R v PLK
[1999] VSCA 194
•30 November 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 31 of 1999
THE QUEEN
v
PLK
---
JUDGES: TADGELL, CHARLES and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 20 July 1999 DATE OF JUDGMENT: 30 November 1999 MEDIA NEUTRAL CITATION:
[1999] VSCA 194 (1st Revision – 8 February 2000)
---
CRIMINAL LAW – Incest – Multiple counts – Evidence of uncharged acts – Consequences of admission of such evidence – "Bolster rule" – Propensity – No direction on charged acts – Motive to lie – Insufficient direction.
---
APPEARANCES: Counsel Solicitors For the Crown Mr P. Faris, Q.C. and P.C. Wood, Solicitor for Mr T.P. Burke Public Prosecutions For the Applicant Mr P.G. Priest, Q.C. and Christopher Traill & Mr M.J. Croucher Associates
TADGELL, J. A.:
I have had the advantage of reading in draft the reasons prepared by Buchanan, J.A. I respectfully agree with his Honour, and substantially for the reasons he assigns, that the grounds of application for leave to appeal against conviction, other than ground 5, should fail. His Honour would uphold ground 5, dealing with the matter of the complainant's motive to lie. As to that, I have formed a different view.
This case, unlike Palmer v. The Queen (1998) 193 C.L.R. 1, was not one in which the applicant had been asked in cross-examination whether he could suggest a reason why the complainant should lie. The question of the complainant's possible motive to give false evidence against him was, therefore, not one with which the applicant had to grapple in the witness box. It was nevertheless a question with which the jury were taxed by counsels' final addresses, reflected in the judge's charge. That is to say, it was a question the jury were invited to consider even though the applicant himself was not.
Two considerations arise out of ground 5. The first is whether a miscarriage resulted from the reference in the final address for the Crown to the question of the complainant's motive to lie. The second was whether the judge should have given the jury a specific direction with respect to that question.
As to the first consideration, it was contended in this Court for the respondent that the prosecutor had been entitled to comment on the motive or absence of motive of the complainant to make false accusations against the applicant because defence counsel had made the complainant's motives an issue in the case. It is true that counsel for the applicant had, in a brief opening address and in his final address, contended that the complainant was a liar. That was a necessary ingredient of the defence case because the applicant had always flatly denied all of the charged offences. Moreover, defence counsel relied on the complainant's concession that she had told an earlier lie in connection with the conduct alleged against the applicant upon which count 1 was founded. The circumstances on which counsel relied were unusual and deserve to be related.
In December 1984, after her parents were divorced and when she was aged about 12 and in the custody of the applicant, the complainant made a statement to the police alleging sexual impropriety by him towards her. This was the conduct supporting count 1. After she made that statement the complainant was removed by authority from the applicant's custody to Allambie Children's Home and ultimately, after a hearing in the Children's Court, placed in the custody of her mother. According to the complainant's evidence in chief, she then found that she could not tolerate her mother's paramour or her ménage and agreed with the applicant to go back and live with him upon his promising not to abuse her again. The complainant swore that, in order to be able to return to her father, "I had to tell the social worker that I was lying … about the abuse". Then, having told the social worker who had been assigned to her that she had lied in her 1984 statement, and that she was withdrawing her allegations against the applicant, the complainant did return to his custody. It was put to the complainant in cross-examination that her statement made to the police in 1984 had indeed been untrue, as she had told the social worker, but this the complainant denied. It was also put to her in cross-examination that she made the 1984 statement "because you wanted to get away from your father and go back to your mother". This the complainant also denied. All this, as I follow it, laid the basis for a submission by defence counsel to the jury that the complainant was an admitted liar: she had necessarily lied either to the police in 1984 or later to the social worker. The complainant was also cross-examined to the effect that she rebelled against her father because "you found that your wings were being clipped". This, too, she denied.
The prosecutor evidently expected (understandably) that the jury would be invited by defence counsel to conclude that the complainant had lied in the 1984 statement and had had a motive to do so – that she wanted to get away from her father and live with her mother – and a similar motive (in reverse, as it were) later to tell an admitted lie to the social worker.
In the event defence counsel in his address, as I follow it, did not put the question of motive to lie in the 1984 statement quite so starkly as the prosecutor had anticipated. Defence counsel did, however, leave squarely for the jury the question whether the complainant had lied in what she told the police or when she said to the social worker that what she had told the police was untrue. In the context of the prosecutor's preceding address, there was realistically no need for defence counsel to labour that aspect of the issue of the complainant's motive to lie. He did, however, refer to "the strictness that was applied to her lifestyle" as affording a motive for her to lie in relation to the conduct charged in counts 2 to 7, even though there was no evidentiary basis for it.
The applicant gave no evidence with respect to his belief of any motive in the complainant to lie. He was not cross-examined about it, nor could he have been with propriety having regard to Palmer's Case. It was submitted for the applicant in this Court that a miscarriage of justice arose from the prosecutor's addressing the jury on the question, and that it was a more serious case than would have arisen had the applicant been cross-examined about it, since the first opportunity he had to answer the submission was in his counsel's final address.
In the circumstances I should hesitate to say that the prosecutor was wrong to have referred to the question whether the complainant had a motive to lie or that, if objection had been made, the judge should have stopped the prosecutor from referring to it. Clearly enough, the question of the complainant's motive to lie arose at the trial in the first place out of defence counsel's putting to her in cross- examination that the 1984 statement was false and that she made it "because you wanted to get away from your father and go back to your mother". This allegation was, of course, one which the applicant was entitled to make through his counsel; but there cannot, as it seems to me, be a legitimate complaint that the prosecutor took up the point and invited the jury to reject it, as the complainant herself had done in her evidence. The position is little different in effect from that considered by this Court in R. v. DJT [1998] 4 V.R. 784. There, counsel for the accused man had sought to undermine a complainant's credibility by attributing various motives to her and the accused was himself cross-examined about what had been attributed. Brooking, J.A., at 789 observed that –
"The applicant, having chosen to raise the matter, as was his right, cannot complain that he was cross-examined about the motive which he had, both in his evidence and by his counsel, attributed to the complainant. The decision of the High Court in Palmer v. R. makes this clear."
The principle of this observation is in my opinion of equal application in the present case.
I turn to the second consideration raised by ground 5 – whether the judge's failure to give a specific direction resulted in a miscarriage. By way of exception to the judge's charge the prosecutor referred to her final address, in which she claimed to have "covered" "the question of motive to lie" "quite a lot", and suggested in effect that a direction along the lines of that given by the trial judge in the case of Palmer should be given. The learned judge observed that "… here a motive has been put forward", to which the prosecutor answered "… that's right, but the motive could be wrong. My understanding of the authorities … was that if the question is raised then the jury should be told that even if a motive has been put, there may be another motive, it's not for the accused to necessarily know or to prove a motive". Defence counsel, when the judge sought his attitude to the matter, said "I'm content and I have nothing to suggest that you should go further in relation to the suggestion of your Honour dealing in any further way with motive. I don't believe that it requires any further direction from your Honour". The judge responded: "I think it's more likely to confuse them now …" Buchanan, J.A. has taken the view, in the light of that exchange, that there would have been no redirection, even had defence counsel sought one together with the prosecutor. With respect, I do not find it possible to speculate whether a submission from defence counsel seeking a re-direction would have persuaded the judge to give a Palmer direction, for one cannot know what might have been said in support of it. For all one knows, defence counsel, had he been keen to induce the judge to give a specific direction, might have made a submission of the kind that was made on behalf of the applicant to this Court, and it might have persuaded him. It was put to us that the reasoning of the majority of the High Court in Palmer supported the giving in this case of a direction such as that which was given in the trial of Palmer, and this even if the question of motive to lie was one first raised by the defence. Moreover, we were referred for the applicant to the unreported decision of this Court in R. v. Hilsley [1998] VSCA 143, 17 December 1998, in which Ormiston, J.A. (with whom the Chief Justice agreed) said in an obiter dictum at [24] –
"… it has been held, and approved by the majority in Palmer … that the judge must give an appropriate warning by way of direction even if no direct question as to the absence of motive has been put, whenever there have been questions as to specific motives to lie which the jury are being asked to reject."
Had that passage been cited to the learned trial judge in this case it is entirely probable, I should think, that he would have taken it to require a direction of the kind for which the prosecutor contended. Counsel for the respondent in this Court submitted, however, that it must be presumed that defence counsel at the trial not only considered that a further direction on the topic of motive to lie was not required, but also that any further direction would be forensically disadvantageous.
I should not be prepared to say that defence counsel did not advisedly refrain from joining the prosecutor to seek a direction on the matter of motive to lie. That might not necessarily be fatal to ground 5, however, if the passage from Hilsley that I have quoted is to be taken at its face value. The passage is capable of indicating, on one view of it, that the majority of the High Court in Palmer approved a decision or decisions that an appropriate warning must be given by way of direction to the jury "whenever there have been questions as to specific motives to lie which the jury are being asked to reject". I am, with respect, not able to find in the joint majority reasons for judgment in Palmer, or in any of the authorities referred to in the relevant parts of those reasons, support for such a view of the quoted passage. Ormiston, J.A. in Hilsley referred in particular to paragraph 10 of the joint reasons in Palmer, and appears to have discerned from it, in particular, support for what is said in the passage I have quoted. It is useful to set out paragraph 10 in full, thus –
"It is necessary to distinguish between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie. The distinction was referred to in the context of a criminal trial by Hunt CJ at CL in another passage from his judgment in Uhrig (unreported: Court of Criminal Appeal (NSW), 24 October 1996, at 16-17:
'What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all.'"
I offer the following comments about paragraph 10 of the joint reasons in
Palmer –
(a) The New South Wales cases of R. v. F. (1995) 83 A.Crim.R. 502 and R. v. E. (1996) 39 N.S.W.L.R. 450, referred to by Hunt, C.J. at CL, (and the Queensland case of R. v. G. [1994] 1 Qd.R. 540) were apparently approved in principle by the majority in Palmer, together with R. v. Uhrig. The view that had been taken in these New South Wales and Queensland cases was preferred to that which had been taken by Callaway, J.A. in R. v. Rodriguez (1997) 93 A.Crim.R. 535 and by this Court when the case of Palmer was before it.
(b) The first sentence of the passage from the reasons in Uhrig above set out, and apparently approved in Palmer, recognises the permissibility of the course the Crown took in the present case – challenging the validity of an asserted motive for the complainant to lie.
(c) The "distinction" referred to in the penultimate sentence of the passage quoted from Uhrig is, as I read it, the distinction referred to in the first and second sentences of paragraph 10 of the joint judgment in Palmer. The necessity referred to in the penultimate sentence of the passage quoted from Uhrig is for the statement of that distinction, not for a direction of the kind recognised earlier in the passage as being appropriate "in many such cases".
I do not derive from what was said in Uhrig or in Palmer or elsewhere support for a mandatory direction (of the kind that was given at trial in Palmer's case) "whenever there have been questions as to specific motives to lie which the jury are being asked to reject", irrespective of the circumstances in which the questions arise.
The passage quoted from Hilsley is no doubt to be read and understood in its context. It was a case, somewhat like Palmer, in which there had been cross- examination of the accused as to his knowledge of any motives of the complainant and another Crown witness to lie about allegations against him; and the prosecutor in his final address advanced argument in support of the credibility of those witnesses by asserting their absence of a motive to lie. When the Crown elicits from the accused a statement of a specific motive of a Crown witness to lie, and then invites the jury to reject it, an appropriate direction ought to be given to the jury, in the light of the decision in Palmer, if a miscarriage of justice is to be avoided. Without such a direction the jury might be tempted in such a case to accept the evidence of the Crown witness as true unless the accused offers an acceptable reason why it should be rejected. I should understand the quoted passage in that way. If the passage proposes that, whenever any specific motive to lie is offered by or on behalf of the accused, the judge must necessarily give a Palmer warning I respectfully dissent from it.
It was in my opinion, therefore, not inevitable that a Palmer direction should have been given in this case in order to avoid a miscarriage of justice. Defence counsel having had the opportunity to seek one and specifically declined to do so, it cannot now be said that a miscarriage was produced by the judge's failure to give one.
I would dismiss the application for leave to appeal against conviction. Since this conclusion is not shared by the other members of the Court, and there is to be a re-trial, I have no need to consider the application for leave to appeal against sentence.
CHARLES, J.A.:
I have had the advantage of reading in draft the reasons prepared by Buchanan, J.A. I respectfully agree with his Honour and substantially for the reasons given by him that the application for leave to appeal against conviction should be upheld on ground 5. I add the following comments of my own.
In Palmer v. The Queen (1998) 193 C.L.R. 1, a majority of the High Court decided that in the circumstances of that case there had been a risk of a miscarriage of justice resulting from a series of questions put by the prosecutor to the accused in which the accused was asked whether he could suggest any reason why the complainant would invent allegations against him, and he was unable to suggest such a reason. Their Honours took the view that, the question being irrelevant to any issue in the case, it should not have been asked. The complainant's account gained no legitimate credibility from the absence of evidence of motive, the correct view being that the absence of proof of motive was entirely neutral (Palmer at 9).
The question "Why would the complainant lie?" has been said to be of great practical importance in criminal trials, and, while often left unspoken, usually hovers over cases of this nature; see F, (1995) 83 A.Crim.R. 502, at 511-512 per Gleeson, C.J., speaking for the Court of Criminal Appeal of New South Wales. But it is ordinarily irrelevant that the accused has no knowledge of any reason why a complainant should make up the allegations (R. v. Hilsley [1998] VSCA 143, per Ormiston, J.A. at [24]). Especially when the case is "oath against oath", 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, as Brennan, C.J., Gaudron and Gummow, JJ. observed in Palmer at 7. Their Honours (at 8-9) expressly approved the reasoning of Sperling, J. in R. v. E (1996) 39 N.S.W.L.R. 450, at 464, that to ask such a question is to invite the jury to speculate concerning unproved facts and is unfair to the accused. But even though the question is irrelevant and ought not to be asked, their Honours said, at 9, that a firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry. In R. v. Costin [1998] 3 V.R. 659 at 668, an appropriate form for such a direction was suggested.
In Palmer, the accused had been asked the offending question at the end of a lengthy cross-examination, but in circumstances where the defence had first raised the issue, because the complainant had herself been asked in cross-examination "This is some sort of pay-back on him for some indiscretion he doesn't even know about, isn't that right?" (193 C.L.R. at 5-6). There can be no doubt that the defence is entitled to suggest a motive to lie in the complainant (Palmer at 6-7; R. v. Uhrig, unreported, Court of Criminal Appeal of New South Wales, 24 October 1996, per Hunt, C.J. at C.L. at 16-17). And when such a motive is suggested by the defence, it must equally be open to either counsel or the judge to put arguments to the jury relating to the validity of that motive; see Uhrig at 16-17; Palmer at 9-10.
In the present case, defence counsel in cross-examination of the complainant raised three separate matters which might have suggested that she had a motive to lie, first, that her father had been strict with her and had "clipped her wings"; secondly, that the complainant had lodged two crimes compensation claims in respect of her alleged sexual abuse; and thirdly, that she had lied in respect of her first statement, in 1984, because she wanted to get away from her father and go back to her mother. The jury had also been provided with a copy of the record of the interview conducted by police with the applicant, in which he was asked whether he had any reason why the complainant "might be making these allegations if they didn't happen", to which he replied "Yeah, to hurt me ... to get back at me."
It was therefore to be expected that the prosecutor, in her address to the jury which preceded that of defence counsel, would deal with this issue, and she did so at considerable length but with complete fairness. After warning the jury that the accused did not have to prove anything, and did not have to prove that the complainant had a motive to lie, she several times said to the jury that the complainant might have a motive of which the accused and the jury knew nothing. She then turned to the three matters which had been raised in cross-examination, dealt with them in detail, and put it to the jury that all of those matters were nonsense.
In many, if not most, cases involving charges of the kind here in question, especially where, as here, there is no corroboration and it is "oath against oath", the defence must attempt to find a motive in the complainant for the making of false allegations against the accused. But, as Ormiston, J.A. suggested in Hilsley at par [25], "Questions as to who the jury should believe or disbelieve are questions of fact ordinarily contested with vigour by counsel on each side, well capable of pointing out any weaknesses in the other side's case."
The circumstances relied on by the accused in the present case have been related by Tadgell, J.A., and as his Honour said, they were unusual. The complainant had made and then withdrawn her first complaint in 1984, and, to be able to return to her father, had to tell the social worker that she was lying in her first complaint. It is not surprising therefore that the prosecutor, addressing the jury before defence counsel, dealt at length with the matters alleged in cross-examination which might tend to suggest a motive to lie.
The question then arises whether, in the absence of a direct question having been asked of the applicant in cross-examination "Why would the complainant lie?", there was in all the circumstances a risk of a miscarriage of justice, and whether any, and if so what, direction was called for from the judge.
In Uhrig at 16-17, in a passage already quoted by Tadgell, J.A, Hunt, C.J. at C.L. dealt with a situation such as here occurred, where evidence of a witness vital to the Crown case was in question, and the jury were being invited to reject the motive to lie put forward by the accused. His Honour said that it would, in many such cases, be appropriate for the judge to give certain directions then set out. This passage was quoted with apparent approval in the joint judgment in Palmer at 9-10. The approach of Hunt, C.J. at C.L. was taken by Kirby, J. at 38-39 to be common ground in the argument in Palmer, but was in any event accepted by his Honour as logically correct at 39. These passages no doubt led Ormiston, J.A. to the obiter dictum in Hilsley at [24] which Tadgell, J.A. has quoted.
I am, with great respect, inclined to agree with Tadgell, J.A. that nothing said in Uhrig or Palmer lends support to the view that in every case in which the jury are being asked to reject a specific motive to lie on the part of a complainant in a case such as the present, the judge must give the jury a direction of the kind suggested by the majority in Palmer at 9. The expression used by Hunt, C.J. at C.L., and apparently approved in Palmer at 9-10 and 39, is that "In many such cases where the evidence of that witness is vital ... it would be appropriate" to give such directions.
The present case is, in my view, one in which such a direction was unquestionably appropriate. The complainant's evidence was uncorroborated. The question whether she had a motive to lie had been made a significant issue by the unusual circumstances of the case, the cross-examination of the complainant, and the entirely understandable emphasis placed on the issue by the prosecutor in her endeavours to show that the motives suggested by the defence were nonsense. Approximately one quarter of the prosecutor's address to the jury was in fact devoted to this issue. In my view a firm and clear direction was then called for, carrying the authority of the judge, to prevent a miscarriage of justice.
When the judge addressed the jury, in the penultimate paragraph of the charge, his Honour said –
"Essentially the Crown says this, that you should believe [Miss K]. Why should she want to go back to her mother if she was happy with her father? There is no real evidence, says the Crown, of any significant restrictions upon [Miss K] that would motivate her to behave in the manner that the defence contends of making false allegations. Indeed, [the prosecutor] says that the motive suggested is simply untenable and nonsense. The Crown says that [Miss K] is a witness that you should accept as a witness of truth and accuracy. The Crown says to you apropos of her first complaint, 'Where would a little girl of her age get the experience to allege what she alleged unless it had happened?'"
Nowhere did his Honour give the jury any such direction as was suggested by Hunt, C.J. at C.L. in Uhrig at 16-17. On the contrary, after quoting the Crown's submission that the suggested motives to lie were untenable and nonsense, his Honour added in relation to the first complaint the question not "why" but "how" could a little girl of her age make up such a story. This was, if I may say so with great respect, not at all what had been put by the prosecutor in her address, for when she dealt with this very point she had said expressly, and very fairly, that it was possible for "a girl going on 12, that she might have known about these things" and that it was possibly within her experience to put allegations of such sexual conduct into a statement.
When the judge completed his charge the prosecutor, I think correctly, took exception to the charge on the ground that the question of motive to lie having been raised, the jury should be given an appropriate direction by his Honour. As she said in taking the exception, she had covered the question of motive to lie in her address "quite a lot". Defence counsel then took no exception, saying he did not believe it required any further direction. Not unnaturally, Mr. Faris for the Crown in this Court placed great reliance on the stance taken by the defence.
If a direction from the trial judge was called for, the absence of any such direction has great significance. In Palmer, Brennan, C.J., Gaudron and Gummow, JJ. put it, at 9, that –
"A complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for the complainant to lie, the standard of proof is to that extent diminished."
In Palmer, their Honours at 10 took the view that the effect of the cross- examination must have been significant. In the present case, the prosecutor had quite properly sought to demolish the defence arguments for suggesting that the complainant had lied, and had done so in detail and at length. The judge had summarized her argument and, with great respect, had given added weight to the Crown case by suggesting that the complainant could not, at her young age, have had the experience to make the first complaint in 1984, unless the complainant was telling the truth, in contrast to the submission actually made by the prosecutor. As Winneke, P. put it, in R. v. Stoupas [1998] 3 V.R. 645, at 654-5, his Honour sent the jury out with this question ringing in their ears. The question could well have operated to distract the jury from their proper function of determining guilt upon probative evidence. The absence of a suitably firm and clear direction from the judge left open the possibility that the standard of proof was diminished and that a miscarriage of justice thereby resulted.
In these circumstances I see little profit in speculation as to why no exception was taken by defence counsel. He may well have thought a further direction on this point forensically disadvantageous for a variety of reasons; it might only have confused the jury (as the judge himself said he thought likely) or added further emphasis to the Crown case. I would rather say that as the necessary direction was not given by the judge, the accused was denied a real chance of acquittal and a fair trial (see BRS v. The Queen (1997) 191 C.L.R. 275, at 295, 303, 310 and 332, and in particular per McHugh, J. at 306).
BUCHANAN, J.A.:
On 18 February 1999 after a trial in the County Court the applicant was found guilty of one count of attempted incest and five counts of incest. He was acquitted of one count of incest. On 25 February 1999 the applicant was sentenced to be imprisoned for a term of 7 years on each of four of the counts of incest, to a term of 5 years on the remaining count of incest and to a term of 3 years on the count of attempted incest. The trial judge ordered a measure of cumulation which resulted in a head term of 12 years’ imprisonment. His Honour directed that the applicant serve 10 years’ imprisonment before he was to be eligible for parole.
All the counts concerned a daughter of the applicant, one of two children of a marriage which ended in divorce on 22 July 1981. The offences were alleged to have occurred between November 1984 and July 1989 when the complainant was between 12 and 16 years of age.
The principal prosecution witness was the complainant. In 1981, after her parents separated, the complainant resided with the applicant, who was then living with another woman. The complainant said that a couple of months after she moved into the applicant’s house, “He started kissing me and then he started with oral and then it led on to penetrational sex.” The complainant said that on 29 November 1984 the applicant took her to a bedroom, laid her on the floor, took off her pants and his pants, lubricated the tip of his penis and tried to penetrate her vagina, without success. That event was the subject matter of the count of attempted incest.
The complainant told a teacher of oral sex with her father and subsequently made a statement to the police about her relations with the applicant. As a result the complainant was placed in a State institution, and then lived with her mother. Shortly afterwards the complainant returned to live with the applicant because her step-father was a violent alcoholic and the applicant promised never again to touch her. Within days of her return to the applicant he penetrated her mouth and vagina with his penis. These events were the subject matter of two counts of incest.
The complainant said in her evidence that after the first acts of incest:
“Things happened regularly. Sometimes twice a week. It would be my big thing to get through the day and not have him touch me. That happened so often that I built up such a wall, that it’s only on special events, or around special events at times like that that has let me remember.”
The complainant proceeded to describe specific acts of intercourse on particular dates. These were the subject matter of the remaining counts of incest.
The applicant seeks leave to appeal against his conviction and sentence. The ground of appeal in respect of conviction argued first and at length was ground 3, which was:
“3. The trial judge erred in his directions concerning the evidence of
uncharged acts, and in particular, in directing that –
(a) the evidence could be used as making the complainant’s ‘allegation more likely to be true’; (b) the evidence could be used as making the complainant’s evidence ‘more credible or believable’.”
The impugned passage in the judge’s charge to the jury was as follows:
“If you accept [the complainant’s] evidence concerning one or more of those uncharged acts, that is if you are satisfied beyond reasonable doubt that it or they occurred, you cannot use that acceptance to reason that the accused is the sort of man who would do the acts alleged in the presentment itself. But you can use it as establishing a sexual relationship that makes [the complainant’s] allegation more likely to be true. Thus, if the evidence of the uncharged act or acts was accepted by you as showing that the accused was inclined to sexual acts with [the complainant], then you might well think that her evidence concerning the particular conduct which is charged against the accused in a particular count of the presentment is the more credible or believable. In other words, it bears upon the likelihood that the offence charged was in fact committed.”
In giving preliminary directions prior to the opening of the Crown case, the trial judge instructed the jury that the evidence of uncharged acts was adduced “in an endeavour to establish the sexual relationship” which made the complainant’s allegations “more likely to be true.”
It was submitted on behalf of the applicant that the trial judge’s directions breached the general rule that a party cannot lead evidence to bolster the credibility of a witness, citing R. v. Turner [1975] 1 Q.B. 834 and Palmer v. R. (1998) 193 C.L.R. 1 at 21-2. In the first case the Court of Appeal held inadmissible evidence from a psychiatrist that the accused, charged with the murder of his girlfriend, was likely to be telling the truth when he said he was provoked by his girlfriend telling him of her affairs with other men and that he was not the father of her expected child. The Court said, at 842, that “in general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up.” In the second case McHugh, J., citing R. v. Turner, described the “bolster rule” as one that “stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness ...”. Counsel for the applicant said that evidence of recent complaint in cases of sexual offences was an exception which proved the general rule. See Kilby v. R. (1973) 129 C.L.R. 460 at 472 where Barwick, C.J. referred to evidence of recent complaint as “having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence.”
Counsel for the applicant expressly disavowed any contention that evidence of the uncharged acts was inadmissible. The evidence was said to be admissible “only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting” (R. v. Vonarx, unreported, Court of Appeal, 15 November 1995, at 12).
The rule excluding evidence which merely buttresses or bolsters the evidence of a witness is limited to the question of admissibility, and has nothing to say to the use which may be made of evidence once it has been admitted. The evidence in the present case was properly admitted because it did not merely bolster the credibility of the complainant; it was also of probative value as to a fact in issue by disclosing the sexual nature of the relationship between the applicant and the complainant. If the jury did find that the relationship between the applicant and the complainant was a sexual relationship, that circumstance rendered more probable the evidence of the complainant as to the charged acts. In my opinion in telling the jury that the evidence of the uncharged acts, if accepted, rendered the complainant’s evidence of the charged acts “more credible or believable” and her allegations as “more likely to be true”, the trial judge was doing no more than describing the logical consequences of considering the evidence. Once admitted, the evidence did bear on the likelihood of the applicant committing the acts with which he was charged.
It has been recognised that although the purpose of admitting evidence of prior misconduct in cases of sexual offences is not to bolster the complainant’s evidence, that is its effect once it has been admitted. Thus in R. v. AH (1997) 42 N.S.W.L.R. 702 at 708 Ireland, J., with whom the other members of the Court of Criminal Appeal agreed, said that once evidence was admitted for the purpose of placing events in their context or revealing the guilty passion of the accused it “... will also necessarily make the complainant’s evidence more credible in relation to the events upon which the charges were based.” Again, in R. v. Beserick (1993) 30 N.S.W.L.R. 510 at 515 Hunt, C.J. at C.L. spoke of evidence of past misconduct led to establish a sexual relationship making the complainant’s allegations “more likely to be true”. See also R. v. Wickham, unreported, N.S.W. Court of Criminal Appeal, 17 December 1991, at 7-8 per Gleeson, C.J.; R. v. Vonarx, above, at 7.
Counsel for the applicant contended that those statements originating in New South Wales and imported into Victoria were a recent heresy. In my opinion however, they do no more than point out the logical consequences of propensity evidence in sexual cases once it has been admitted. Counsel for the applicant said that evidence of a relationship or context was justified because otherwise evidence of the charged acts might appear incredible. If that is so, having admitted such evidence, a trial judge will not err if he tells the jury that the evidence renders the complainant’s evidence of charged acts more credible.
Counsel for the applicant submitted that evidence of past misconduct could only render the complainant’s evidence of the charged acts more credible if the former evidence came from a source other than the complainant. The decided cases reveal no such limitation being placed upon the admissibility of evidence of past misconduct, and once the evidence is admitted, its probative qualities are the same whether the source of the evidence is the complainant or another. See Harriman v. R. (1989) 167 C.L.R. 590 at 630-2 per McHugh, J.
The first ground of appeal was:
“1. A miscarriage of justice resulted from the cross-examination of [a witness] by the prosecutor; and in particular, questions were asked of her to the effect that she had been charged with, and extradited upon, a charge of conspiring to sell Indian Hemp in circumstances where no finding of guilt was ever made against her.”
One of the defence witnesses was a woman who had lived with the applicant from June 1985. She gave evidence of a healthy sexual relationship with the applicant, denied the complainant’s evidence of aspects of the applicant’s life and gave evidence of particular events which tended to rebut the complainant’s evidence. In cross-examination the witness admitted that she had been extradited to New South Wales on a charge of conspiracy to sell Indian hemp. She said that she went to Court, there was a hearing and she was found not guilty. Somewhat confusingly, she also said “I was vindicated. There was no charges laid against me.”
It was submitted on behalf of the applicant that the questions as to the New South Wales proceedings were unjustified, for the prosecution had in its possession a handwritten memorandum stating “It actually looks as if there were no charges.” The cross-examination was said to have been designed to improperly impugn the witness’s credit.
I doubt that the prosecutor asked the questions knowing there had been no charges laid against the witness, for another document in the possession of the prosecution referred to the witness being “processed ... for conspire to sell Indian hemp.” At all events the witness declared that she had been acquitted, and in his introductory remarks to the jury the trial judge told them that only the answers to questions, not the questions themselves, constituted evidence. In my opinion no significant prejudice was caused to the defence case by the cross-examination.
Ground 4 was concerned with the passage from the trial judge’s charge to the jury cited in paragraph 8 above, when his Honour said that if they found the uncharged acts proven, the jury was not to reason that as a consequence the applicant was the sort of man likely to commit the offences with which he was charged. It was contended that the trial judge’s failure to give a like warning in respect of the charged acts was an error that constituted a miscarriage of justice.
In addition to the warning against reasoning from an acceptance of the evidence of the uncharged acts that the applicant had a propensity to commit the charged crimes, the trial judge warned the jury that they were to consider each count separately. He said:
“But it would be quite wrong of you to say that simply because you find the accused guilty or not guilty of one count, then he must be guilty or not guilty of another. Each count must be considered separately in the light of the evidence that applies to it and you must ask yourselves as to each count separately, ‘Am I satisfied by the evidence beyond reasonable doubt that the accused is guilty of this count?’ If yes, you will find him guilty of that count; if no, you will find him not guilty of it.”
When the charge is considered as a whole, in my opinion the jury was sufficiently warned against propensity reasoning whether in respect of charged or uncharged acts. The jury were clearly told to consider each count separately and they were warned against misusing the evidence of uncharged acts in an impermissible manner. A propensity warning is not required simply because two or more counts in one presentment charge the accused with similar crimes against the same victim. See R. v. J. (No.2) [1998] 3 V.R. 602 at 638-43 per Callaway, J.A. The only risk in the present case was of the jury applying the rule of construction expressio unius, exclusio alterius and concluding that as the trial judge limited his propensity warning to uncharged acts, it was permissible for them to reason that because the applicant committed a crime the subject matter of one count, he had demonstrated a propensity that made it more likely he had committed the crimes the subject matter of other counts. I do not consider that was a real possibility. In the present case I am of the opinion that the directions given to the jury were sufficient to warn them that it was impermissible to deduce from misconduct on one occasion that the applicant had a propensity to commit a crime on another occasion.
The final specific ground of appeal was:
“5. A miscarriage of justice resulted from – (a) the prosecution addressing the jury upon the absence of any motive the complainant might have to lie; and
(b) the failure of the trial judge to direct the jury sufficiently or at all concerning the absence of a motive to lie on the part of a complainant.”
In the course of her final address to the jury the prosecutor said:
“Another thing that you can use in trying to see whether you believe that [the complainant] is telling the truth or not, is the question of whether she had a motive to lie ...
So, whatever I say about the motives to lie now, it’s something that you can take into account, obviously, that is, whether you think that there is a motive to lie for that witness ...”
The prosecutor went on to suggest that the motive for the complainant to lie in her statement made in 1997 advanced by the applicant was that the complainant "had had her wings clipped towards the end of the '80s, and she was restricted by her father and that was the reason that she was unhappy and maybe wanting to get back at him." The basis of this suggestion was the following question put to the complainant in cross-examination:
“I suggest to you that in 1988 you found that your wings were being clipped by your father; in other words, he was putting restrictions on your social activities, is that right?”
Defence counsel asked the complainant whether in 1988 she had begun to rebel against her father’s strict treatment, but it was not put to her that the strictness caused her to give false evidence of sexual misconduct on the part of the applicant. In his evidence the applicant advanced no motive to lie on the part of the complainant, although he said his answers to the police were true, and in those answers he suggested the complainant made false allegations to “hurt” him and “get back at him”.
In Palmer v. R. (1998) 193 C.L.R. 1 the High Court considered the effect of the inability of the accused in a trial for sexual offences against a child to suggest a reason why the complainant should invent the allegations. It was held by the majority that the complainant’s account gained no legitimate credibility from the evidence that the accused could not suggest a motive for her to lie, and in the circumstances of the case the asking of the question had such a prejudicial effect that there had been a miscarriage of justice. Brennan, C.J., Gaudron and Gummow, JJ. said at 7:
“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.”
In the present case the applicant was not cross-examined about any motive which the complainant may have had to lie. Instead, the prosecutor in her final address raised and sought to demolish a motive advanced by the applicant's counsel in his cross-examination of the complainant. That course was appropriate. If a specific motive to lie is advanced by the accused, the Crown is entitled to meet it. It was also correct for the prosecutor to tell the jury, as she did, that "The accused person doesn't have to prove ... she's got a motive to lie. She might have a motive to lie that he doesn't know about. She might've a motive to say that none of us know about."
In Palmer v. R. the accused was asked in cross-examination whether he could suggest any reason why the complainant would invent allegations against him. He could not. In the present case the prosecution invited the jury to reject a reason for the complainant to lie advanced by the applicant's counsel. If that invitation was accepted, the jury may have thought the complainant's credibility was thereby enhanced, for no other reason to lie was suggested. The Crown case depended entirely upon the evidence of the complainant. In my opinion the judge ought to have warned the jury against reasoning that rejection of the motive to lie advanced on behalf of the applicant rendered the evidence of the complainant more credible. Instead, the trial judge reiterated the prosecutor's rebuttal of the motive to lie put forward on behalf of the applicant, but said nothing about the consequences of accepting that rebuttal. He said only:
“There is no real evidence, says the Crown, of any significant restrictions upon [the complainant] that would motivate her to behave in the manner the defence contends of making false allegations. Indeed, Miss Carlin says that the motive suggested is simply untenable and nonsense. The Crown says that [the complainant] is a witness that you should accept as a witness of truth and accuracy. The Crown says to you apropos of her first complaint, ‘Where would a little girl of her age get the experience to allege what she alleged unless it happened?’”
I think there was a real possibility that the veracity of the complainant derived support from the jury thinking that, as the only suggested motive for her to lie was not made out, she had no reason to lie, and that possibility caused the trial to miscarry. In my view the possibility was not averted by the warning given by the prosecutor in her address to the jury.
In R. v. Uhrig (unreported, Court of Criminal Appeal (N.S.W.) 24 October 1996) at 31 in a passage cited by the majority in Palmer v. R., Hunt, C.J. at C.L. said of cases where arguments had been put to the jury relating to the validity of a motive to lie asserted in relation to a witness:
"[I]n many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth."
Similarly, in Palmer v. R. Kirby, J. said, at 38-9:
"It was also common ground that, where the accused puts forward, by evidence or submission, a proposition that a witness vital to the Crown case has a particular motive to lie, the judge should direct the jury that, even if they were to reject such motive, that would not mean that the impugned witness was necessarily telling the truth."
In Palmer v. R. the majority of the Court said, at 9:
"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."
In my view there was a substantial risk that the credibility of the evidence of the complainant in the present case was strengthened in the minds of the jury by their rejection of the only motive to lie advanced by the defence, and as that risk was not met by an appropriate direction by the trial judge, the standard of proof was to that extent diminished.
Counsel for the applicant at the trial took no exception to the charge in this regard. However, the matter was raised by the prosecutor at the conclusion of the judge’s charge to the jury. She said that if the question of the complainant’s motive to lie was raised, the jury should be told that even if the motive had been advanced by the accused, there might be another motive and it was not for the accused to prove motive. The trial judge said that he did not propose to say anything further to the jury on the matter. In the light of that exchange, I am of the view that even if counsel for the applicant had added his voice to that of the prosecutor, the result may well have been the same, so that I doubt it can be said that “If the deficiencies in the direction ... had been raised by exception before the learned trial judge, they could have been cured and probably would have been”: R. v. Caine (1990) 48 A.Crim.R. 464, at p.475. See also R. v. Clarke & Johnstone [1986] V.R. 643 at 661-2.
I would grant leave to appeal against the applicant’s conviction, treat the appeal as instituted and heard instanter, allow the appeal, quash the convictions and order that there be a new trial.
- - -
5