only if satisfied of its truth. But it may be that the jury would have understood this to be the case in any event.
The Judge did not direct the jury at all about how they could use the evidence. Had he done so, it would not have been necessary to direct the jury not to use the evidence to support propensity reasoning. I do not consider that such a direction is always essential. There can be a danger in raising and then negativing something that has been suggested by no-one during the trial. But the need for such direction should be considered when evidence is used other than for a propensity purpose, but reveals the character or conduct that might support propensity reasoning. Usually, in such a case, as long as the directions about how the evidence can be used are clear enough and firm enough, that will suffice.
In the present case the lack of any direction about the appropriate use of the evidence of uncharged acts gives rise to an unacceptable risk of a miscarriage of justice. Without any guidance on how the evidence could properly be used, there is a risk that the jury used it in an inappropriate and unfair way.
The evidence of uncharged acts was given by the complainant in very general terms. It was denied by the appellant in equally brief and general terms. The appellant could hardly do anything else.
The jury might have thought that the approach taken to the evidence of uncharged acts meant that the evidence could be treated as not really contested. They might have thought from the brief and general way in which it was dealt with, that there was some sort of tacit admission of wrongdoing on other occasions, the real issue being whether the particular counts charged were proved and, because the jury were not told how they could use the evidence, there is a risk that they used it to support propensity reasoning.
I recognise the force of the submissions by Mr Brebner, counsel for the Director on appeal. He submitted that the evidence of the complainant stood or fell as a whole. The jury would not have accepted one part, but rejected another part and in particular the evidence of uncharged acts. He also submitted that it would have been self-evident to the jury that the evidence of uncharged acts could only serve the purposes identified by me as their proper use. He emphasised that at no stage was there ever a suggestion that the evidence could be used in any other way.
But, in my opinion, the appellant is entitled to a trial in which the jury are clearly directed about the proper use of evidence like this. It is evidence capable of misuse, and it is evidence capable of having a prejudicial impact on a jury. In this respect, the appellant did not get a fair trial.
For those reasons, the appeal should be allowed.
Proposed Grounds 4 and 5
The complaint under these grounds is that the judge failed to direct the jury as to the permissible and impermissible use of the evidence given by the complainant’s brother and friends, and the evidence given by Ms T.
I consider that there is no substance in these grounds. The evidence of the complainant’s brother and friends, if accepted, could support a conclusion that the appellant was ingratiating himself with the complainant, and behaving in a manner inappropriate for a teacher. The evidence of Ms T was capable of supporting the evidence of the complainant about the incident the subject of count 2.
The proper use of the evidence is self-evident. I can see no risk of it being misused.
I would refuse leave to amend the grounds of appeal to include grounds 4 and 5.
Proposed Ground 7
Counsel for the Director at trial cross-examined the appellant in some detail about the SARAC incident. The two letters in question had been given to the appellant in August 1990, almost three years after the events the subject of the charges, and almost 12 years before the trial.
When the cross-examiner raised the question of whether there had ever been any complaints about the appellant, he immediately volunteered that he could recall “one issue”, which happened when he worked at SARAC, and which involved a complaint by a student. The effect of the appellant’s evidence was that he had overlooked this matter. The cross-examiner returned to the topic several times, suggesting quite directly that the complaint was a matter of some significance, and could hardly have been overlooked as claimed. That approach was legitimate.
But counsel for the Director cross-examined the appellant in some detail about the text of the letters, putting much of the material to him paragraph by paragraph. This approach had the effect of emphasising references in one of the letters to a sexual harassment grievance procedure and to a sexual harassment policy. This was done although the appellant did not deny the receipt of the letters. The only issue was his reason for saying earlier in evidence that he had never been the subject of a complaint.
There was no objection to the cross-examination by counsel for the appellant.
In her address to the jury, counsel for the Director cast doubt on the appellant’s claim that he had not remembered the letters. She suggested that his claim was not believable, and that the complaint referred to in the letters was a significant matter that the appellant could hardly have forgotten.
The evidence given by the appellant of his own good character provided a basis for cross-examination of him on that topic: see s 18(1)VI(b) of the Evidence Act 1929 (SA). The South Australian provision, although similar to provisions in other states, contains no provision requiring that leave be obtained from the judge before an accused is cross-examined about character on the basis that the accused has given evidence of his own good character. But the High Court has made it clear that the legislative provision does not confer a right to cross-examine. When an accused gives evidence of his own good character, that enlivens a discretion on the part of the judge whether to allow such cross-examination, and as to the extent of the cross-examination. Application should be made to the judge for leave to cross-examine, before cross-examination is undertaken in reliance on s 18(1)VI(b): Matusevich v The Queen (1977) 137 CLR 633 at 640; Phillips v The Queen (1985) 159 CLR 45 at 51 – 52.
There are sound practical reasons for this. The making of an application to the judge for leave to cross-examine will focus the attention of all concerned on the question of whether the evidence given by the accused does warrant the exercise of the discretion (it is clear that the discretion is not to be exercised in favour of the prosecution as a matter of course) and will also naturally call for consideration of the scope of the proposed cross-examination. When the discretion arises, the issue for the court is “what fairness requires in the circumstances of the particular case”: Phillips at 58.
The rule of practice that an application for leave to cross-examine should be made to the judge was apparently overlooked by counsel and by the Judge. The result is that this Court does not have the benefit of the views of the trial Judge as to the exercise of the discretion that was enlivened. I have no doubt that the Judge would have allowed cross-examination about the letters. Not to have allowed that cross-examination would have allowed the accused a quite inappropriate advantage. But this Court does not have the benefit of the views of the trial Judge about the appropriate scope of that cross-examination.
The result is that an irregularity in the course of the trial has occurred. However, for the reasons that follow, I consider that the irregularity has not given rise to a miscarriage of justice that would require the verdict to be set aside.
The cross-examination went further than it should have. Had the matter been raised with the Judge, the Judge should have restricted the scope of the cross-examination. The author of the letters in question did no more than advise the appellant that he should make some changes in the way in which he dealt with children. In those circumstances, it was inappropriate to emphasise the nature of the allegation made (an allegation of a sexual advance) and inappropriate to refer to issues of sexual harassment. There could be no legitimate objection to cross-examination along the lines that the appellant could hardly have forgotten the receipt of a formal letter from his superior, telling him that he needed to change his approach, and signed by him to record and acknowledge the receipt of the letter. But it was unfair to emphasise the nature of the allegation apparently made.
However, in his directions to the jury, the Judge emphasised that the letter could go only to the credibility of the appellant. The Judge also emphasised to the jury that they must not
“... under any circumstances, use that complaint as being in any way indicating any propensity on the part of the accused in relation to children.”
Under the circumstances, as the letter itself makes it plain that the letter writer was satisfied there had been no wrongdoing, the direction that the Judge gave was sufficient to remove any risk of a miscarriage of justice.
Nevertheless, what happened here highlights the practical importance of the judge and counsel being alert to the need to consider whether cross-examination as to character should be allowed, and the scope of any such cross-examination.
Mrs Shaw QC, counsel for the appellant, complained also that the jury were told by the Judge that the appellant had been convicted and fined $50 for failing to give his name and address, although he told them he had never been convicted of any offence. Although the appellant was cross-examined about this, he did not admit the offence, and it was never formally proved. It seems that counsel and the Judge proceeded on the basis that the offence had been proved or admitted. This was an error. But, in the overall circumstances, it is of no great significance.
I would grant leave to appeal on ground 7, but would reject the ground of appeal.
Proposed Ground 3
I would refuse leave to amend the grounds of appeal to include ground 3.
The Judge gave the jury a careful direction about the significance of the time that had elapsed since the occurrence of the alleged offences. The Judge told the jury that the delay could affect the memory of witnesses. He emphasised that this applied to the appellant as well, and that the delay put the appellant in the difficult position of trying to recall surrounding details long after the events in question. He also told the jury that they must carefully consider whether the delay reflected adversely on the credibility of the complainant.
I consider that there is no substance at all in this ground, and for that reason leave to amend should be refused.
Ground 1
It is not permissible for a prosecutor to cross-examine an accused person in a manner that poses the question, expressly or by implication, “why would the complainant lie?”, or that invites the accused to suggest, or implies that the accused should be able to suggest, a reason why the complainant would lie.
There are a number of reasons for this. It is an invitation to the accused and to the jury to speculate. It implies that the accused’s position is weakened by an inability to identify a motive to lie. This is unfair because a lie might be told for reasons that cannot be known by anyone, let alone the accused. The suggestion that the accused should be able to identify a motive to lie tends to reverse the onus of proof. The implicit suggestion is that if the accused cannot suggest a convincing reason for the complainant to lie, the credibility of the complainant is enhanced, and that therefore the prosecution case can be more readily accepted.
In Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at [7] – [11], the High Court made it clear that cross-examination of an accused to show that the accused cannot identify a motive for the complainant to lie is impermissible. The matter is also helpfully discussed by Sperling J in R v E (1996) 39 NSWLR 450 at 464 – 466.
These observations apply with equal force to the address by prosecuting counsel to the jury. It is impermissible for prosecuting counsel to address the jury on a basis that implies that a failure by the accused, or an inability of the accused, to identify a motive for the complainant or a supporting witness to lie, in some way buttresses the credit of the complainant or of the witness or strengthens the prosecution case. Any such suggestion in the address has the same unjust and unsound tendencies as does cross-examination to that effect.
In the present case, there was no suggestion in the cross-examination of the appellant that was contrary to these principles. The complaint on appeal related to counsel’s address to the jury. Mrs Shaw submitted that the address contained the suggestion that if the defence could not identify a credible reason why the complainant’s brother and friends, and Ms T, might have lied, their credit was enhanced and the prosecution case was strengthened.
The complainant and his brother and his friends were cross-examined in a manner that might suggest that the complainant had fabricated his evidence, that his brother was supporting him as a brother might, and that his friends had collaborated to support him. There was also a suggestion that Ms T might have reasons to give evidence adverse to the appellant, the reasons being linked to the failure of her business venture with the appellant.
In her address, the prosecutor was entitled to challenge the suggested motive for these witnesses to lie. She was entitled to invite the jury to consider the likelihood that these witnesses would lie for the reasons suggested or implied. But, in doing so, she was not entitled to take the further step and suggest that the absence of a persuasive motive to lie in fact enhanced the credibility of these witnesses, or strengthened the prosecution case: Palmer at [10]; R v Hewitt [1998] 4 VR 862 at 868 – 869.

I have read the relevant parts of the prosecutor’s address to the jury several times. I am satisfied that it did not offend these principles. The prosecutor began by reminding the jury that the defence did not have to provide a motive for prosecution witnesses to lie. She then turned to the suggestion of a “big conspiracy” between the complainant, his brother and friends and, subsequently, to the suggested motive for Ms T to lie. The prosecutor spent some time on this topic, and dealt with it fairly vigorously. But, in my opinion, she did no more than argue that the suggestion of a motive to lie was not sustainable. She did not suggest to the jury that, if that is so, the absence of a motive to lie of itself enhanced the prosecution case. In one sense, one can acknowledge that that suggestion must be implicit in any attack on a suggested motive to lie. But that cannot be a reason for holding that the prosecutor cannot attack the defence case in this respect.
If the trial judge considers there is a danger of the jury taking the further and impermissible step, the trial judge can give an appropriate cautionary direction. In a case in which some attention is paid to the possibility of the complainant or prosecution witnesses having a motive to lie, it might be wise for the judge as a matter of course to remind the jury that the absence of a motive to lie is neutral. But there is no requirement to do so in every case. The Judge did not do that in this case, but he gave the jury a number of quite adequate reminders of the requirement for the prosecution to prove its case beyond reasonable doubt. In particular, the Judge warned the jury specifically that their task was not to decide whether they preferred the complainant’s version of events or the accused’s version of events.
I reject this ground of appeal.
Conclusions
For the above reasons, I would allow the appeal and set aside the conviction recorded in the District Court. In my view, it is appropriate to order a re-trial. The evidence before the jury was evidence upon which a jury, properly directed, might convict.
WICKS J: I agree.
BESANKO J: I agree with the reasons of the Chief Justice and with the orders which he proposes.

[2002] SASC 326

2 October 2002