R v Pelly
[2015] SASCFC 25
•23 March 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PELLY
[2015] SASCFC 25
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Bampton and The Honourable Justice Parker)
23 March 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION
Appellant convicted after trial by jury of assault causing harm and rape – appellant complains that prosecutor’s cross-examination of him, prosecutor’s final address and the Judge’s failure to remedy either resulted in a miscarriage of justice – appellant further argues that the Judge failed to properly direct as to the issue of lies and defence of property – where no objection made by defence counsel at trial
Held per Bampton J (Parker J concurring) (dismissing the appeal):
An objective reading of the whole of the trial reveals that the complainant’s evidence was compelling and it was open to the jury to exclude as a reasonable possibility the appellant’s account of what occurred. The impugned cross-examination and prosecutor’s remarks would not have created any real risk that the jury would not have given proper consideration to the evidence. When the remarks about which complaint is made are considered in the context of the overall trial, they do not carry any risk of a miscarriage of justice. Any potentially unfair comment or cross-examination was moderated by the summing up and did not bring about a miscarriage of justice. No lies direction was required. Defence of property did not arise on the evidence. Appeal dismissed with respect to ground 1.3. Permission to appeal refused on all other grounds.
Per Gray J (dismissing the appeal against conviction for assault; in dissent on the appeal against conviction for rape):
1. The defence case was that the complainant lied. The defence case did not suggest a motive to lie on the part of the complaint. Accordingly, it was impermissible for the prosecutor in his closing address to attribute to the defence case a suggested motive to lie on the part of the complainant. The prosecutor’s submission had the effect of placing the onus on the defendant to prove a motive to lie. The general directions given by the trial Judge were insufficient to address the prejudicial effect of the prosecutor’s submission.
2. The defendant’s rejection of the prosecutor’s suggestion of recent invention could only be substantiated by the defendant having earlier waived his right to silence or by the defendant disclosing privileged instructions at trial. The prosecutor’s cross-examination and submission in his closing address that the defendant had tailored his case to fit the prosecution evidence was an impermissible attack on the right to silence. The Judge’s treatment of the submission in his summing up amounted to an acceptance that the submission was appropriate. The Judge should have given a specific direction that no inference of guilt could be drawn against the defendant for his failure to disclose his version of events prior to the receipt of the prosecution evidence.
3. The suggested lies said to have been told by the complainant and defendant concerned the central issues for determination at trial. The Judge’s directions concerning lies were appropriate and there was not a reasonable risk that the jury would have engaged in an impermissible reasoning process upon finding that the defendant had lied.
4. The prosecutor made an impermissible reference to the screen as part of a submission in support of the complainant’s credibility. In the circumstances, the Judge should have provided a specific direction concerning the inappropriateness of the prosecutor’s comment.
5. The prosecutor’s conduct fell below the standard expected of counsel representing the Director of Public Prosecutions. He used inflammatory rhetoric, mounted a personal attack on the defendant and barracked for the complainant. This was particularly inappropriate in a trial in which the credibility of the complainant and defendant were central to the jury’s verdict. The trial Judge’s general directions were insufficient to address the prosecutor’s poor conduct.
6. By convicting the defendant of assault the jury necessarily rejected, beyond reasonable doubt, the facts necessary for the defendant to make out the defence of property.
7. Credit and demeanour were central to the determination of the facts in issue on the charge of rape and the jury, having seen the evidence given in person, were in the best position to assess the evidence and credibility of the witnesses. There is a real risk that the prosecutor’s conduct infected the jury’s deliberations on this critical issue. This Court is not in a position to undertake the necessary assessment of the witnesses’ demeanour and credibility required to determine the defendant’s guilt. The proviso should not be applied.
8. The appeal against the conviction for rape should be allowed and a retrial should be ordered.
9. The appeal against the conviction for assault should be dismissed.
Criminal Law Consolidation Act 1935 (SA) s 15A, s 20(4), s 48, s 353; Evidence Act 1929 (SA) s 13A, s 18, referred to.
Libke v The Queen (2007) 230 CLR 559, applied.
Alister v The Queen (1984) 154 CLR 404; Bataillard v The King (1907) 4 CLR 1282; Bridge v The Queen (1964) 118 CLR 600; Coco v The Queen (1994) 179 CLR 427; Deriz v The Queen (1999) 109 A Crim R 329; Dhanhoa v The Queen (2003) 217 CLR 1; Edwards v The Queen (1993) 178 CLR 193; Gonzales v The Queen (2007) 178 A Crim R 232; Halliday v Nevill (1984) 155 CLR 1; Mackrell v Western Australia (2008) 37 WAR 414; Palmer v The Queen (1998) 193 CLR 1; Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; Plenty v Dillon (1991) 171 CLR 635; R v Bachra (2010) 108 SASR 204; R v Bonython-Wright (2013) 117 SASR 410; R v DCC (2004) 11 VR 129; R v E (1996) 39 NSWLR 450; R v Karounos (1995) 63 SASR 451; R v Kostaras (2002) 133 A Crim R 399; R v Kostaras (No 2) (2003) 86 SASR 541; R v Livermore (2006) 67 NSWLR 659; R v McCullough (1982) 6 A Crim R 274; R v Powell [2014] SASCFC 48; R v Reeves (1992) 29 NSWLR 109; R v Rigney (2005) 241 LSJS 172; R v Roberts (2011) 111 SASR 100; R v Tran (2000) 105 FCR 182; Siebel v The Queen (1992) 57 SASR 558; Stuart v The Queen (1959) 101 CLR 1; Tran v The Queen (2000) 105 FCR 182; Weiss v The Queen (2005) 224 CLR 300; Whitehorn v The Queen (1983) 152 CLR 657; Zoneff v The Queen (2000) 200 CLR 234, considered.
R v PELLY
[2015] SASCFC 25Court of Criminal Appeal: Gray, Bampton and Parker JJ
GRAY J.
This is an application for permission to appeal against conviction.
Introduction
The defendant and appellant, Ronald Daniel Pelly, was charged on Information that on 25 April 2013 at Adelaide he assaulted the complainant, known as Monica, causing her harm.[1] It was further alleged that, on the same day, the defendant engaged in sexual intercourse with the complainant without her consent by inserting his penis into her anus while knowing or being recklessly indifferent to the fact she was not consenting.[2]
[1] Criminal Law Consolidation Act 1935 (SA) section 20(4).
[2] Criminal Law Consolidation Act 1935 (SA) section 48.
At a trial before a jury in the District Court, it was the prosecution case that the defendant had made a booking for the complainant, who worked as a prostitute, to attend at his room at the BreakFree Hotel on Hindley Street. When the complainant refused the defendant’s request to engage in penile anal intercourse, he strangled her and anally raped her.
The defendant denied the allegations. On the defence case, the complainant consented to penile anal intercourse with the defendant. After this act of intercourse, the complainant demanded more money and became irate when the defendant refused to pay. She attacked the defendant, who grabbed her by the throat and evicted her from his hotel room in self-defence.
On 22 May 2014, the defendant was convicted of assault causing harm by a unanimous jury verdict and convicted of rape by a majority jury verdict.
The Trial
The Prosecution Case
The prosecution case may be summarised as follows. The complainant is a Chinese national who spoke very little English. She worked as a prostitute and had come to work in Adelaide during the month of April 2013. She had an arrangement with a woman known as Rachel, the proprietor of a massage parlour run from her home in Adelaide. Rachel would place advertisements for the complainant’s services in the newspaper and then book jobs on her behalf. The complainant resided with Rachel while in Adelaide.
At about 1.00 am on 25 April 2013, the defendant contacted Rachel in response to one of the advertisements. The defendant and Rachel negotiated for the complainant to provide prostitution services to the defendant for one hour at a cost of $200.00. The complainant understood that she would be providing massage, oral and penile vaginal sexual services.
The complainant was driven to the BreakFree Hotel on Hindley Street just after 2.00 am on 25 April 2013 by a man, JSK, Rachel’s housemate. He remained in his motor vehicle.
The complainant entered the defendant’s hotel room and the defendant gave her $200.00 cash. They then went into the bedroom and undressed. Following a massage, the defendant requested that the complainant perform oral sex on him. She did so, with the defendant wearing a condom. The defendant then requested penile vaginal intercourse. They proceeded to do so, with the defendant wearing a condom. When they commenced penile vaginal intercourse, the defendant was lying on his back on the bed and the complainant was sitting on him. After a while, the defendant requested that they adopt the “doggy-style” position. The complainant agreed. They changed position. After engaging in penile vaginal intercourse, the defendant requested that they engage in penile anal intercourse. The complainant turned her head to look at the defendant and refused, telling him “no, never”. The defendant then turned the complainant around and began to choke her using both hands. The complainant used her hands to resist and to signal the defendant to stop, but lost consciousness. This conduct gave rise to the charge of assault causing harm.
When the complainant regained consciousness, the defendant dragged her from the bedroom into the lounge and lay her face down against a couch. The defendant attempted to penetrate the complainant’s anus with his penis while wearing a condom. When his initial efforts proved unsuccessful, he removed the condom and inserted his penis into the complainant’s anus. The defendant ejaculated inside the complainant’s anus. The complainant pleaded with the defendant to stop throughout this period and at one point offered him his money back. This conduct gave rise to the charge of rape.
After the defendant had ejaculated he asked the complainant to leave. At about 2.45 am, immediately after the complainant left the hotel room, she called Rachel and told her that she had been raped. Rachel gave evidence at trial that the complainant sounded distressed and had difficulty speaking. JSK gave evidence at trial that he saw the complainant as she left the hotel – she was crying and her neck appeared red and swollen. The complainant and JSK were unable to communicate as JSK could not speak or understand Mandarin. Shortly after the complainant entered his car, JSK received a call from Rachel, who relayed what the complainant had told her. JSK then called the police.
At about 3.00 am, paramedics attended the complainant. They gave evidence that the complainant was distressed. One paramedic also gave evidence of observing abrasions to the complainant’s face and neck. The paramedics were unable to assess the complainant’s condition as she was unable to communicate with them due to the language barrier. They took the complainant to the Royal Adelaide Hospital at approximately 3.30 am.
The complainant was assessed at the Royal Adelaide Hospital at about 8.00 am and was then referred to Yarrow Place, a division of the Women’s and Children’s Hospital. At about 1.20 pm, James Dayman examined the complainant and noted lacerations to the tongue, bruising and scratching to the throat, small haemorrhages on the face and that the complainant had difficulty speaking and swallowing. In Dr Dayman’s view, the most likely explanation for her injuries was that, while being strangled, the complainant had a seizure and bit her tongue. Although noting that the complainant reported some anal soreness, Dr Dayman did not observe any injuries to the vagina or anus.
The Defence Case
The defendant gave evidence at trial. The defendant was a regular user of prostitutes and familiar with the process for hiring prostitutes and the negotiation for the provision of particular sexual services, such as penile anal intercourse or intercourse without a condom. The defendant’s evidence differed from the complainant’s in material respects. The defendant gave evidence that the complainant agreed to anal intercourse shortly after she entered his hotel room. While engaging in penile vaginal intercourse in the doggy-style position, the defendant claimed to have inserted his thumb into the complainant’s anus and that she did not protest. After some minutes of penile vaginal intercourse in the bedroom, the defendant suggested moving into the lounge. He further suggested that they engage in intercourse without a condom, to which the complainant agreed, on the condition that he “pay extra” – she did not specify an amount. Shortly thereafter, they engaged in consensual penile anal intercourse without a condom.
On the defence case, following anal intercourse, the defendant offered the complainant an additional $50.00. The complainant refused this offer, slapped his hand away and demanded an additional $200.00. The defendant refused to pay any more than $50.00. The complainant then hit him on the shoulder. The defendant grabbed the complainant by the throat and she, in turn, “clawed” at his face and began screaming in a foreign language. The defendant lifted the complainant by the throat and took her outside the hotel room to evict her. After waiting by the door for some time, to guard against the complainant returning to his hotel room and resuming her attack on him, the defendant went to bed.
The Appeal
A number of complaints were advanced on the appeal. The defendant contended that the prosecutor advanced wholly inappropriate submissions concerning the question of the complainant’s motive to lie and that the Judge failed to give appropriate directions on this topic during the summing up. It was further contended that the prosecutor advanced wholly inappropriate assertions suggesting that the defendant had lied out of a consciousness of guilt in circumstances that infringed the right to silence and led to a reversal of the onus of proof. It was then contended that the Judge failed to give any adequate direction in regard to the suggestion of lies and the reversal of the onus. It was further submitted that wholly inappropriate comments were made by the prosecutor concerning the presence of the screen erected in court between the defendant and the complainant while the complainant gave evidence. It was said that these comments, in part, unfairly sought to bolster the complainant’s credit. A complaint was made that, throughout the trial, the prosecutor adopted an overzealous approach and made use of intemperate and inflammatory language. As a consequence of this approach, it was said that gross unfairness in the trial process was accorded to the defendant. Finally, a complaint was advanced concerning the Judge’s directions with respect to the suggested defence of property pursuant to section 15A of the Criminal Law Consolidation Act 1935 (SA) in relation to the charge of assault causing harm.
It should be immediately observed that counsel appearing for the defendant at trial did not raise any complaint as to the above matters. I will return to this topic later when discussing the submissions of counsel appearing for the Director of Public Prosecutions on the appeal.
The Complainant’s Motive to Lie
A review of the cross-examination of the complainant reveals that there was no suggestion made to her that there she had a motive to lie. The cross‑examination clearly put to the complainant the defence case as to what had occurred, namely, that she had consented to penile anal intercourse, that a dispute had arisen as to money, that she had attacked the defendant and that he had forcibly removed her from the room.
A review of the evidence of the defendant reveals that, during evidence in chief, the topic of the complainant’s motive to lie was not addressed. The defendant’s account accorded with his case as put to the complainant in cross‑examination. During cross-examination, the prosecutor did not raise with the defendant the topic of the complainant’s motive to lie.
During the addresses of counsel, and in the Judge’s summing up, the jury were informed that there was no onus on the defendant to establish a motive for the complainant to lie. The Judge informed the jury that they should draw no adverse inference in that respect against the defendant.
The topic of the complainant’s motive to lie was raised, however, when the prosecutor addressed the jury on the basis that the defendant had suggested a motive to lie on the part of the complainant, which, for a number of reasons, was absurd. The submission was advanced in an intemperate manner as follows:
It’s been quite clearly suggested in this trial Monica made up these allegations and the obvious reason being the accused didn’t pay her the extra money, probably also the fact that he strangled her and threw her out of the room. We must bear in mind, however, that there’s absolutely no onus on the defence to provide a motive about why someone would make something up. They’re not able to look in a person’s mind, they shouldn’t have to.
But since one has clearly arisen in this case it is here for us to consider.
What the defence would have you believe in this case is that somewhere between being ejected by the accused from that hotel room and getting to the Hindley Street gutter she devised a calculated plan to falsely cry rape. A plan that must have been formulated in a matter of minutes on that walk from room 130 to the street while gasping for air, probably in shock and probably shortly after having a seizure. The plan must have been formulated during that couple of minutes before she got on the phone to Rachel.
Her plan then must have started in the gutter where she rang a friend of hers, Rachel, and lied through her teeth to her friend. A friend who was having her stay over, a friend who she entrusted to answer calls and provide her with business. A deceitful plan crafted by Monica from the start with a lie to her friend. A plan so carefully thought out she started the lie to her friend, not to the police so as not to raise suspicions.
Then what the defence allegation must involve is that Monica then continued that lie after lying to Rachel, she then lied to Dr Dayman and she subjected herself to an internal anal examination when this is just all a lie, there was no point to it. So an internal anal examination Monica’s undergone just to further this lie.
Then the defence allegation must go that Monica then lied to police in giving false witness statements. She must have continued lying for 12 months. You heard she lives in Sydney, she must have travelled from Sydney to this trial to set out to deliberately deceive all of you. She involved her friend, Rachel, in the trial and she’s done that again when this is all a big lie.
Then most importantly, you might say, she swore in this very room to tell you the truth and she lied again and she subjected herself to cross-examination by my learned friend. She was asked questions about her sexual history, she was asked questions about her syphilis, she was asked questions about having sex with her boyfriend in Shanghai and she was asked questions about having sex with her husband. She subjected herself to all of that but she’s here lying to you when she doesn’t need to be.
She’s persisted with this lie because she was angry with the accused because he didn’t pay a bit of extra money and in relation to the strangulation. That must be the defence allegation and I ask you rhetorically does that appeal to your common sense? Or is this case what it seems: this is a woman who underwent a traumatic rape and is here in court undergoing cross-examination because it actually happened and she’s determined to see it through, determined to make the accused accountable for what he did to her, for what he subjected her to?
If you come to the conclusion she’s here telling the truth then the charges are proved because you remember her evidence, there can be no mistake about it....
[Emphasis added.]
The emboldened passages in the above extract of the prosecutor’s address allow the conclusion that the prosecutor was asserting that the defendant had suggested a motive to lie on the part of the complainant. As noted above, no such suggestion was made in the trial by the defendant.
A review of the defence address, made following the prosecutor’s address, discloses that only passing reference was made to a possible motive to lie as follows:
As my learned friend has said I agree entirely, at the end of the day it’s going to come down to how you assess Monica’s evidence, and I’m not going to go through it in detail because it hasn’t been a long trial, you’ve heard the evidence quite recently and you were clearly paying close attention to her evidence. But defence do suggest that when she was giving evidence to you Monica was not being truthful, and you will reflect, think about for example her demeanour when she was giving evidence. It’s a matter for you but I suggest you can have a doubt as to whether she was being entirely accurate with you.
As my friend has also said, the defence are not required to provide you with a motive for why Monica might have been untruthful with you. We can’t look into someone’s mind, no-one can look into someone’s mind, but common sense and the world tells you that people do lie and they can lie for many, many, reasons. You might think that anger and frustration and humiliation can be a strong motive to lead people to lie perhaps and you might also think that once an allegation like rape is made it’s a very difficult allegation to then withdraw without perhaps attracting further probing and humiliation.
It was the submission of the defendant on the appeal that what had occurred was grossly unfair, misrepresented the defendant’s evidence and allowed the prosecutor to speculate or make up a suggested motive on the part of the complainant and then proceed to debunk or ridicule that motive. Though that process, the prosecutor also sought to bolster the complainant’s credibility. In the defendant’s submission, the language used by the prosecutor was intemperate and inflammatory and was designed to ridicule the defendant in front of the jury. It was complained that the overall effect was to cast an onus on the defendant which he did not carry and that the directions of the Judge failed to address the prejudice that had arisen.
The High Court’s decision in Palmer[3] concerned cross-examination of a defendant, who was accused of sexual offences against a minor, which was conducted so as to effectively place the burden on the defendant to explain why the complainant would lie. The majority of the Court concluded that the cross‑examination was not permissible and, as the directions given by the trial Judge did not neutralise the prejudicial effect of the cross-examination, ordered a new trial.
[3] Palmer v The Queen (1998) 193 CLR 1.
Brennan CJ, Gaudron and Gummow JJ addressed the relevant authorities and said:[4]
It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is “oath against oath”. In such a case, to ask an accused the question: “Why would the complainant lie?” is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused...
[Footnote omitted. Emphasis added.]
[4] Palmer v The Queen (1998) 193 CLR 1, [7]-[8].
Brennan CJ, Gaudron and Gummow JJ then cited with approval the following passage from the judgment of Sperling J in E:[5]
... To ask, “Why would he or she lie?” in such a case is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood. That is not to try the case on the evidence, but to speculate concerning unproven facts. The absence of evidence of a motive for lying and of a plausible explanation for lying is not proof that there was no motive for lying. Yet to pose the question at all is to give legitimacy to that method of reasoning and to that conclusion …
Secondly, the question is unfair to the accused. How can the accused or his counsel be expected to see into the mind of the complainant, and be held accountable for failing to discern whatever motive there may be for a false story? …
Thirdly, the effect of the question is to reverse the onus of proof. The question implies that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant’s evidence and convict...
[5] Palmer v The Queen (1998) 193 CLR 1, [8]; R v E (1996) 39 NSWLR 450, 464.
Brennan CJ, Gaudron and Gummow JJ considered that the third issue identified by Sperling J might be addressed by an appropriate direction from the trial judge:[6]
... 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.]
[6] Palmer v The Queen (1998) 193 CLR 1, [9].
In Kostaras, Doyle CJ considered the High Court’s decision in Palmer[7] and said:[8]
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 (1998) 193 CLR 1 at 7-10 [7]-[11]; 96 A Crim R 213 at 217-220 [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 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 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 9-10 [10]; 219 [10]); Hewitt [1998] 4 VR 862 at 868-869.
[Emphasis added.]
[7] Palmer v The Queen (1998) 193 CLR 1.
[8] R v Kostaras (2002) 133 A Crim R 399, 411. See also R v Kostaras (No 2) (2003) 86 SASR 541.
On the appeal, counsel for the defendant submitted that the prosecutor’s address offended the rule in Palmer.[9] Attention was drawn to the above observations of Doyle CJ in Kostaras,[10] and, in particular, the application of the principle in Palmer to the prosecutor’s address. It was said that the prosecutor shifted the onus to the defendant to explain why the complainant lied.
[9] Palmer v The Queen (1998) 193 CLR 1.
[10] R v Kostaras (2002) 133 A Crim R 399.
The circumstances of this case raise matters of considerable concern. As discussed above, the topic of the complainant having a motive to lie was not raised by defence counsel or the prosecutor in evidence. Notwithstanding the absence of any evidence on the topic, the prosecutor, during his address, attributed to the defendant an allegation that the complainant had lied because “he didn’t pay a bit of extra money and in relation to the strangulation.” The immediate difficulty confronting the Director on the appeal is that the defendant did not make this allegation at any earlier time in the trial.
It follows that the prosecutor raised a false issue. This was unfair. The prosecutor used this false issue in the manner extracted above to enhance the credibility of the complainant by suggesting that the only motive she could have for lying was totally unpersuasive and would have no appeal to commonsense.
The prosecutor’s submission amounted to an invitation to engage in speculation. The submission implied that the defence case was weakened by the attempt to identify a plainly unpersuasive motive for the complainant to lie. As Doyle CJ observed in Kostaras,[11] this is unfair because a lie might be told for reasons unknown to anyone, let alone the defendant. There was a suggestion within the prosecutor’s submission that the accused should be able to identify motive, had advanced a wholly unpersuasive motive and, as a result, there was a risk that the jury would understand that there was some onus on the defendant. As Doyle CJ further pointed out, the implicit suggestion of the prosecutor was that, as the defendant had only suggested an unpersuasive motive, one that the jury would readily reject, the credibility of the complainant was enhanced and, as a consequence, the prosecution case could be more readily accepted.
[11] R v Kostaras (2002) 133 A Crim R 399.
Counsel for the Director submitted that the complainant’s motive to lie was put in issue by the defence case. In such circumstances, the prosecutor was entitled to test the suggested motive for the complainant to lie. It was pointed out that both the Judge and the prosecutor directed the jury against “choice reasoning” and that the burden was not on the defendant to establish why a particular witness was being untruthful. By way of example, attention was drawn to the following passage from the prosecutor’s address:
It’s been clearly suggested in this trial Monica made up these allegations and the obvious reason being the appellant didn’t pay her the extra money, probably also the fact he strangled her and threw her out of his room. We must bear in mind, however, that there’s absolutely no onus on the defence to provide a motive about why someone would make something up. They’re not able to look in a person’s mind, they shouldn’t have to.
But since one has clearly arisen in this case it is here for us to consider.
[Emphasis added.]
Attention was also drawn to the following passage of the Judge’s summing up:
You must bear in mind throughout your deliberations that every accused person comes to the courtroom with a presumption of innocence. The law looks upon every citizen as innocent of every crime unless and until the jury is satisfied beyond reasonable doubt that the position is otherwise. There is no operation in our system of law of an accused person to exonerate himself or herself to give any evidence in his or her own defence, to prove anything or to call any other evidence or to demonstrate that a particular witness or witnesses are not telling the truth.
[Emphasis added.]
In my view, the prosecutor’s address offended the rule in Palmer,[12] as applied to closing addresses in Kostaras.[13] The defence case was that the complainant lied. However, a motive to lie was not put to the complainant. The first time that a motive to lie was raised was in the prosecutor’s closing address. The submission was extensive and given significant weight by the prosecutor. It is to be noted that the submission was immediately followed by the submission that, “If you come to the conclusion she’s here telling the truth then the charges are proved...”. In this way, the prosecutor invented a weak motive for the complainant to lie, attributed it to the defence case, portrayed it as being unpersuasive and then submitted that the charge was proved if the complainant’s evidence was believed. The submission by defence counsel during her address did not assert a motive to lie in the terms suggested by the prosecutor in his address. The submission was made in response to the prosecutor’s submission and was speculative in nature. It did not suggest a motive to lie. Rather, it raised some possible reasons why a person in the complainant’s position might lie. The prosecutor’s submission was impermissible, unfair, prejudicial and inappropriate.
[12] Palmer v The Queen (1998) 193 CLR 1.
[13] R v Kostaras (2002) 133 A Crim R 399.
I do not consider that the Judge’s general directions, as referred to by counsel for the Director on the appeal, were in any way sufficient to address the unfairness that had arisen or cure the prejudice to the defendant. It is to be accepted that the Judge’s direction made it clear to the jury that there was no onus on the defence to provide a motive. However, the problem remains that the Judge’s direction failed to address the prejudice occasioned by the inappropriate submission of the prosecutor concerning the suggested motive to lie on the part of the complainant.
Recent Invention and the Right to Silence
The law on recent invention was summarised in the following terms by this Court in Powell:[14]
The term “recent invention” has been recognised as having a particular significance. When it is suggested to a witness that their version of events is a recent invention, it is then open for counsel to lead evidence to establish that the witness has given their version of facts to others at an earlier point in time. That evidence may establish consistency in the account of the witness and can rebut the suggestion of recent invention. In this case, a suggestion of recent invention would have meant that the defendant contrived his evidence to provide himself with a defence to the charge or to provide a version of events from which the Court could conclude that there was a reasonable possibility that Latara Hunt may have caused the injuries to BJ. If recent invention had been suggested in that way, it would have been permissible for the defence to call evidence to establish that the account was given at a time when it could not be suggested that the evidence was a recent fabrication.
In Nominal Defendant v Clements, the High Court discussed the topic of recent invention and the consequences which may flow if a suggestion of recent invention is made. The judgments make it clear that if the credit of a witness as to a material fact is impugned as being a late invention or reconstruction, the consequence is that evidence of previously consistent statements may be admissible if made at a time sufficiently early so as to be inconsistent with the suggestion of recent invention.
In order for an attack upon a witness that their evidence is a recent invention to be of evidential value, the witness must be confronted with and given the opportunity to rebut the suggestion. Evidence is then admissible to rebut the suggestion and witnesses can be called to establish that the witness’ account was not a recent invention and that his account has been consistent. As Dixon CJ observed in Nominal Defendant v Clements:
… The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. …
[Footnotes omitted.]
It is to be noted that, in Powell, no suggestion of recent invention was advanced at trial – the first time it was raised was in the Judge’s reasons for verdict.
[14] R v Powell [2014] SASCFC 48, [24]-[26].
In Stuart, the High Court considered the significance of an infringement of a defendant’s right to silence and said:[15]
The statute gives an important protection to accused persons, and the prohibition which it conveys is peremptory. Prima facie a breach by the prosecution of that prohibition must provide a good ground for the quashing by a court of criminal appeal of a conviction.
The Court held that the prosecutor’s comment infringed on the right to silence. However, the Court refused to grant leave to appeal as the trial Judge addressed the relevant material so as to “have reduced the learned counsel’s irregular comment to insignificance”.[16] The Court did, however, observe:[17]
It is not, of course, to be supposed that in every case a lawful comment by the trial judge on a failure to give evidence can have the practical effect of erasing or condoning a prior unlawful comment by the prosecution.
[15] Stuart v The Queen (1959) 101 CLR 1, 9.
[16] Stuart v The Queen (1959) 101 CLR 1, 10.
[17] Stuart v The Queen (1959) 101 CLR 1, 10.
The prohibition extends to any comment on the failure of the accused to answer the prosecution case. The bounds of what is permissible and what is prohibited were described by King CJ in Siebel in the following terms:[18]
It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.
When determining whether a prosecutor has transgressed the prohibition, regard is had not to what the prosecutor intended to say but what his words would have conveyed to the jury: R v Bint (1996) 187 LSJS 201 at 213 per Cox J.
[18] Siebel v The Queen (1992) 57 SASR 558, 562.
The corollary of the principle that an accused person has the right to silence is that no adverse inference should be drawn by the prosecution from an accused’s failure to give evidence. That protection is expressly afforded by section 18(1)(b) of the Evidence Act 1929 (SA) which provides:
The failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution...
The prohibition applies to both direct and indirect allusions but the court will have regard to the particular circumstances of the case.[19]
[19] See Bataillard v The King (1907) 4 CLR 1282, 1291; Bridge v The Queen (1964) 118 CLR 600.
In Petty,[20] the High Court considered the scope of the right to silence. The case concerned an accused who had made a statement to police, remained silent, and then put forward an entirely different version of events at trial, such that the Crown did not have an opportunity to investigate it fully. In a joint judgment, Mason CJ, Deane, Toohey and McHugh JJ stated the protection afforded by the right to silence in the following terms:[21]
... That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.
[Emphasis added.]
[20] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95.
[21] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95, 99.
The majority then addressed the authorities which established “a distinction between reliance on silence as evidence against the accused, and reliance on it by way of answer to or comment upon a defence raised for the first time ... at the trial” and said:[22]
... We acknowledge that there is a theoretical distinction between the two modes of making use of the accused’s earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound. ...
[Emphasis added.]
[22] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95, 100-1.
Brennan J also rejected the above distinction and said:[23]
... Where a jury might have had regard to an accused’s earlier silence in evaluating evidence given by him at the trial, recognition of the right of silence precludes the jury from taking that silence into account. It is not open to attack exculpatory evidence of an accused as a recent fabrication merely because the accused was silent on occasions when he had a right to be silent. The right of silence would be infringed if evidence of silence were admissible to impugn exculpatory evidence or out-of-court statements by an accused.
[Emphasis added.]
[23] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95, 107.
Gaudron J addressed the inferences which may be drawn as a result of silence on the part of an accused in different contexts and said:[24]
The distinction which the cases assert between silence as, on the one hand, a matter bearing on the weight to be given to an explanation and as, on the other hand, a matter not founding an inference of guilt will not withstand scrutiny. A direction that the failure to raise an explanation before trial may be taken into account in assessing its weight really amounts to a direction that an inference of guilt may be drawn from that failure...
Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial. It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt. The corollary of that - and it is equally fundamental - is that, insanity and statutory exceptions apart, it is never for an accused person to prove his innocence. Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination.
To allow that an explanation might be judged false because it was not put forward before trial is, in effect, to allow that the burden of proving guilt may be more readily discharged because the accused person did not signal the precise basis of his innocence - in other words, his defence. And that is so even if the accused person bears an evidential burden, for a burden of that kind does not relieve the prosecution of the ultimate onus of establishing the elements of the offence charged beyond reasonable doubt.
A direction which allows that failure to advance a matter of defence may detract from its weight, reduces the burden on the prosecution to prove guilt beyond reasonable doubt and undermines its corollary that, insanity and statutory exceptions aside, it is never for an accused person to establish his innocence. It does so by subjecting the accused person to the risk that, if he does not signal before trial what he is under no obligation to prove in his trial, namely, the basis of his innocence, that may be used to establish his guilt. Accordingly, a direction of the type given in the present case is a misdirection. And, evidence that there was a failure to signal or raise some matter of defence before trial, which is directed only to the weight to be given to that matter of defence, is inadmissible because, given that it is for the prosecution to prove guilt and it is not for the defence to prove innocence, the evidence proves nothing.
[Footnotes omitted. Emphasis added.]
[24] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95, 128-9.
In Roberts,[25] the prosecution led evidence that the defendant had refused to answer police questions on the basis of legal advice. At trial, the Judge and the prosecutor directed the jury that the defendant was entitled to remain silent but the Judge did not direct the jury that no adverse inference could be drawn from the defendant’s silence. Sulan J, with whom White and Peek JJ agreed on this point, considered Petty and said:[26]
In this case, there was no objection by counsel to the evidence being led. The failure of the judge to exclude it is not, of itself, good reason to overturn the conviction. The failure could have been cured by a direction. The evidence having been admitted, the judge should have directed the jury in clear terms that no inference of guilt can be drawn from the fact that the appellant had exercised his right not to answer questions.
[25] R v Roberts (2011) 111 SASR 100.
[26] R v Roberts (2011) 111 SASR 100, [64].
In Mackrell,[27] the jury was shown footage of a search of the defendant’s premises which recorded the defendant saying “no comment” in response to police questions. Buss JA considered Petty and said:[28]
There are, relevantly, two aspects to the decision of the High Court in Petty v The Queen (1991) 173 CLR 95. First, it must not be suggested that an accused’s exercise of the right to silence provides a basis for inferring a consciousness of guilt. Second, it must not be suggested that previous silence by an accused about a defence he or she raises at the trial provides a basis for inferring that the defence is a recent fabrication or is otherwise suspect or unacceptable...
...
The learned trial judge gave general or non-specific directions to the jury, in the course of his summing up, that the appellant was entitled to “remain silent to any questions the police put to him” and that the jury could not draw an adverse inference against the appellant by reason of his exercise of that right. Those generic instructions, made without reference to the prosecutor’s comments, were not sufficient, in the particular circumstances of the case, to redress the prejudice caused by the prosecutor.
Miller JA held that a specific direction should have been given by the trial Judge as soon as the footage was shown and either during or immediately after the prosecutor’s summing up, in which the prosecutor made reference to the defendant’s comments to police.[29]
[27] Mackrell v Western Australia (2008) 37 WAR 414.
[28] Mackrell v Western Australia (2008) 37 WAR 414, 417-8.
[29] Mackrell v Western Australia (2008) 37 WAR 414, 437-8. See also R v Reeves (1992) 29 NSWLR 109.
These authorities impose a strict prohibition on a prosecutor making a suggestion of recent invention against a defendant who had exercised his or her right to silence except in circumstances where the defendant has an obligation to disclose a defence such as an alibi.
On the appeal, counsel for the defendant submitted that the prosecutor’s suggestion of recent invention on the part of the defendant attacked the defendant’s right to silence. It was further submitted that the Judge should have intervened, notwithstanding the failure of defence counsel at trial to object. It was contended that the Judge’s general directions about the right to silence were insufficient. It was argued that the Judge’s summing up left it open to the jury to adopt the flawed reasoning process that the Court in Petty[30] sought to avoid. An example of the Judge’s summing up on this topic follows:
... [The prosecutor argued] that what Mr Pelly was saying to you was implausible and fanciful and was an account planned by him designed to fit the prosecution case which he knew in advance from the papers that he had received and it was also planned in an effort to explain this struggle and to explain the medical evidence which was otherwise inexplicable. He argued that this account by Mr Pelly is a story that is unsatisfactory and it falls apart once you think about the other evidence and particularly the medical evidence in the case. He also argued that Mr Pelly’s evidence fell apart and did not have the ring of truth because in effect he was making things up as he went along. During the course of his evidence he questioned why there was no prior discussion about anal sex, about the issue of whether there was any reaction when he put his thumb in Monica’s anus and issues of that kind which he argued demonstrated unsatisfactory aspects of his story.
[Emphasis added.]
[30] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95.
Counsel for the Director submitted that the prosecutor had not infringed on the defendant’s right to silence – the cross-examination addressed whether the defendant had tailored his evidence to fit the prosecution case, not whether he had previously disclosed his defence. It was contended that the prosecutor should be allowed to test the veracity of the defendant’s account, including whether it was untrue.
In my view, the defendant’s right to silence was unfairly infringed. The above authorities are explicit that a suggestion of recent invention cannot be advanced in a case – such as the present – in which the defendant has chosen to exercise his right to stay silent in circumstances where he was under no obligation to say anything. Although the Judge gave a general direction in his summing up, he then proceeded to repeat the allegation of recent invention without specifically warning the jury against drawing impermissible inferences. The general direction, in my view, was insufficient in the present case. Though the prosecutor did not explicitly refer to the defendant’s silence, the implicit suggestion was that the defence had been invented following receipt of the prosecution evidence, well after the incident took place. The prosecutor went as far as to suggest that the defendant was “making things up as he goes along”. To substantiate his rejection of this suggestion, the defendant would have been required to have pre-emptively disclosed his version of events before becoming aware of the prosecution case or, potentially, to disclose privileged communications with his lawyer setting out his instructions.
In advancing the suggestion of recent invention, the prosecutor contrasted the defendant’s conduct with that of the complainant, who had maintained a consistent version of events from the moment she left the defendant’s hotel room. This contrast was repeated to the jury by the Judge without any suggestion that it was inappropriate. The Judge’s treatment of the submission amounted to an acceptance that the submission was appropriate and should form part of the jury’s deliberations. In the present case, the Judge should have provided a specific direction that no inference of guilt could be drawn against the defendant for his failure to disclose his version of events prior to the receipt of the prosecution evidence.
Direction Regarding Lies
As noted earlier in these reasons, in cross-examination, the prosecutor on a number of occasions put to the defendant that he had tailored his version of events to fit the prosecution evidence. An example follows:
Q:Because what I suggest you have done is just make up a story to fit in with all of the prosecution evidence you knew was going to be presented.
A: No, not at all.
In Edwards,[31] the High Court considered the significance of lies told by an accused. In a joint judgment, Deane, Dawson and Gaudron JJ, said:[32]
There is a difference between the mere rejection of a person’s account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary. However, the fact that a person has lied does not of itself establish a specific contrary proposition.
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to “convert what would otherwise have been insufficient into sufficient evidence of guilt” or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that “if he tells the truth, the truth will convict him”.
...
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of “a realisation of guilt and a fear of the truth”.
A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
[Footnotes omitted.]
[31] Edwards v The Queen (1993) 178 CLR 193.
[32] Edwards v The Queen (1993) 178 CLR 193, 208-10.
In Zoneff,[33] the High Court considered the appropriateness of an Edwards[34] direction in cases where it was not suggested by the prosecution that any specific lie had been told out of a consciousness of guilt, but where there remained a risk that the jury would engage in a flawed process of reasoning based on a finding that the defendant had lied. Gleeson CJ, Gaudron, Gummow and McHugh JJ said:[35]
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, “the accused knew that the truth ... would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.
[Footnotes omitted.]
[33] Zoneff v The Queen (2000) 200 CLR 234.
[34] Edwards v The Queen (1993) 178 CLR 193.
[35] Zoneff v The Queen (2000) 200 CLR 234, [16]-[17].
On the appeal, counsel for the defendant submitted that the Judge erred by not giving a direction in the terms set out by the majority in Zoneff, namely:[36]
You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.
[36] Zoneff v The Queen (2000) 200 CLR 234, [23].
Counsel for the Director pointed out that there was no request by defence counsel at trial for a direction in the terms set out by the High Court in Edwards or Zoneff.[37] Counsel drew attention to the following remarks of Gleeson CJ and Hayne J in Dhanhoa:[38]
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.
[Footnotes omitted.]
[37] Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234.
[38] Dhanhoa v The Queen (2003) 217 CLR 1, [34].
Counsel further submitted that there was no risk of a miscarriage of justice as, inter alia: the jury been properly directed as to the standard of proof; the defendant had the opportunity to deny, and had denied, the suggested that he had lied; and that the case necessarily involved an assessment of the defendant’s credibility, including whether he had lied about the ultimate issue in dispute.
In my view, the prosecutor clearly suggested that the defendant was lying out of a consciousness of guilt – that his evidence was fabricated to fit the incontrovertible aspects of the prosecution case and cast doubt on the aspects of the prosecution case that were reliant solely on the complainant’s evidence. Credit and truthfulness were squarely in issue. The lies were directly relevant to the facts in issue on both counts.
The Judge gave several directions which addressed the treatment of competing versions of events and the reliability of witnesses. Examples of such directions include the following:
The burden at all times remains on the prosecution, as Mr Ellison has accepted, of proving every element of the charges beyond reasonable doubt if it can. Failing that proof, you must give the accused the benefit of the doubt and acquit him.
...
Neither is it a question of choosing between one and the other version of events. Both counsel have said this to you. The fundamental question you must ask yourselves is whether each charge has been made out beyond reasonable doubt on the evidence as you are prepared to accept.
...
Now of course that does not mean you have to accept all of what a witness says without qualification. You might find that a witness whom you regard as generally reliable says something you cannot accept. Should that occur you do not have to necessarily reject the whole of the evidence of that witness. He or she may be honestly mistaken about one subject whilst being entirely reliability about others. So in the end members of the jury it simply comes down to this: it is open to you to accept all of what a witness says, part of it or indeed none of it.
[Emphasis added.]
The Judge did not, however, give a clear direction in the terms expressed by the High Court in Zoneff.[39]
[39] Zoneff v The Queen (2000) 200 CLR 234.
In my view, a direction in the terms contemplated by the Court in Edwards or Zoneff was not required in the present case.[40] Central to the present case was the dispute between two differing versions of events. The nature of the competing accounts was such that one of the complainant or the defendant was lying. The issue before the jury was not whether the defendant had lied about a particular matter, such as whether he used prostitutes, but whether the complainant’s version of events should be accepted and, if so, whether this, together with the other evidence, proved the defendant’s guilt beyond reasonable doubt. The jury’s decision on whether to accept the defendant’s evidence or, alternatively, to conclude that the prosecution had not excluded his account as being a reasonable possibility would depend on its assessment of whether he was lying.
[40] Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234.
The points of contention between the evidence of the complainant and defendant were clearly articulated by counsel during closing submissions and the Judge when summing up. It was clear to the jury that the prosecution was required to prove its case beyond reasonable doubt. It was also clear to the jury that they were not to reason to guilt solely on the basis of preferring the complainant’s evidence over that of the defendant and, by extension, whether the defendant had lied. The Judge also pointed out that the jury was not required to accept or reject the entirety of a witness’ evidence. In these circumstances, there was not a reasonable risk that the jury would have engaged in an impermissible reasoning process upon finding that the defendant had lied.[41]
[41] Dhanhoa v The Queen (2003) 217 CLR 1, [60].
The Screen – Section 13A of the Evidence Act 1929 (SA)
Section 13A of the Evidence Act provides:
Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings
(1) Subject to this section, if—
(a) a vulnerable witness is to give evidence in criminal proceedings; and
(b) the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and
(c) the special arrangements can be made without prejudice to any party to the proceedings,
the court must, on application under this section, order that special arrangements be made for taking the evidence of the witness.
...
(12) If, in a criminal trial, a court makes special arrangements for taking the evidence of a vulnerable witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
The Judge, at the time of the complainant giving evidence warned the jury:
Members of the jury, we have a Mandarin interpreter here so we have to be patient and pay attention of course but you may also notice there is a screen that has been placed between the witness box and the dock and the long and short of this kind of arrangement is you should make nothing of it, it is a common practice these days. Just because we made that arrangement you must not let it affect the weight you give this witness’s evidence and you must not draw an adverse inference against Mr Pelly the accused.
Notwithstanding the terms of section 13A and the first warning given by the Judge, the prosecutor, in his address, made reference to the screen and its adequacy as part of a submission in support of the complainant’s credibility. The prosecutor informed the jury as follows:
A woman who experienced what perhaps us standing and sitting here cannot even fathom, the sheer terror that she would have gone through as she lost consciousness. She sat next to him in court behind a screen that was barely covering the accused when he was standing, courage I suggest is shown in different areas of life but you might take the view that she was courageous in coming here an telling her story. I suggest the easy option would be to have not bothered.
The purpose of the prosecutor’s submission was to have the jury consider the complainant’s credibility was enhanced by the circumstances in which she was prepared to give evidence. The necessity for a screen was linked with the suggestion that the complainant had reason to be fearful of and intimidated by the defendant. The remarks of the prosecutor were inappropriate and unfair.
In his summing up, the Judge repeated the substance of his warning as follows:
I remind you again as I did at the time she first gave evidence that the arrangement of placing the screen between her and Mr Pelly is commonplace in our courts these days so that you must not draw any inference adverse to Mr Pelly, and you are not to allow that to influence the weight to be given to the evidence of Monica.
The problem that arose is that the Judge did not direct the jury’s attention to the inappropriateness of the prosecutor’s comment. The Judge, in his summing up invited the jury to keep in mind the points that the prosecutor had raised with them. In my view, a clear direction from the Judge was required that the submission of the prosecutor concerning the screen should not have been made and that the jury should have no regard at all to that submission.
Conduct of the Prosecutor
The defendant submitted that the prosecutor, in a number of ways, and in breach of his duty as a prosecutor, created circumstances of gross unfairness and prejudice to the defendant in the trial. One complaint concerned intemperate and inflammatory language used by the prosecutor as well as an overzealous approach to the case. Another complaint concerned wholly inappropriate remarks the prosecutor made about the complainant’s courage in coming to court, particularly in the circumstance of the presence of screening between the complainant and defendant. A further complaint related to the way in which the prosecutor attributed to the defendant an allegation as to the complainant’s motive to lie and then the debunking of the allegation in a manner that enhanced the credit of the complainant. Other issues on the appeal involving what were said to be errors of the Judge in summing up were said to be compounded by the unfairness and prejudice occasioned by the prosecutor’s conduct. It was said that the Judge’s directions were wholly inadequate to address the unfairness and prejudice that arose, such that the verdicts should be set aside.
At the outset, it is relevant to observe that the prosecutor’s remarks must be viewed together in the context of the trial as a whole. To consider them separately is to ignore their cumulative effect – it is the overall impression of the prosecution address which must be considered.
The role of the prosecutor was discussed in Alister, where Murphy J observed:[42]
Duty of the Prosecutor.
In the eyes of the jury the prosecutor is the State and takes on much of its authority and prestige. “The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. The same power and force allow him, with a minimum of words, to impress on the jury that the government’s vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he [or she] is guilty”: Hall v. United States. Respect for the office of prosecutor reflects confidence in the system of justice and induces the jury to regard the prosecutor as unprejudiced and impartial. Therefore, the prosecutor must refrain from doing anything which might improperly influence the jury and deny the defendant a fair trial. “It is not the duty of prosecuting counsel to secure a conviction ... [his] duty ... is to present to the tribunal a precisely formulated case for the Crown against the accused and to call evidence in support of it ... the prosecutor is fundamentally a minister of justice...”: Christmas Humphreys, “The Duties and Responsibilities of Prosecuting Council” [1955] Crim. L.R., pp. 739, 740, 74l.
[Footnote omitted. Emphasis added.]
[42] Alister v The Queen (1984) 154 CLR 404, 429-30.
In Tran, the Full Federal Court set out the duties of the prosecutor as follows:[43]
It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory, or over-zealous in nature. In opening for the Crown it is highly undesirable to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury. In R v R [1998] 3 VR 580, Tadgell JA observed that it was “no part of the duty of counsel for the Crown to excite passion”. In R v M [1991] 2 Qd R 68 a conviction was quashed on the ground that the prosecutor in his address to the jury had so far exceeded the bounds of proper comment and submission that the effect could not be, and was not, repaired by the judge’s summing up. This conduct on the part of the prosecutor constituted a serious irregularity in the trial. See also McCullough v The Queen [1982] Tas R 43; R v Bazley (1986) 21 A Crim R 19 at 31; R v Pernich (1991) 55 A Crim R 464 and R v R [1998] 3 VR 580.
[Emphasis added.]
[43] Tran v The Queen (2000) 105 FCR 182, [132]; cited with approval in R v Kostaras (No 2) (2003) 86 SASR 541.
Libke concerned a particularly hostile cross-examination by the prosecutor.[44] The High Court considered the role of defence counsel and the trial judge in addressing inappropriate conduct by the prosecutor. Kirby and Callinan JJ said:[45]
[44] Libke v The Queen (2007) 230 CLR 559. Extensive extracts of the transcript are set out in the joint judgment of Kirby and Callinan JJ.
[45] Libke v The Queen (2007) 230 CLR 559, [35].
The role of prosecuting counsel is not to be passive. He or she may be robust, and be expected and required to conduct the prosecution conscientiously and firmly. Because a criminal trial is an adversarial proceeding, there is at least the same expectation of defence counsel. The obligation of counsel extends to the making of timely objections to impermissible or unacceptable questions and conduct. But it is also the duty of the trial judge to make appropriate interventions if questions of those kinds, capable of jeopardising a fair trial, are asked. The duty of the trial judge is the highest duty of all. It is a transcendent duty to ensure a fair trial.
[Emphasis added.]
Hayne J said:[46]
[46] Libke v The Queen (2007) 230 CLR 559, [72], [76]-[77].
It is not for the judge to attempt to remedy the deficiencies of a party’s case. As was pointed out in Whitehorn, and earlier in Richardson v The Queen, the judge will frequently lack the knowledge and the information that would be necessary to making a decision about whether and how any deficiency would be remedied. But it is for the judge to “hold the balance between the contending parties”. It is for the judge to ensure that the trial is conducted fairly.
...
It is important to notice that no objection was made at trial to the questions that the trial prosecutor put to the appellant. In particular, it was not said that any question, or series of questions, was confusing or oppressive. None was said to be harassing or repetitive. Failure to object to the questions at trial does not bar the appellant from complaining, on appeal, that the trial was unfair. Not least is that so because it must be recognised that counsel for an accused person may well hesitate before objecting to a line of questioning put in cross-examination of the accused, lest it appear to the jury that counsel feels a need to protect the witness. But responsibility for deciding whether objection should be taken to the way in which a question is put to a witness, or to the conduct of opposing counsel, is a responsibility that rests primarily with counsel, not with the judge. And where, as here, the cross-examination was interrupted by an adjournment, it is open to counsel for an accused to make any necessary protest in the absence of the jury and without further interruption of the cross-examination. But no such objection or protest was made in this case.
Where, as here, no objection was taken at trial, but it is said on appeal that the examination of the appellant was unfair, it is important to examine carefully what has happened at trial to see in what respect there is said to have been an unfairness.
[Footnotes omitted. Emphasis added.]
Heydon J expressly agreed with Hayne J and added:[47]
It was open to counsel for the accused to object to the questions criticised above, but there was no objection. He could well have judged that it was prudent not to do so. However, the permissibility of questioning of the type criticised in this case does not depend solely on whether there are objections from counsel representing the party calling the witness. “The failure of counsel to object does not … give Crown counsel carte blanche …” Trial judges have a responsibility independently of objections to prevent this type of questioning being employed. “If counsel begin to misbehave [the trial judge] must at once exert his authority to require the observance of accepted standards of conduct”. Here the trial judge occasionally intervened to control the witness’s answers, but never to control counsel’s questions.
[Emphasis added.]
[47] Libke v The Queen (2007) 230 CLR 559, [133].
These authorities set a high standard of prosecutorial conduct and demonstrate that a failure to meet this standard, particularly if combined with a failure by the trial judge to give directions to address the prosecutor’s conduct, may give rise to a miscarriage of justice, notwithstanding a failure to object by defence counsel.
On the appeal, the defendant submitted that the prosecutor failed to act in accordance with the guidelines published by the Director and with the authorities that address the proper conduct of a prosecutor.[48] It was said that the prosecutor used intemperate and inflammatory language during the course of the trial, in particular when cross-examining the defendant and when addressing the jury. It was contended that the prosecutor was overzealous. Specific complaints were directed to, inter alia, the prosecutor’s emotive summary of the complainant’s evidence, including the earlier extracted references.
[48] Director of Public Prosecutions South Australia, Statement of Prosecution Policy & Guidelines (October 2014) <>
Further examples of inappropriate comments are as follows:
I also suggest [Monica] was courageous in coming here and telling you about it. She was sitting a few metres from a man who, on the prosecution case, raped, strangled her and disposed of her like a worthless item.
...
I now move on and deal with the accused’s evidence. When he gave evidence the smugness and arrogance was written all over his face, he treated this case as if it is a joke. You remember his demeanour yesterday. There can be no mistaking it, it is a matter for you what you make of it, did he appear genuine, would you trust him?
In my submission he was lying through his teeth and the implausibility and fancifulness of his account was reflected in every answer through his facial expression. He could barely believe his own story, couldn’t keep a straight face to the bold-faced lies he was taking. He wasn’t being honest, if he can’t take his own story seriously why should you?
Bear in mind the accused had the advantage of knowing every piece of the prosecution evidence before this trial came up; did he try to fit up a story, is that why his explanation seems a little too planned?
The Director contended that, notwithstanding a failure to object by defence counsel, the trial Judge should have intervened and provided directions to specifically address the impugned comments. Insofar as the Judge gave general directions, for example about the use of a screen and the right to silence, counsel for the defendant said that these were not sufficient to address the prejudice caused by the particularly hostile approach of the prosecutor at trial. Further, it was argued that, in his summing up, the Judge referred to the prosecutor’s submissions in a manner which suggested they were permissible. A relevant example of the Judge’s summing up follows:
[The prosecutor] then turned his attention to Mr Pelly’s evidence and argued before you that Mr Pelly presented as a smug and arrogant person.
The appellant submits that in these passages the prosecutor expresses his own opinion as to the demeanour of the appellant and how he was treating the case. He argues the use of the phrase “it is a matter for you what you make of it” does not detract from the fact that the prosecutor is giving the jury his assessment of the appellant and permitting no argument as to his interpretation of the appellant’s demeanour by adding “there can be no mistake”.
The appellant says that despite the prosecutor asserting “he treated this case as a joke”, on no occasion was it put to the appellant that he was treating the case as a joke. I disagree. During cross-examination, the prosecutor, on two occasions, referred to the appellant either smiling or laughing. The clear inference from this cross-examination is the suggestion that the appellant was treating the case as a joke:
QIf Monica had attended at the room and she says she’s not up for anal, you would have let her go.
AShe would have been back out the door.
QYou wouldn’t have strangled her and raped her.
ANo.
QYou’re smiling, do you find that funny.
ANo, I don’t. It never happened, so.
…
AI said ‘That’s all I have left’.
QWhat did she say to that.
AShe wasn’t happy at all.
QYou are laughing when you answer that question, is that humorous to you.
ANo, it’s not.
QWhy are you laughing, do you find these injuries funny.
ANo, they’re not funny.
QWhy are you laughing.
AI’m not really laughing.
QWhy are you smirking in the witness box. Do you think it’s funny what you did to her.
ANo, it’s not funny at all.
QYou think rape and strangling is funny.
AThere was no rape and no strangulation.
The cross-examination was not objected to and, in her final address, defence counsel said to the jury:
My friend when he was discussing with you Mr Pelly’s demeanour in giving evidence suggested that he was smiling and he seemed to think the whole thing was a joke. It’s a matter for you ladies and gentlemen, but you had a good opportunity to assess Mr Pelly, the way he expresses himself in conversation and you’re also well aware of the subject matter that he was talking to you and to us, a load of strangers, about. Again, while it’s a matter for you you might think that this smiling might equally have been due to a sense of embarrassment because you might think that Mr Pelly was clearly not blind to the fact that the factual matters he was discussing with you and the activities that he engages in are the type of activities that can attract strong moral judgment from people.
Further, it would appear that defence counsel made a deliberate forensic decision to rely on the appellant’s demeanour during the robust cross‑examination of him by addressing the jury:
… did he seem to be a man with an aggressive streak, a man who was easily riled in circumstances where you might think that some of the cross-examination from the prosecutor might be viewed as particularly provoking.
I agree that the comment asking the jury whether they would trust the appellant is inappropriate. The appellant complains that no corrective direction was given by the trial Judge who repeated the submission of the prosecutor by saying in his summary of the arguments of counsel:
[The prosecutor] then turned his attention to Mr Pelly’s evidence and argued before you that Mr Pelly presented as a smug and arrogant person.
As conceded by the respondent, the remark “the smugness and arrogance was written all over his face” may have made too much of the appellant’s demeanour. However, I consider, bearing in mind Vanstone J’s summary of a jury’s ability to distil evidence in [157] above, having regard to the overall trial, the jury were properly directed regarding the assessment of witnesses and would not have been diverted from their proper task.
(i) “In my submission though his account about the strangulation is complete nonsense so self-defence doesn’t get off the ground if you reject his account.”
The appellant submits that this submission should be considered in conjunction with the following cross-examination:
AYeah, she was attacking me, I needed her out.
QLittle Monica was attacking you.
AYeah, she wasn’t happy.
QWere you alright.
AYes.
QShe is a big scary lady, isn’t she. Monica was attacking you and that was the only thing you could do back.
The question “She is a big scary lady, isn’t she” was sarcastic. I do not consider that this use of sarcasm befits the prosecutorial role. Despite this, I do not consider the submission, when considered in the context of the overall trial, unfair.
(j) “In effect he admitted that this morning, he admitted he didn’t need to strangle her and therefore I suggest self-defence is disproved on his own admission.”
During cross-examination, the appellant was asked:
QDo you agree you didn’t need to grab her around the throat.
AYeah, there could have been other methods.
The appellant submits that the fact that he conceded that, in hindsight, there could have been other conduct he could have engaged in to defend himself against the violence of the complainant, does not “disprove” self‑defence “on his own admission”. He contends that this submission misstates the test required by s 15 of the Criminal Law Consolidation Act 1935 (SA), telescoping the subjective requirement for a genuine belief, at the time of the conduct, in the necessity and reasonableness of the conduct in subsection (a) and the objective test of proportionality in subsection (b).
He complains that the Judge gave a proper direction to the jury as to self‑defence, but then went on to read the passage of cross-examination which concluded in the question and answer quoted above stating:
That is not all of the cross-examination but I think that gathers sufficiently without reading too much the tenor of Mr Pelly’s answer and his case on this topic. You may have noticed that [the prosecutor] when he was questioning particularly towards the latter part of that passage he was directing Mr Pelly’s attention to both the first and then the second limbs of the self-defence issue as I directed you.
The submission complained of is a portion of a detailed submission made about the evidence said to give rise to the defence. The prosecutor suggested to the jury that they consider three problems he postulated regarding the evidence relied upon by the appellant as giving rise the defence. He concluded by suggesting that, having regard to these three problems, the appellant had made up a story and that:
In any event as I mentioned before, his Honour will tell you that self-defence requires the accused to believe it was necessary and reasonable to grab her by the throat. This is 110 kilo man, he could not possibly have thought it was necessary to grab her by the throat, a woman who posed no physical threat to him whatsoever I suggest. In effect he admitted that this morning, he admitted he didn’t need to strangle her and therefore I suggest self-defence is disproved on his own admission.
The direction given by the Judge as to the law was correct. The submission considered in the context of the address and the overall trial, in my view, is not unfair.
(k) “In my submission it is your duty as jurors to return verdicts of guilty.”
There can be no doubt that the prosecutor should not have made this concluding submission. The submission, if made at all, should have been to the effect that it is the jury’s duty to convict only if satisfied of the accused’s guilt of the particular charge under consideration beyond reasonable doubt. The concluding statement of defence counsel was:
As I have said, ladies and gentlemen, it is not a matter of which version of events you prefer and I suggest that what Mr Pelly told you in evidence is at least reasonably possible. It’s a reasonable possibility that it happened in that way, at the very least, a reasonable possibility, and if you accept it is at least a reasonable possibility the interaction occurred in that way, then you would have a reasonable doubt and you would acquit Mr Pelly.
The Judge concluded his summing up by saying:
You should also clearly understand that it is not a question of making a choice between the evidence of Monica on the one hand and the evidence of the accused Mr Pelly on the other. Both counsel have rightly pointed this out to you. You do not have to believe that he is telling the truth before he is entitled to be acquitted. Even if you get to the point of rejecting his evidence that does not mean you thereby find him guilty of one or both offences, for you must then step back and consider all of the evidence you are prepared to act upon as it separately relates to each count and ask yourself the fundamental question in respect to each count; has the prosecution proven the case beyond reasonable doubt on the evidence that you are prepared to act upon?
I consider that whilst the impugned submission should not have been made, the issue comes down to a question of whether there is a real risk that the submission deterred the jury from making their own decision because it left them thinking that their obligation was to find the appellant guilty.
Having regard to the entirety of the trial record, in my view, the appellant has not been prejudiced and there has not been a miscarriage of justice. I do not consider that the submission gave rise to any risk that the jury would be deterred from their proper task. I consider that the jury were properly directed by the Judge’s summing up and would not have been left with the thought that they should follow the prosecutor’s submission.[70]
Ground 1.2 – the prosecutor introduced in his closing address further complaint evidence from the witness Dr Dayman
[70] R v Bachra (2010) 108 SASR 204 at [6]-[11] (Doyle CJ).
The submission complained of is as follows:
Then what the defence allegation must involve is that Monica then continued that lie after lying to Rachel, she then lied to Dr Dayman and she subjected herself to an internal anal examination when this is just all a lie, there was no point to it.
This submission, which was not objected to by defence counsel, does not, in my view, introduce further complaint evidence. Rather, the prosecutor properly identifies the defence case as put to the complainant. The appellant gave evidence that the complainant had agreed to anal intercourse and had invented her allegations as a result of a dispute over money. The inference to be drawn from the defence case is that in making the complaint of rape that the complainant had lied to the witnesses she spoke to after she left the appellant. Those witnesses included Dr Dayman, who gave evidence that he had seen the complainant at the Royal Adelaide Hospital on 25 April 2013 as a result of her making an allegation of (anal) rape. Dr Dayman said he examined the complainant’s anus for signs of injury. It was a necessary inference from the fact that Dr Dayman had examined the complainant anally that she maintained her complaint of anal rape.
Ground 1.4 – the prosecutor misstated the evidence from the witness Dr Dayman
The appellant asserts the following statements of the prosecutor overstate the evidence of Dr Dayman to the effect that it was his opinion that the complainant must have had a seizure:
Problem No.3 perhaps the most significant problem. His story fails to explain Dr Dayman’s expert opinion that Monica most likely had a seizure to cause those injuries. In his opinion that was the most likely explanation.
…
Where does the accused’s scenario fit with Monica’s seizure? It doesn’t fit together. Where is her evidence of her unconscious, possibly convulsing, when does the accused say that happened, because she must have had a seizure; you heard Dr Dayman, I suggest that evidence is quite clear.
(The appellant’s emphasis)
The complainant’s evidence was that she suffered a loss of consciousness as a result of being strangled by the appellant and that she felt “very weak and felt like (being) paralysed”.
Dr Dayman’s evidence was that the complainant had bitten her tongue and that this was “most likely” the result of a seizure which he related to a loss of consciousness:
… in the context of the injuries to the neck, in the context of the reported loss of consciousness and I think explanation of a loss of consciousness, a seizure, and Monica biting her tongue is the most likely explanation.
(Emphasis added)
As I referred to above at [176], this was the prosecution’s suggestion regarding the effect of the complainant’s evidence and that of Dr Dayman, and why it was submitted that the defence scenario of self-defence should be rejected.
The prosecutor was correctly stating that, subject to acceptance of the complainant’s description of assault, her injuries and physical sensations were to be explained by a seizure.
Ground 1.5 – the trial Judge failed to deal with the impugned submissions
In my view the Judge’s directions and summing up of the prosecution and defence cases are not open to the construction argued by the appellant.
The jury were directed that they alone were the judges of the facts and were entitled to disagree with any views expressed as to the evidence by counsel or the trial Judge.
The jury were fairly and properly directed repeatedly as to the burden and standard of proof; and specifically warned against “choice reasoning”.
The Judge told the jury that it was for them to decide whether they believed the whole or any particular part of the evidence of any witness and reminded them that, even if they rejected the appellant’s account, it would not follow that he was to be found guilty.
The jury’s focus in this case was whether the prosecution has proved beyond reasonable doubt that the appellant had caused serious harm with intent to cause harm and raped the complainant. It would have failed to do that if the jury accepted his evidence as a reasonable possibility.
It is striking that there was no attempt in defence counsel’s address – which was the proper forum – to answer any of the impugned remarks and no complaint made to the Judge or request that he correct anything.[71]
[71] Libke v The Queen (2007) 230 CLR 559.
Ground 2 – the cross-examination touching on legal privilege
The appellant complains under this ground that the following cross‑examination of him:
QBefore this trial started you had all of the witness statements accessible to you.
AYes, I sure did, yes.
coupled with the following submission in the final address:
Bear in mind the accused had the advantage of knowing every piece of the prosecution evidence before this trial came up; did he try to fit up a story, is that why his explanation seems a little too planned?
unfairly conveyed to the jury that he concocted his story after disclosure and improperly had access to the witness statements.
The portion of cross-examination above continues with:
QYou knew what was in all of the witness statements on the prosecution case.
AReasonably, yeah.
QYou knew your DNA had been found in Monica’s anus.
AI knew that, yes.
QYou knew she had picked you out in a photo book procedure.
AYes.
The prosecution case necessarily involved the suggestion that the appellant had falsely constructed a defence to explain the complainant’s injuries. The appellant would have become aware of the tongue injury and neck injury and the presence of his semen in the complainant’s anus once he was provided with the statements. In my view, the prosecutor, in this line of cross-examination, is exploring not when the appellant “came up” with his explanation but the fact of the “invention”, asserting he had a defence that neatly explained all the injuries. The Judge specifically told the jury not to engage in “choice reasoning”. As submitted by the respondent, the allegation of invention (whether recent or otherwise) invariably arises in all trials where an accused chooses to give evidence that significantly contradicts that of the alleged victim.
The cross-examination about the issue of invention and the submission about it are in my view unobjectionable. They do not have the effect that the jury might more readily accept that the prosecution had discharged its burden of proof because of the suggestion that the appellant had the advantage of the prosecution statements and had made up his defence.
The prosecutor’s submission was not a submission inviting the jury to draw an inference adverse to the appellant on account of his exercise of the right to silence.
Ground 3 – the learned trial Judge failed to properly direct as to the issue of lies
The appellant contends that as cross-examination and the final address raised the issue of him lying, the jury should have been given a Zoneff direction. Significantly, defence counsel did not ask for such a direction.
Whether a lies direction is necessary depends on the facts of each case:[72]
… it is not necessary for a trial judge to give a direction of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested in cross examination or argument, that something an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.
(Footnotes omitted)
[72] Dhanhoa v The Queen (2003) 217 CLR 1 at [33]-[34] (Gleeson CJ and Hayne J). See also Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234.
In the circumstances of this matter, it is my view that there was no risk of miscarriage and no risk that the jury used lies as evidence of guilt. Further, as submitted by the respondent, failure to give a lies direction where the facts demand it is not an error of law but gives rise to an obligation to examine whether a miscarriage of justice has been occasioned by any omission. Significantly, as pointed out by the respondent:
(1)the prosecution had not relied on consciousness of guilt reasoning;
(2)the prosecution case necessarily involved the suggestion that the appellant had lied generally;
(3)any lies to which such directions might have been applied could not have been evaluated independently of the evidence of the offending;[73]
(4)the appellant had made no admissions as to having lied;
(5)the appellant’s denials were extensive such that to highlight each or any potential lie would inevitably have been damaging to the appellant’s case; and
(6)the jury were properly directed as to the burden and standard of proof.
Ground 4 – the trial miscarried owing to the prosecutor’s address which offended against the principles of Palmer v The Queen[74]
[73] R v Bonython-Wright (2013) 117 SASR 410 at [71]-[80] (Kourakis CJ).
[74] (1998) 193 CLR 1.
The passage of the final address about which complaint is made under this ground is:
She’s persisted with this lie because she was angry with the accused because he didn’t pay a bit of extra money and in relation to the strangulation. That must be the defence allegation and I ask you rhetorically does that appeal to your common sense? Or is this case what it seems: this is a woman who underwent a traumatic rape and is here in court undergoing cross-examination because it actually happened and she’s determined to see it through, determined to make the accused accountable for what he did to her, for what he subjected her to?
The appellant argues that the suggested motive to lie and the use of the phrase “or is this case what it seems” and the recommendation that the complainant’s version being what “actually happened” was a clear suggestion that the lack of cogency in the motive to lie strengthened the prosecution case.
The court in Palmer was concerned with comments about the absence of motive. In this matter, the question of motive was raised by the appellant and, as such, the prosecutor was entitled to deal with it rigorously.[75]
[75] R v Kostaras (No 2) (2003) 86 SASR 541 at [111] (Nyland and Gray JJ).
The prosecutor highlighted to the jury that:
… in no way do I mean to suggest your task is to pick which witness you prefer, that is most certainly not your task. The question is always: have the prosecution proved the case beyond reasonable doubt?”
(Emphasis added)
The prosecutor also specifically cautioned against choice reasoning and prefaced the passage complained of with the following:
It’s been quite clearly suggested in this trial Monica made up these allegations and the obvious reason being the appellant didn’t pay her the extra money probably also the fact he strangled her and threw her out of his room. We must bear in mind however that there’s absolutely no onus on the defence to provide a motive about why someone would make something up. They’re not able to look in a person’s mind, they shouldn’t have to. But since one has clearly arisen in this case it is here for us to consider.
(Emphasis added)
As the respondent points out, the prosecutor did not pose any of the questions in the form identified by the appellant at grounds 4.1 to 4.9 of the notice of appeal. The prosecutor was not commenting about an absence of motive to lie. Rather, the prosecutor was testing the motive alleged against the complainant and properly identifying the necessary scope of the lies it was alleged she was telling because of a fight over money. The comments focus on the improbability of what happened between the complainant and the appellant being a dispute about money and are not suggestive of a reversal of the onus of proof.[76]
[76] R v DCC (2004) 11 VR 129 at [73] (Eames J).
The Judge warned the jury on two occasions against “choice reasoning” and specifically directed that a rejection of the appellant’s case could not be used in substitution for guilt.
In the circumstances, and having regard to the entirety of the trial, there is no real possibility that the jury would have reasoned that if they merely preferred the complainant’s evidence the burden and standard of proof would have been satisfied.
Ground 5 – the learned trial Judge failed to direct the jury as to s 15A of the Criminal Law Consolidation Act 1935 (SA) – defence of property
Significantly, no such direction was sought by defence counsel at trial.
The appellant claimed that the complainant reacted to his inability to pay more money for anal intercourse. He contends he was asserting a mixture of defence of self and property and, as such, even though it was not raised by his counsel, it was necessary for the jury to be directed as to the defence of property. Defence of property did not, in my view, arise from the evidence. If it did, it would, by necessity, have been considered in conjunction with the issue of self‑defence. Finally, if the jury accepted the complainant’s account, they rejected self-defence. It follows that they would have rejected any defence of property.
Conclusion
In my view, an objective reading of the whole of the trial reveals that the complainant’s evidence was compelling and it was open to the jury (acting reasonably) to exclude as a reasonable possibility the appellant’s account of what occurred in his hotel room on 25 April 2013. The impugned cross-examination and prosecutor’s remarks would not have created any real risk that the jury would not have given proper consideration to the evidence. When the remarks about which complaint is made are considered in the context of the overall trial, they do not, in my view, carry any risk of a miscarriage of justice. I only found a couple of the remarks to be immoderate. However, when these remarks are juxtaposed in the trial record as heard by the jury, the overall impression is, in my view, such that there has been no miscarriage of justice. Any potentially unfair comment or cross‑examination was, in my view, moderated by the summing up and did not bring about a miscarriage of justice. Again I say, it is striking that no attempt was made to respond to remarks in the appellant’s closing address, nor was any complaint made to the Judge.
Finally, even “if the line from permissible to impermissible … had been crossed, I consider that … the appellant was not prejudiced … and there was not unfairness bringing a miscarriage of justice”.[77]
[77] Gonzales v The Queen (2007) 178 A Crim R 232 at 152 (Giles JA).
I would refuse permission to appeal with respect to grounds 1.1, 1.2, 1.4, 1.5, 2, 3, 4 and 5. I would dismiss the appeal with respect to ground 1.3.
PARKER J: I agree with the reasons of Bampton J and the orders that she proposes.
While some of the remarks made by the prosecutor were inappropriate and ought not to have been made, I am satisfied that when considered in context the effect of the summing up was to ensure that the jury was not deflected from its task.
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