R v N, A - [2004] SASC 409

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v N, A
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Gray)
10 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
Appeal against conviction - appellant convicted by jury of two counts of indecent assault and four counts of unlawful sexual intercourse - whether trial Judge erred in directions to the jury concerning victim's motive for lying - whether victim's response in cross-examination asserting abuse of sister denied appellant a fair trial - whether the trial Judge erred by failing to direct jury to ignore victim's assertion - whether errors amounted to miscarriage of justice - appeal dismissed.
Palmer v The Queen (1998) 193 CLR 1; Crisafio v The Queen (2003) 27 WAR 169; The Queen v Fricker (1986) 42 SASR 436, discussed.

R v N, A
[2004] SASC 409
Court of Criminal Appeal: Doyle CJ, Perry and Gray JJ

DOYLE CJ: The appellant was found guilty by a jury after a trial of two charges of indecent assault and four charges of unlawful sexual intercourse.
The alleged offences were committed between 1990 and 1993. The victim was the daughter of the accused. She was born in April 1978. She was eleven years old at the time of the first offence, and fourteen or fifteen years old at the time of the sixth offence.
The appellant complains about two matters. His first complaint relates to the direction that the Judge gave to the jury relating to evidence about reasons why the victim might have made up the allegations against her father. The defence suggested that, for various reasons, the victim wanted to harm her father. The other complaint relates to an answer given by the victim in cross-examination, in the course of which she said that her father was also sexually abusing one of her sisters.
The trial
The case is one of a kind that is sadly all too common.
As I have said, the prosecution alleged the commission of six separate offences against the victim, beginning when she was eleven years of age and concluding when she was fourteen or fifteen years of age. The prosecution also led evidence from the victim of numerous other acts of sexual misconduct by her father against her, these not being the subject of charges. The sexual misconduct continued until the victim was eighteen years of age. She told no one about these things while they were happening. Her explanation was that her father made various threats to harm her, and to the family, were she to reveal what he was doing. She gave details of those threats. She said that she feared her mother would blame her. The victim married in 1999. After a while she decided to tell her mother, and according to her evidence did so in November 2000. She was then living in another city. She said “I decided to tell my mum and open it up and, in a way, rescue my family.
She came to Adelaide, and persuaded her mother and two sisters to leave Adelaide with her, returning to the city in which she was living. Later her mother and her younger sister, about eight years old, returned to live with the accused. I gather that this was early in the year 2001.
The victim reported the matter to the police about December 2001. She gave evidence, without objection, that she contacted the police because she wanted to make sure that her eight year old sister was protected from the appellant. She was afraid that he might do the same thing to her younger sister.
The effect of her evidence was that she was subject to prolonged sexual abuse by her father. She described a man who manipulated and controlled her to a high degree. On her evidence he was a most possessive man, displaying jealousy of other men who might be interested in her.
The appellant gave evidence. He denied any misconduct at all. He denied having tried to stop her mixing with boys. He referred to differences that he had with the victim’s husband. He gave evidence of some disputes that he had with the victim. The defence case was that the victim had lied. In cross-examination various matters were put to the victim as reasons for the victim wanting to “get back” at her father. They included disputes over the ownership of a business, the influence of the victim’s husband (and his disputes with her father) and a suggestion that she wanted to get her father out of her life.
In particular, defence counsel cross-examined the victim about a visit which she made to Adelaide in April 2000. It was later that year that she persuaded her mother to leave the accused. The visit to Adelaide in April 2000 was not led from the victim in evidence in chief. The cross-examiner suggested that on this occasion, when she was in Adelaide, there was an argument with her father, at the end of which he said he never wanted to see her again. The victim said that her father disowned her. It seems to have been common ground that this was a very serious falling out. Defence counsel suggested to the victim that her father had offered to bring the family to the city where the victim was living, but then could not afford to pay for the tickets and so paid for the victim to come to Adelaide. Defence counsel pressed the point with the victim that she complained to her father that he had not bought tickets for the family to come to see her. The victim agreed that her father paid for her ticket to come to Adelaide, but denied that the argument was over the question of buying the tickets. It was when counsel was pressing her on the subject matter of the argument that the answer complained of was given. The relevant passage of evidence is as follows:
“Q.Well, didn’t you say to your father ‘Why didn’t you pay for their tickets? Why didn’t you buy the tickets for the family to come and see me?’
A. No, I knew it wasn’t going to happen, even if my little sister said so.
Q.Did you say to your father ‘Tony told me that you wouldn’t buy the tickets. He told me that you were that kind of a person’.
A.No, I had a fight with my father because I knew that he was still sexually abusing [A].
OBJECTION: MR DIXON OBJECTS
Q.You had a fight with your father and, at the end of that fight, he said he never wants to see you again.
A.He disowned me.”
I mention here that the precise nature of the objection that counsel for the appellant made to this evidence was not explained to us.
A little later counsel for the appellant objected to another answer. In the course of submissions relating to that the Judge said, referring to the later answer, and the earlier answer set out above, that he did not think there was anything that he could usefully do that would undo what counsel for the appellant saw as “damage”. The Judge indicated that he would say nothing to the jury about either answer.
The prosecution case included evidence from a man and woman, who were friendly with the appellant and his wife, of what were very damaging admissions, if their evidence was accepted. The appellant denied making those admissions, and had an explanation for how the witnesses might have been mistaken.
In the course of the addresses, the prosecutor referred to the matters put forward by the defence as reasons why the victim might have made up her evidence. He made it clear to the jury that the appellant did not have to prove that any of the motives were present. He emphasised that it was the prosecution that had to prove its case. He said “you’ll have to consider whether you think there is any truth in them, or even a reasonable possibility of them being true, before you accept her evidence”. He then put submissions relating to the various suggestions.
Subject to the complaint to which I will come in a moment, no criticism was made of the Judge’s directions, nor could any criticism be made of them. The Judge appropriately emphasised, on a number of occasions, that the prosecution had to prove its case, and that the case had to be proved beyond reasonable doubt. He put the case to the jury on the basis that in the circumstances the victim could not have been mistaken about the matters of which she gave evidence. However, his directions did not suggest to the jury that the issue had become whether or not the victim was lying. Immediately after making the point that the victim could not be “honestly mistaken” he emphasised that the appellant did not have to prove anything, that they had to assess the evidence of the victim, and that if they were left with a doubt they should acquit. A moment or two before that he had told the jury that they could convict only if “satisfied beyond reasonable doubt that her evidence is honest and reliable. If you disbelieve her, or are left in doubt, you will have to acquit”. The Judge then came to the question of reasons why the victim might have lied. He said:
“The defence has suggested various possible motives for her to lie. Is she influenced by her husband? Is she cross to have lost the roadhouse, if she ever had it? Is there some other jealousy? You must think carefully about those suggestions. You may accept some of them, or all of them. Alternatively, you might reject them all. It is for you. If you were to reject them, please remember that the defence can only speculate about what goes on in [the victim’s] head. Their list may not be exhaustive. You may see other motives. You may even be left wondering what the motive could be. But, if so, the absence of any obvious motive does not, by itself, establish that she has told the truth. It is just one of the many factors that you will consider.”
The complaint about the Judge’s directions is based on the last two sentences of that direction.
Ground one - the direction relating to motives to lie.
Mr Edwardson, counsel for the appellant, submits that by his direction the Judge invited the jury to reason that a failure by the defence to establish a motive for the victim to lie was a matter that they could take into account in support of the conclusion that she was telling the truth. This, he submits, is contrary to authority, and tends to undermine the requirement that the prosecution must prove its case beyond reasonable doubt.
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 establishes that an accused person should not be cross-examined to show that the accused cannot identify or prove any motive for a complainant to lie. The majority (Brennan CJ, Gaudron and Gummow JJ) said at [7]:
“But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.”
The majority accepted that the complainant maybe cross-examined to show, and that evidence may be led by the defence to show, that the complainant has a motive to lie. Evidence of a motive to lie will often be a significant issue in a case. The point of the decision in Palmer is that the inability of the accused to identify or to establish a motive to lie is irrelevant.
In the course of their reasons the majority commented on the approach to be taken when no motive to lie on the part of the complainant is made out. They said at [9], referring to a judicial comment that an absence of motive to lie suggested truthfulness:
“With respect, 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. That is the converse of the proposition stated by Cresswell J in the case cited by Wills where his Lordship acknowledged that proof of a motive to lie weakened a complainant’s credibility. The correct view is that absence of proof of motive is entirely neutral.” (Footnote omitted)
Mr Edwardson submits that by his directions the Judge implied or indicated that the absence of a motive to lie was, or might be, a matter indicating that the victim was telling the truth.
I disagree.
First of all, the passage in the summing-up appears to me to make a point favourable to the defence. The point is that the absence of an obvious motive to lie does not support the victim’s credit. The Judge makes the point that there might be a motive to lie discernible by or known to no one. As he said in the course of this passage “the defence can only speculate about what goes on in [the victim’s] head”. In the circumstances of this case, in which various motives to lie were the subject of evidence, and were put to the victim in cross-examination, the Judge’s comment was no more than a reminder that there might be other unknown and undisclosed motives to lie. The absence of an obvious motive to lie was merely one matter for the jury to consider.
The Judge’s comment was cast in the negative. It does not, in my opinion, convey or imply the affirmative proposition that absence of evidence of a motive to lie is a reason to believe the victim. The thrust of the comment is that the absence of an obvious motive to lie does not establish that the victim has told the truth.
I note that no complaint was made about this aspect of the summing-up at the time. That suggests that this part of the summing-up was not heard or understood by counsel as contravening what was said by the High Court in Palmer.
There is nothing else in the summing-up that would have suggested that there was an onus on the accused to show that the victim had lied, or had a motive to lie.
In Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169, the Court considered what comment might be made by a trial Judge when a complainant is cross-examined about a motive to lie, and when there is evidence suggesting a motive to lie. Murray J, with whom the other members of the Court agreed, said at [59]:
“Whether or not any comment is made, the trial judge must take care to ensure that the jury is not left with any impression that the accused bears any onus to establish that the complainant has a motive to lie or that the lack of any perceived motive to lie of itself justifies the acceptance of the evidence of the complainant and the rejection of the evidence of the accused.”
I am satisfied that the comment made by the Judge in the present case is consistent with that requirement.
Perhaps it might have been better if the Judge had omitted the final sentence from the passage set out above. But I am quite satisfied, looking at the summing-up as a whole, and reading this passage in context, that it would not have conveyed to the jury that they could or might engage in the form of reasoning disapproved of by the High Court in Palmer.
Ground two - the victim’s accusation
Mr Edwardson submits that the allegation by the victim that her father was abusing her sister was not responsive to the question, and denied the appellant a fair trial.
The Judge did not give the jury any direction in relation to this part of the evidence. The Judge took the course that he indicated to counsel he would take, which was to say nothing. In some cases that will be the best approach. Everything depends on the circumstances of the individual case: see The Queen v Fricker (1986) 42 SASR 436 at 439 King CJ.
I do not agree that the answer was not responsive to the question. Counsel at the trial quite properly pressed the victim about the reason for the argument. This was an important aspect of the defence case. He put to the victim, almost immediately after the passage set out above, that from the time of that conversation she made a plan to get rid of her father. There was an obvious risk that the cross-examination would cause the victim to answer, as she did, and as many would in that situation, by giving her version of the subject matter of the argument. The victim can hardly be criticised for doing that.
Moreover, the approach to cross-examination, pursued quite properly, raised the subject matter of the argument, and made that subject matter relevant. If the victim had not given the answer that she gave, it would have been open to the prosecutor to seek leave to re-examine her as to the subject matter of the argument. The topic was clearly relevant. The Judge would have had to decide whether the probative value of the victim’s explanation was outweighed by its prejudicial effect. The Judge might well have taken the view that the victim should be allowed to give in re-examination the answer that she actually gave.
In short, the evidence that the victim gave was relevant. It was evidence that might have been excluded by the Judge, in the exercise of his discretion. It was not admissible as evidence of any misconduct by the accused. Its relevance was simply as the victim’s evidence as to the subject matter of the argument with her father. While some judges might have directed the jury that they must ignore any assertion that the appellant had committed offences with the victim’s sister, other judges might well have taken the course followed by the trial Judge, to avoid giving emphasis to the accusation.
It is also relevant that no application was made to the Judge to discharge the jury, when the evidence was given.
In all the circumstances, I do not consider that a miscarriage of justice has occurred as a result of the giving of this evidence. It is evidence which, in the end, might have got before the jury in another manner. It was relevant and admissible, subject to the exercise of the discretion to exclude it. The prosecutor made no more than a passing reference to it in his address, saying simply that the victim had told the jury that the fight “was about sexual abuse, it wasn’t about air tickets”. I am satisfied that appropriate measures were taken to reduce, so far as was practical, any prejudicial effect that might flow from the answer and the accusation it contained.
In all the circumstances, there was no miscarriage of justice.
Conclusion
For those reasons I would dismiss the appeal.
PERRY J: In my view the appeal should be dismissed. I agree with the reasons published by Doyle CJ.
GRAY J: I agree with the orders proposed by Doyle CJ. I have nothing to add to his reasons.