Rainbird v Tasmania

[2010] TASCCA 9

[2010] TASCCA 9

COURT:             SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Rainbird v Tasmania [2010] TASCCA 9

PARTIES:  RAINBIRD, Phillip
  v
  STATE OF TASMANIA

FILE NO:  530/2009
DELIVERED ON:  2 July 2010
DELIVERED AT:  Hobart
HEARING DATE:  2 June 2010
JUDGMENT OF:  Tennent, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Procedure – Summing up – Whether comments by trial judge resulted in loss of fair trial for the accused – Relevance of principles in Palmer v R.

Palmer v R (1998) 193 CLR 1; R v E (1996) 39 NSWLR 450, referred to.
Criminal Code Act 1924 (Tas), ss371A and 402(2).
Aust Dig Criminal Law [3162]

REPRESENTATION:

Counsel:
           Appellant:  G A Richardson
           Respondent:  J Hartnett
Solicitors:
           Appellant:  G A Richardson
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 9
Number of paragraphs:  20

Serial No 9/2010

File No 530/2009

PHILLIP RAINBIRD v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  TENNENT J

PORTER J
WOOD J
2 July 2010

Orders of the Court

Appeal dismissed.

Serial No 9/2010
File No 530/2009

PHILLIP RAINBIRD v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
2 July 2010

1. On 4 June 2009, the appellant was found guilty by a jury of one count of rape. The next day, the appellant was convicted of that crime and sentenced to serve a period of 4½ years' imprisonment. On 26 June 2009, the appellant filed a notice of appeal in respect of his conviction. The grounds of his appeal are as follows, namely that:

"The Learned Judge erred in law by making a number of comments to the jury during his summing up which, by implication, invited the jury to consider the question of why the complainant might lie;

The Learned Judge erred in law by failing to re-direct the jury that they should not speculate as to why the complainant might lie when invited to do so by the defence."

1. On the hearing of this appeal, counsel for the appellant narrowed the basis of his complaint of error to a specific paragraph in the transcript of the summing up by the learned trial judge to the jury. The paragraph appears at AB213 commencing at line 11 and is as follows:

"Now if what had occurred was that she had instigated and successfully had sexual intercourse with the accused, what on earth was there for her to complain about? On the accused's evidence this is something that she had done previously with …, and she'd never complained about that. It was something she was enjoying. On the accused's evidence his act of sexual intercourse with her finished happily and with them arranging to meet tomorrow for work, why complain? She's achieving her objectives, but in fact she says 'No she was raped'."

Counsel also pointed out that at trial, once the learned trial judge had completed his summing up, counsel for the appellant sought a re-direction from his Honour about the matter now complained of. His Honour declined to give that re-direction.

1. Counsel for the appellant submitted that what his Honour was in fact saying to the jury in the passage above quoted was, why would the complainant make a false allegation of rape? He submitted that there was no other interpretation of the words, and that His honour was inviting the jury to speculate about the lack of any motive for the complainant to lie and was therefore in clear breach of the principles dealt with by the High Court in Palmer v R (1998) 193 CLR 1.

Palmer's case

1. In this case, Palmer, charged with and convicted of sexual offences in respect of a 14-year-old girl, was asked by a Crown prosecutor in cross-examination at trial whether he could suggest any reason why the complainant should invent the allegations against him. He was subsequently convicted and appealed that conviction. His appeal was dismissed, and he sought, and was granted, special leave to appeal to the High Court. One of the issues that court considered was whether the questioning by the prosecutor was proper. Their Honours Brennan CJ, Gaudron and Gummow JJ said at 7:

"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 and accept the complainant's evidence unless some positive answer to that question is given by the accused."

The court held that "the complainant's account gained no legitimate credibility from evidence that the accused could not suggest a motive for her to lie. In the circumstances of the case, the asking of the question had such a prejudicial effect that there may have been a miscarriage of justice."

1. Their Honours referred at 8 to another case referred to by counsel for the appellant. This was the matter of R v E (1996) 39 NSWLR 450. Their Honours said:

"The propriety of questioning the accused about his lack of knowledge of any reason why a complainant should lie was considered by Sperling J in the Court of Criminal Appeal of New South Wales in R v E:

'[W]e are dealing here with a case where there is no direct evidence of an actual motive to lie, nor evidence from which a specific motive to lie could reasonably be inferred. 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.'

The third observation may overstate the effect of the question in a particular case, especially if the trial judge gives the jury a direction to the contrary. A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry."

1. Counsel for the respondent on this appeal had no argument with the legal principles canvassed by counsel for the appellant. Where her argument lay was in the application of those principles to the present case. In effect, her submission was that those cases had no relevance to this appeal.

Discussion and submissions

1. This was not a case where any question was directed to the appellant about his knowledge of any motive for the complainant to lie. Further, the complainant was not specifically cross-examined about any matter which might have been suggested as a motive for her to lie. The closest it could be said that cross-examination came to this issue was a suggestion put by counsel for the appellant that this was a case of the complainant having had consensual sexual intercourse and then having had second thoughts because it involved her employer.

1. Leaving aside the application of the principles enunciated in Palmer's case, the substance of the criticism of his Honour's summing up by counsel for the appellant was dependent upon its being read as being an invitation to the jury to speculate about why the complainant might make a false allegation of rape. While the words complained of clearly did not contain such a baldly worded statement, counsel for the appellant submitted they could have no other interpretation. With respect, I must disagree.

1. It is important, when considering this appeal, for the summing up given by the learned trial judge to be considered in its entirety. One of the matters his Honour specifically told the jury about was the onus of proof. He confirmed that the onus at all times remained with the prosecution and that the accused had no onus to prove anything, including that the complainant lied or might have had a motive to lie (see AB207 lines 38 – 44).  It is also apparent from a consideration of the summing up that what his Honour did was work through a number of issues. In respect of each, he summarised evidence, related that evidence to the arguments of counsel and gave directions of law where necessary.

1. One of the issues with which he needed to deal was that of "complaint". In this case, the complainant gave evidence of her dealings with a number of people at about the time of and over the hours after the rape. The Crown relied on this evidence as evidence of "complaint". A number of other witnesses also gave evidence of communications with the complainant and their observations of her. This evidence was also relied on by the Crown as "complaint" evidence.

1. The learned trial judge summarised this evidence and at AB212, gave the jury the direction he was required to give by reference to the Criminal Code Act 1924, s371A. That section provides:

"Where, during the trial of a person accused of a crime under chapters XIV or XX, there is evidence which tends to suggest an absence of complaint by the person upon whom the crime is alleged to have been committed or which tends to suggest delay by that person in making a complaint, the judge shall –

(a)  give a warning to the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the crime was committed is false; and

(b)  inform the jury that there may be good reasons why such a person may hesitate in making, or may refrain from making, a complaint."

His Honour then went on to deal with the issue of the credibility of the complainant by reference to what the jury might have thought was a failure to make an immediate complaint. He indicated to the jury, after making reference to some of the evidence, that there were some matters that he needed to give directions about which related to the use to which "complaint" evidence could be put.

1. The first matter his Honour raised with the jury was that the evidence could be used when they came "to consider the truth of the subject matter of the complaints; that is the truth of [the complainant's] allegations." The jury was then told they could use the evidence of complaint having been made by [the complainant] "as relevant to your assessment of her credit".

1. The impugned passage then appears, starting at AB213, line 11. It is clearly an explanation about the way the jury could use the evidence his Honour had just described. Then, at AB213, line 28, his Honour says:

"From the question of complaints I want to take you to the question of lies."

The issue which His Honour then went on to deal with was the admitted lies in the appellant's interview with police, an issue unrelated to a possible question of why the complainant might lie. 

1. Counsel for the appellant submitted that, in effect, the learned trial judge was dealing with a fresh issue when he began his comments at line 11, and that these comments were not a continuation of the directions that he was giving generally in relation to "complaint". Counsel submitted that the comments commencing at line 11 were a separate and clear invitation to the jury to consider the issue of a motive to lie. I disagree with this interpretation of his Honour's comments. In my view, a proper reading of the summing-up by the learned trial judge does not support the characterisation put upon the impugned part of the summing-up by counsel for the appellant. It is, in my view, quite clear that his Honour is continuing to deal with the issue of "complaint" through to AB213, line 26.

1. Counsel's characterisation of his Honour's comments may be said to arise from a misconception about what his Honour was dealing with. His Honour was dealing with the issue of "recent complaint", and, in that context, what evidence was relied on by each party and the use to which it might be put. He was not dealing with any question of motive to lie. The submission by counsel for the appellant also relies on his interpretation of his Honour's words, and not on a reading of what was actually said by his Honour. In my view, his Honour was not, in the impugned passage, inviting the jury to speculate about any motive the complainant might have had to lie.

1. Taken in context, and reading the words as they appear, the comments by his Honour do not in my view contravene any principles flowing from Palmer's case.

1. I should mention one further matter. In his submissions to the Court, counsel for the appellant did not initially address the possible impact of the Code, s402(2). He did not do so because his primary position was that the learned trial judge had erred as he submitted, and the error was of such a serious nature that the appellant had been denied a fair trial. There was, he submitted in those circumstances, no place in this matter for a consideration of s402(2). It was suggested to counsel for the appellant by the Court that he should consider addressing the Court, in the event that the Court found there had been an error by the learned trial judge but, by reason of the characterisation of that error, it was felt there was a need to consider the proviso. Counsel for the appellant and counsel for the respondent both made submissions about the impact, if any, the proviso should have in this case. The submissions of both counsel were directed to the sufficiency or otherwise of the evidence led by the prosecution.

1. I mention the issue of the proviso simply for completeness. Because I am not satisfied that the learned trial judge erred as submitted, the question of the proviso does not arise. I would dismiss this appeal.

   File No 530/2009

PHILLIP RAINBIRD v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
2 July 2010

1. I agree with the reasons for judgment of Tennent J and would also dismiss the appeal.

   File No 530/2009

PHILLIP RAINBIRD v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
2 July 2010

1. I have had the opportunity to read the reasons for judgment of Tennent J.  I agree with those reasons and I would also dismiss the appeal.