UQ v The Queen
[2019] ACTCA 23
•12 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | UQ v The Queen |
Citation: | [2019] ACTCA 23 |
Hearing Date: | 5 August 2019 |
DecisionDate: | 12 September 2019 |
Before: | Murrell CJ, Burns and Wigney JJ |
Decision: | Leave to appeal granted. Appeal dismissed. |
Catchwords: | APPEAL – APPEAL AGAINST CONVICTION – Jury direction – Where the accused was charged with multiple sexual offences involving several complainants – Where the complainants were cross-examined about whether they had motive to lie – Whether the prosecution invited the jury to speculate about whether the complainants had motive to lie – Whether the trial judge failed to give appropriate direction about onus of proof regarding alleged motive to lie – Whether substantial miscarriage of justice. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5531 |
Cases Cited: | Adams v The Queen [2018] NSWCCA 303 BI v The Queen (No 2) [2018] ACTCA 11 South v The Queen [2007] NSWCCA 117 |
Parties: | UQ (Appellant) The Queen (Respondent) |
Representation: | Counsel B Morrisroe (Appellant) M Jones (Respondent) |
| Solicitors Sharman Robertson Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 46 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 25 July 2018 Case Title: R v UQ Court File Number: SCC 226 of 2017 |
The Court
The Appeal
On 25 July 2018, a jury found that the appellant was guilty of 14 sexual offences. The offences related to three complainants: the appellant’s future stepdaughter (KT), his future stepson (LT), and his biological daughter (BQ). The complainants were the children of MI, who was in a relationship with the appellant between 1986 and September 2000. In 1994, the appellant and MI had a second child, TQ.
At the trial, the appellant gave evidence and denied all relevant conduct, including the uncharged acts upon which the prosecution relied as tendency and context evidence.
The complainants were cross-examined about whether they had a particular motive or motives to lie and each denied the proposed motive/s.
The appellant appealed on the ground (or interrelated grounds) that the trial had miscarried because, in closing, the prosecutor had invited the jury to speculate about whether the complainants had a motive to lie, and the trial judge had failed to adequately correct the error in the prosecutor’s address.
Rule 5531
Rule 5531 of the Court Procedures Rules 2006 (ACT) requires leave to argue a ground of appeal concerning a trial judge’s directions in circumstances where no objection was taken to the direction at the time of the trial.
At the conclusion of the trial judge’s directions, no redirection was sought. Consequently, the appellant requires leave to argue that the trial judge’s directions were inadequate.
This Court takes a strict approach to r 5531: see BI v The Queen (No 2) [2018] ACTCA 11 at [110]–[112] and Munro v The Queen [2014] ACTCA 11 at [128]–[130].
However, we grant leave in this case. First, insofar as there is a separate ground of appeal concerning the adequacy of the trial judge’s directions, that ground is inextricably related to the first ground of appeal. Second, a correct understanding of the onus of proof is essential to a fair trial and, in such circumstances, it is often appropriate that leave be granted: see Greenhalgh v The Queen [2017] NSWCCA 94 per Basten JA at [14] and Adams v The Queen [2018] NSWCCA 303 per Campbell J at [138].
The Offences
In summary, the allegations supporting each guilty verdict were as follows.
Offences against KT
Count 1 – the “vodka incident”. Between 23 January and 3 February 1994, the appellant committed an act of indecency upon KT without her consent. When MI was in hospital in connection with the birth of TQ and the appellant was minding KT and LT, he plied KT with alcohol, placed her hand on his penis and used her hand to rub his penis.
Count 2 – the “shower incident”. Between 6 April 1993 and 31 December 1995, the appellant engaged in non-consensual sexual intercourse with KT. When KT came out of the shower, he followed her to her bedroom, talked about sex and then digitally penetrated her vagina.
Count 3 – Between 6 April 1993 and 31 December 1995, the appellant committed an act of indecency upon KT without her consent. When KT was at the appellant’s Fyshwick workplace, he placed a condom on himself, pulled KT onto a mattress on the floor, put KT’s hand on his penis and made her masturbate him until he ejaculated.
Count 4 – the “$50 incident”. Between 31 December 2007 and 1 January 2009 (in March 2008), the appellant committed an act of indecency on KT without her consent. When KT attended the appellant’s home and requested money for groceries, he placed her hand on his penis.
Count 5 – In a continuation of the $50 incident, the appellant engaged in sexual intercourse with KT without her consent by pulling down her track pants and digitally penetrating her. He then gave her $50.
Offences against LT
Count 6 – Between 27 January 1993 and 20 February 1997, the appellant engaged in sexual intercourse with LT, a person aged between 10 and 16 years whom he knew to be his stepchild. He plied LT with Sambuca. While LT was watching television, the appellant removed LT’s shorts and fellated him.
Count 7 – In a continuation of the same incident, the appellant engaged in a second act of sexual intercourse with a person aged between 10 and 16 years whom he knew to be his stepchild. The appellant took LT to LT’s bedroom and fellated him until LT ejaculated.
Offences against BQ
Count 8 – the “sperm incident”. Between 1 January 1997 and 30 September 2000, the appellant committed an act of indecency in the presence of a person under 10 years old. While the appellant and BQ were watching television, he masturbated in front of BQ to the point of ejaculation for the stated purpose of showing her where sperm originates.
Count 9 – Between 1 January 1990 and 30 September 2000, the appellant committed an act of indecency on a person under the age of 10 years. He required BQ to masturbate him.
Count 10 – Between 1 January 1997 and 30 September 2000, the appellant engaged in sexual intercourse with a person under the age of 10 years whom he knew to be his lineal descendant. After instructing BQ how to perform fellatio, he required her to fellate him.
Count 11 – Between 1 January 1997 and 30 September 2000, the appellant committed an act of indecency on a person under the age of 10 years. One day after BQ came home from school, he required her to masturbate him.
Count 13 – Between 1 January 1990 and 30 September 2000, the appellant engaged in sexual intercourse with a person under the age of 10 years whom he knew to be his lineal descendant. He required BQ to perform oral sex on him, and then paid her $20 for doing so.
Count 14 – the “shaving incident”. Between 1 January 2002 and 9 January 2007, the appellant committed an act of indecency on a person under the age of 16 years. During an access visit, the appellant placed his hand down BQ’s pants and on her pubic area, and described the manner in which she should shave the area.
Count 15 – As part of the Count 11 incident, the appellant attempted to engage in sexual intercourse with a person under the age of 10 years whom he knew to be his lineal descendant. After the appellant required BQ to masturbate him, he attempted to insert his penis into her vagina; BQ said that he had inserted it “a little bit but not very far”. She ran from the room, screaming. Count 15 was charged in the alternative to Count 12, which had alleged penile/vaginal intercourse with BQ.
The course of the trial
Opening addresses
As to the reliability of the complainants, the prosecutor stated in his opening address:
Look out for evidence concerning the nature of the relationship between [KT], [BQ] and [LT] and also their mother and father and what level of contact there is between them, with a view to considering whether these events are something that is being made up, either individually or collectively, or whether they are actually recollecting events that happened to them and they are describing events that occurred. Also listen for reasons as to why [KT], [LT] and [BQ] acted in the way they did and why they didn’t necessarily complain immediately …
Defence counsel opened to the jury but did not canvass whether any or all of the complainants had a motive to lie. Defence counsel said:
I’ll tell you where the fundamental difference is … between the prosecution and the defence case. [The appellant] will give evidence that he did not do these things. And I remind you again it’s not for him to prove that he didn’t do them. … You have to assess the credibility of all the witnesses in this trial …
The complainants’ evidence
KT
In addition to the four charged incidents, to support alleged tendencies and/or put the relationship between the appellant and KT into its proper context, the Crown relied on uncharged acts, including KT’s evidence that the appellant had inappropriately touched her body while stating that he wished that she was his wife, and KT’s evidence that the appellant had often walked into the bathroom while she was showering. KT gave evidence that, in 1991, she had complained to a school counsellor and her mother about the fact that the appellant had touched her breasts. No action had been taken.
In cross-examination, the appellant’s counsel questioned KT as follows.
If I suggested to you that there was an occasion in about 1991 where you wanted to go out - you'd be about 14 in 1991 - and [the appellant] had refused to let you go out and you became angry and punched him, do you recall that incident?---No.
And if I suggested to you that you struck him several times with your fists until he pushed you way [sic] on the chest, does that refresh your memory at all?---No.
And if I suggested to you that in 1991 in fact you made a complaint to [a school counsellor] about being touched on the breasts, shortly after this argument with [the appellant], does that refresh your memory?---No, but I know I used to tell her stuff.
What I want to suggest to you - it's a matter of fairness. I have to ask you things and suggest to you whether they did or didn't happen. So for example I've suggested to you about this incident in 1991 where you've had an argument with [the appellant] because he wouldn't let you go out. You were about 14 in - well, you were 14 in 1991. You've become angry with him, you've struck him, he's pushed you away and then you've complained that he's touched you on the breasts. I'm just summarising what I've put to you in the last few questions and, as I understand your evidence, you have no recollection of that incident. Is that fair to say?---Yep.
As a matter of fairness as well I also have to suggest to you things that [the appellant] says did not happen. Now, for example you've said when your younger brother was being born, and I think you gave evidence in the recordings that you said [the appellant] had given you alcohol and gotten you drunk. This was in that second interview you had in 2008. Do you remember telling the police that?---Yep.
…
And in fact it's also fair, isn't it, that between that first interview in 2008 and that second interview in 2008 you'd actually rung [LT], hadn't you?
Is that right?---Sorry, when was that?
Well you had the first interview with police in October of 2008, being 19 October - Sunday, 19 October 2008, and then you came back and spoke to them again in that shorter interview on Monday, 27 October 2008?---Yep.
Okay? Now, when you spoke to them that second time you said - you told them you'd had a conversation with [LT]. In fact you said - and this is answer - question and answer 37, "I've actually - when I've got home from last time," that being the first time you spoke to police, "I rang up my brother and I asked him if he remembered this"?---I can't remember making that phone call to my brother.
And your next answer was - question 38 was just "Yep." The question was actually just "Yep," but the answer you give is, "[LT], my brother. He said he could remember it. He was 11 or 12," … So when you rang up your brother [LT] you asked him about did he remember a night where you say [the appellant] had given you both alcohol. Is that fair to say?---Yep.
But you don't actually remember making that call now. Is that right?---No.
And did you ask him about what else had happened that night? [LT]? Or did you tell him what you say happened that night?---I never discussed anything with [LT] about what [the appellant] did to me.
But you don't actually remember having that conversation with [LT] back in 2008 between those two interviews, do you?---No.
So you can't actually recall what you may have talked to [LT] about back then?---No, but I know I've never discussed what [the appellant]'s ever done to me.
I see?---With [LT]
So again I want to suggest to you that [the appellant] never actually gave you alcohol that night, either the night that your younger brother was born or the night after. Do you agree or disagree with that?---I disagree with that.
…
Did it really happen or is it something you've made up?---No, it happened.
See, what I want to suggest is you've made up that [the appellant] did these things to you. Do you agree or disagree?---Disagree.
…
So if I suggested to you that there was no incident in the shower, nothing where [the appellant] would ever - ever grabbed you or put his fingers into your vagina, you would disagree I take it?---Yes.
…
Just to be clear, I want to suggest to you that he never grabbed you at any stage on the breasts or backside while wearing his dressing gown. Would you agree or disagree?---Disagree.
There was no incident where he watched you in the shower and then pushed you onto a bed and digitally penetrated you. Would you agree or disagree?---He did that.
Now, some time between 1993 and 1995 you say that you went to his workplace … and there was this incident involving him getting a condom out of a drawer - - -?---Yep.
- - - and placing it onto his penis and you being - - -?---Yes.
- - - pulled onto a mattress. I want to suggest to you that that simply never happened. That's something you've made up. Would you agree or disagree?---Disagree.
Now, there's this final incident in 2008 when you said that you went to see [the appellant] and ask him for some money?---Yes.
And again you say that on that occasion he digitally penetrated you and forced you to touch his penis. Is that right?---Yes.
Again, I want to suggest to you that simply never happened. Would you agree or disagree?---Disagree.
…
I want to suggest that you did show up in 2008 and ask for money, but [the appellant] said he couldn't give you any because he simply didn't have any money to give you. Do you agree or disagree?---Disagree.
…
I want to suggest to you that back in 2008, [the appellant] did not give you money. Would you agree or disagree?---Disagree.
…
Well, what I'm asking you is, and suggesting to you, is that [the appellant] didn't take you into the bedroom in 2008, did he?---No, we were in the kitchen and we were walking back from the kitchen through that hallway and there was a picture in the doorway of his room and I was looking at that and he kind of shoved me into his room.
That's what I'm suggesting to you; that he didn't take you into the bedroom at all. Do you agree or disagree?---He shoved me in there.
…
And then it's not until 2016-2017 that you come forward to the police again, is that right?---Yes.
And that's after you've spoken again with [BQ and LT]?---(not transcribable)
I am sorry, the audio just broke up a bit there?---After what they told me.
…
Well, for example, when you are saying you are on the mattress and that [the appellant is] forcing your hands onto his - or one of your hands onto his penis but you don't know what's happened with your other hand?---Yes. There's just parts I just can't remember.
Well, there's parts, I want to suggest to you, that you can't explain because you've realised the lie - - - ?---None of it's a lie.
LT
LT was cross-examined as follows.
… So I want to suggest to you …, that neither of these incidents, in that there was never a time when [the appellant] touched you in a sexual manner or touched your penis in a sexual manner. Do you agree or disagree with that?---I disagree.
…
So just to be clear, I'm suggesting to you that these incidents involving [the appellant] sucking on your penis did not happen. You're making them up. Do you agree or disagree with that?---I disagree with that.
And you're making them up to support your sister, [KT]?---I disagree with what you're saying because I'm not making it up …
BQ
BQ was cross-examined as follows.
… during that interview with police … You said this, "I honestly think it had a big impact on me, that my sister made claims against him and she wasn't believed and I grew up my whole life with my mum telling me that she was a liar and a drama queen," now that was talking about your sister [KT] is that right?---Yes.
And as I understand it, what we can understand from that is that it seems that from a very early age you knew that [KT] had made some sort of complaint about [the appellant]?---So I - from my memory, I was probably about 11 years old. It was only just before we moved to Tasmania that I found out about him doing that to [KT].
All right, but it seems that you were - well, back then, talking about why you didn't necessarily complain about the things that you said were happening to you, is that - - -?---I - I also said that I was - I was coerced into it by somebody that I trusted, being my father. So at the earlier ages, it was blatantly because I was too young to know any different, and once I was 11 and probably brave enough to say something, I just decided there was going to be no point.
So you say that it's only about the age of 11 that you come to appreciate that your sister [KT] has made a complaint about [the appellant], is that right?---Yes.
And you seem to make it very clear in that statement that you - your mother didn't believe what [KT] had said, that's the impression you had?---Absolutely.
So I take it that by that you have a lot of sympathy for [KT] because she'd said something had happened and she wasn't believed?---Yes.
…
Well, from what you've just said, in that you said, "I wouldn't have - I didn't complain because I thought I wouldn't be believed"?---That is one of the reasons, yes.
Okay. And you moved to Tasmania in - when was that, or how old were you? …---I was 11. …I was about to turn 12.
And I think your evidence in that interview was that the last time you recall going to see or visit your father and his girlfriend was about when you were about 14 or 15, is that fair to say?---Yes.
But you're not particularly sure about that?---No, I can't remember my exact age that I stopped visiting them.
But certainly your evidence was that you told a friend of yours in Tasmania that things had happened to you, and then you described in that interview having an argument with her where she said, "You're just making it up to get attention." Do you remember saying that in the interview?---Yes.
And that was the case, wasn't it? You were making these things up to get attention?---No, that was not the case.
…
… you knew that your sister had made allegations against [the appellant] and had been not believed by your mother before you made any sort of complaint about things happening to you. Is that a fair summary?---Yes.
And I want to suggest to you that you've made these things up to support your sister. Would you agree or disagree with that?---I would disagree with that.
…
… I want to suggest to you he never took you into his room and asked you to perform oral sex on him or manually masturbate him. Would you agree or disagree with that?---I would disagree.
He never penetrated your vagina with any part of his body, including his penis. Would you agree or disagree with that?---I disagree.
He never touched you when you came to visit in Canberra on the pubic area and told you to trim your pubic hair. Would you agree or disagree with that?---I disagree.
The appellant
In relation to the allegation of touching KT’s breasts (an uncharged act the subject of a contemporaneous complaint in 1991) and sexually assaulting her at his place of work (Count 3), the appellant gave the following evidence.
Do you recall an incident occurring shortly before that attendance by those two women involving [KT]?---Well, [KT] had a bad habit of fitting. She would lash out. I think what happened with [KT] before that was I didn't want her to go out. She wanted to go out somewhere and it wasn't appropriate at the time and she started to hit me and I pushed her.
…
And do you recall an occasion in 2008 when [KT] did actually come to your premises?---Yes.
And do you recall what happened when she got there?---She turned up and she wanted money.
Did you give her money?---No.
What was her reaction to that?---She wasn't happy.
Did she stay for long?---No.
Summary of relevant matters raised in evidence
Counsel for the appellant put to KT that each of the sexual incidents of which she had given evidence was a “lie” and/or had been “made up”. In addition, the counsel put the following factual allegations to her:
(a)The complaint that she had made in 1991 about the accused touching her breasts was made after an argument between KT and the accused, which had culminated in KT hitting the accused and him pushing her away (inferentially raising the possibility that he had touched her breasts accidentally and/or KT had made the complaint by way of seeking retribution).
(b)In 2008, she had asked the appellant for money but he had refused to give her money because he had none.
(c)She had spoken to LT between her first and second interviews in 2008 and had discussed with him what she said had happened to her in relation to Count 1 (inferentially, after there had been an opportunity for concoction with LT).
(d)Her third police interview (in 2016) occurred after she had spoken to the other two complainants (inferentially, there had been an opportunity for concoction).
Counsel for the appellant put to BQ that the accused had not committed any of the sexual acts towards her and that she had “made up” the allegations to support her sister KT and/or to gain attention.
Counsel for the appellant put to LT that he had “made up” the allegations of fellatio in order to support his sister KT.
Crown’s closing address
The matters about which the appellant complained are identified by bolded numbers below.
In introductory remarks to his closing address, the prosecutor said:
These are not vindictive [or] malicious children. Through these proceedings they are simply seeking redress for past wrongs. (1)
And then you have also heard about their relationships with each other. [BQ] has no meaningful contact with [KT] or [LT]. Hangs up on his sister last year. That is the last contact, and yet [BQ] and [LT] are apparently, on the accused's suggestions, making this all up to support [KT]. They have apparently lied to each other, gone to police and lied and then come to court to lie all to support [KT]. I suggest this does not make sense. (2)
At the heart of this trial is the following key issue: did the acts occur as alleged by [KT], [LT] and [BQ]? The accused has denied that these acts have occurred. He just outright denied it. On the flipside, we have three complainants, individually and independently asserting that the accused did things to them and at the end of the day I will be asking you to consider that the three of them are not lying and not making this up. (3)
After discussing the tendency evidence and inviting the jury to place KT’s evidence in a proper context, the prosecutor submitted that the jury should find that KT had given accurate evidence about the appellant’s physical conduct towards her. The prosecutor submitted:
But her evidence about what physically occurred was consistent. To this end, I suggest it’s important to recognise the timeframe in which she is giving her evidence. Firstly, I suggest it would be extremely hard to lie about something or make something up in your youth, maintain this lie in the face of apparently not being believed, then to take the step of going to police about it, to go back to police some eight years later and to maintain such lies if it didn't actually happen. And also for what purpose? To allegedly redress some wrong about not being allowed to go out when she was 14 years old? (4)
Secondly, I suggest that you consider the consistency of the core allegations that [KT] has asserted, despite the delay in the accounts. Some peripheral facts may be forgotten in time. That’s natural and understandable. But [KT] was consistent on the core facts …
Further, I suggest that it’s not surprising that when [KT] describes some events in 2008 and then again in 2017 she may have emphasised different aspects or left some details out. I suggest that the nature of [KT’s] evidence accords with normal behaviour … You know what is said to be true, the core event doesn’t change. It's not a lie (5), it’s just simply told in a slightly different way with a different emphasis.
…
Now, also I ask you to consider that [KT’s] conduct is not consistent with somebody who is acting vindictively or pursuing a false vendetta. Rather, she is someone who is simply seeking redress for past wrongs (6). For the most part [KT’s] conduct is consistent with somebody who tried to get on with her life. It doesn’t make sense that [KT] acts so vindictively that she gets on with her life and lets years go by without doing anything.
You’ve also had the opportunity to observe [KT]. I suggest you could see from her evidence that time she was doing actions. Such actions would speak of reliving the event. She wasn’t making it up (7). So what I’m asking you to do is approach the evidence of [KT] with your collective wisdom and common sense and when you do, I suggest you can accept that she was recalling specific events in her life …
The prosecutor turned to consider the evidence in support of each of the counts. When making submissions about Count 1, the prosecutor said:
Now, the accused’s suggestion to this is that because [KT] called up her brother and essentially said, “Hey, do you remember this?” that it’s all fabricated (8). How many times do we start conversations with, “Hey, do you remember when” when you’re speaking to your friends and you’re recalling past events? … I suggest that [KT] is not making this up. She was doing something that we all do.
The prosecutor then made detailed submissions about KT’s evidence concerning Counts 2 and 3.
Next, the prosecutor dealt with KT’s evidence supporting Counts 4 and 5 (the $50 incident).
The accused says that the sexual activities in this bedroom just never happened. It's apparently a complete lie. But for this to be plausible, it requires [KT] to have really memorised the layout of the house on the previous occasion that she dropped [BQ] off, and in particular a good knowledge and recollection of the accused’s bedroom, to be able to properly construct a scenario of movement and interaction between people and furniture (9). And then she has to use this memory some time later to concoct a sexual assault, all because she didn’t get some money and then act on that by going back to [her partner] in tears and complain of the sexual assault. I suggest that she is not making this up. It occurred.
There was no purpose or outcome of what she would achieve. She was not going to get more money out of it by making this up and if the motivation was to stitch up the accused, [KT] then waits some months before going to police (10). Really? If you are going to stitch somebody up, you wait? Through all this, I suggest that there is no logical reason, no cogent evidence for [KT] to make up these events (11).
The prosecutor then turned to LT’s evidence. The prosecutor pointed out that LT had first disclosed the alleged incident (Counts 6 and 7) to his wife at the time when they were separating and he was feeling vulnerable. The prosecutor continued:
It is also important to recognise that [LT] did not speak to his siblings before disclosing this allegation. This is not a case of [LT] concocting his evidence or conspiring with his siblings to stitch up his stepfather (12). This isn’t a case of [LT] supporting [KT]. This is [LT] telling his wife what happened to him. So when he told you these things, he was telling you what actually happened.
I also suggest you can take confidence from [LT] when you consider some of the details; the types of details that you wouldn’t expect when somebody is making stuff up (13). For example … the specific clothing that he was wearing, the football shorts…
Also [LT] was able to describe the emotional manipulation of the situation, what spurred him on to drink, the accused saying things like, “if you can’t handle it,” which for [LT] was like waving the red flag at a bull … That level of detail goes into the realm of motivation and possible manipulation … It's not something that he's making up (14).
I also ask you to consider the description of the alcohol itself …But [LT] isn't making this up (15) because he told you that he was gifted with Sambuca. He wasn’t trying to exaggerate. He took care to say that he only got a small bottle. But a small bottle of alcohol and a 13 year old boy don’t mix.
It was also suggested by the accused to [LT] that he was making this up to support [KT]. So apparently [LT] works in very mysterious ways. Please recall that [LT] essentially triggered the events of the siblings going back to police. But when [LT] spoke to [his wife], [KT] at that point in time had no notion of going to police. But apparently to help out [KT], to support [KT], [LT] goes and tells his wife about the affairs and at that time makes up some fake past abuse and then takes a further five days to go and tell his sister, and this is apparently all for her benefit …
The prosecutor then addressed the evidence relating to the allegations concerning BQ. First, he made the following general submission:
… I suggest you would take great confidence in [BQ’s] evidence. She gave quite clear and detailed evidence as to what the accused did to her in circumstances that do not speak of lying or making these things up (16). I suggest that she was forthright and detailed in describing what took place. The impression you might have had of [BQ] is that she was very matter-of-fact about it, that it’s something that she’s had to live with and has come to terms with.
The prosecutor suggested that there had been a gradual escalation in the appellant’s sexual behaviour towards BQ, and submitted:
See, these are the type of details which I suggest speaks of the events occurring. Although I have simplified it in short form, it’s a complex narrative which speaks of accuracy and truth. She is not making this up (17).
I also ask you to consider the nature of the progression of the sexual acts and suggest that it makes … sense …
Now, in assessing [BQ] as a reliable and credible witness, please consider that she didn’t downplay her own participation …
If [BQ] was so hellbent on trying to stitch up the accused for something he didn't do, I suggest it doesn't make sense (18) for [BQ] to portray herself as someone who would willingly perform oral sex on her dad …
After dealing with the evidence relating to each count concerning BQ, the prosecutor continued:
Now, just like [LT], [BQ] was challenged with respect to making these events up to support her sister. Please put this into context. This is a sister with whom she has little contact with and now has no recent contact with. You heard about that phone call where she just hung up. She doesn’t want to speak to her sister. She is not here supporting her sister; she is here telling you what happened to her …
The prosecutor moved from the evidence relating to the individual complainants, referring again to the tendency evidence, and then to the expert medical evidence and the complaint evidence relating to all complainants.
The prosecutor continued:
I also request you to consider in your deliberations, looking at the bigger picture, that [KT’s], [LT’s] and [BQ’s] evidence has not been concocted or fabricated together. This is not a co-ordinated effort to lie and to stitch up the accused (19). Please note who the first disclosures were to. They were not to each other. They were to other people. Sure enough, they ultimately talked to each other, and you would expect that amongst siblings but this was after their initial disclosures. And when they did talk to each other, you’ve heard that they didn’t really go into depth and detail, not the graphic detail that they told the police.
The prosecutor submitted that each of the complainants had described quite distinctive circumstances in which conduct had occurred, submitting that the clear distinctions were inconsistent with “mixing up memories”. He continued:
… please consider the family dynamics and the nature of the separate lives they have lived, and I suggest that they do not have the type of relationship to concoct and support each other in this way. If you consider that there is no concoction, then I suggest that really only leaves you with one or two possibilities; that [KT], [LT] and [BQ] are either … individually lying for some unknown reason for which there is no evidence or alternatively they are individually telling the truth (20).
I suggest that the evidence squarely points to the conclusion that they [were] each being truthful when they told you what the accused did to them …
The prosecutor submitted that the jury should reject the appellant’s denials of misconduct, despite the evidence of good character.
After dealing with other matters, the prosecutor concluded his address as follows:
Ladies and gentlemen of the jury, can I leave you with one final thought. When you consider all of the evidence can I suggest that the accounts of [KT], [LT] and [BQ], the way in which they described that it occurred and the way in which they individually disclosed their accounts, it’s just simply too credible to deny that it happened. It’s too [in]credible to assert that all three of them are lying and it’s simply incredible to think that [LT] and [BQ] are making this all up just to support [KT] (21).
Defence response to Crown address
At the conclusion of the prosecutor’s address, defence counsel expressed concern that the prosecutor had, in effect, asked the question “Why would the complainants lie?” Defence counsel submitted that, in so doing, the prosecutor had reversed the onus of proof.
Following a brief discussion, there was a morning tea adjournment. Thereafter, defence counsel asked the trial judge to give the jury a direction before he commenced the closing address for the defence. Defence counsel sought “some sort of rebuke” to nullify the prosecutor’s “underlying theme that they weren’t making it up”.
The prosecutor took issue with the suggestion that, in his closing address, he had reversed the onus of proof.
In response to the defence request, prior to the closing address for the defence, the trial judge instructed the jury:
it is customary for me to remind you that the onus of proof is always on the prosecution to prove its case beyond reasonable doubt.
This was the full extent of the trial judge’s instruction.
The defence closing address
First, defence counsel reminded the jury of the onus and standard of proof; that the appellant did not have to prove his innocence and it was for the prosecution to prove its case beyond reasonable doubt. Later in his address, defence counsel submitted:
there’s been a whiff – and I say that in a very broad sense, that there is a whiff that [the appellant] has to prove his innocence …
Now, his Honour will give you a direction in due course about these onuses and burdens of proof. One of the things he will say to you quite clearly; it is not simply a matter of who you believe. It cannot ever be simplified or just drilled down to that basic proposition. Because again that would suggest that [the appellant] has to be believed, and in a way has to prove his innocence. No. What you do is always remember: have the prosecution satisfied me beyond reasonable doubt through the evidence that they have led that these things occurred.
…
… If you think what [the appellant] says isn’t true but it might be true, then I would also suggest you would have a doubt about the prosecution case because it is not for him to prove his innocence.
If you don’t accept [the appellant], you would only then turn to the prosecution case and decide whether still you are satisfied beyond reasonable doubt. …
…
This is not, as it was suggested to you, about seeking redress for wrong, as the prosecutor said to you. That is not your role. You are fact finders. You are not here to punish. …
…
Now, again, it’s not for [the appellant] to prove a conspiracy, to prove these things, but what I say to you is that they should leave you with a doubt … The burden placed upon the prosecution is to satisfy you beyond reasonable doubt. It is that burden that is a heavy one and what I suggest you is that when you look at all this evidence in totality, there is doubt throughout.
…
Again, can I emphasise this, ladies and gentlemen, it’s not for [the appellant] to prove his innocence …
It is all too easy for accusations like this to be made, but I remind you it is not for him to prove his innocence. … But the reality is he has told you he did not do these things. He doesn’t have to say why these things are alleged against him. He simply has to tell you he didn’t do them …
Trial judge’s directions
Relevantly, the trial judge directed the jury as follows:
As in most cases where sexual misconduct is alleged, there is only one prosecution witness who is in a position to give direct evidence of what occurred in the particular event. In this case it’s either [KT], [LT] or [BQ]. Unless you are satisfied in respect of each count concerning these individuals beyond reasonable doubt that they are honest and accurate in the account they have given, you cannot find the accused guilty in respect of the charges concerning them individually.
Before you can convict the accused you should examine the evidence of [KT], [LT] and [BQ] very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial …
…
I remind you of the accused’s position. He says the alleged acts simply did not happen. He never sexually assaulted the complainants and he never acted indecently with them. He never committed any of the alleged offences. …
…
In a criminal trial, and I emphasise and it’s been emphasised a number of occasions, the Crown has to prove the guilt of the accused. The accused person does not have to prove anything. Specifically, an accused person does not have to prove his or her innocence. An accused person does not have to prove any reason or any motive in any witness saying whatever he or she may have said. The accused is presumed to be not guilty of each charge unless and until the prosecution proves his guilt beyond reasonable doubt.
…
… the fact that he has given evidence does not alter the burden of proof. The accused does not have to prove that his version is true. The Crown has to satisfy you that the account given by the accused should not be accepted as a version of events that could reasonably be true.
[Emphasis added.]
After explaining the proper approach to drawing inferences, expert evidence, tendency evidence, context evidence, complaint evidence, and the forensic disadvantage of delay in reporting the alleged offences, the trial judge returned to the issue of motive to lie and directed the jury:
I should remind you that it’s not up to the accused to come up with an explanation for why the complainants’ evidence may be unreliable. The burden is on the prosecution to prove its case beyond reasonable doubt. What it comes back to is whether you accept the complainants’ evidence about the critical events beyond reasonable doubt. You will recall that I told you that because the only direct evidence in respect of each charge comes from the individual complainant, you must look at the evidence of that complainant very carefully. But you can use complaint evidence in your assessment of the complainants’ evidence in the manner I’ve just discussed.
[Emphasis added.]
The trial judge then dealt with the alternative charges (Counts 12 and 15), good character, the elements of the offences, and evidence relied upon to establish each charge before giving final directions to the jury.
At the conclusion of the trial judge’s directions, defence counsel sought a redirection in relation to complaint evidence. The trial judge acceded to the request.
Defence counsel sought no redirection in relation to motive to lie or the onus of proof.
Applicable legal principles
Unless the context suggests otherwise, to ask “Why would the complainants lie?” is to invite a jury to reason that, if no motive to lie is positively established, then the complainants’ evidence should be accepted: Palmer v The Queen [1998] HCA 2; 193 CLR 1 (Palmer) at [7]. Such reasoning would involve a reversal of the onus of proof, requiring an accused to explain why a complainant may have lied.
In Palmer, the prosecutor had cross-examined the accused about his inability to identify why the complainant would have lied. At [9], the majority said:
a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. … The correct view is that absence of proof of motive is entirely neutral.
In South v The Queen [2007] NSWCCA 117 (South), defence counsel had proposed a particular motive to lie to the complainant. In summing up, the trial judge had repeated the question “Why would she lie?” that the prosecutor had asked in address. At [42]–[43], Hunt AJA (Simpson and Whealy JJ agreeing) said:
Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. The jury's task necessarily does not include speculation as to whether there is some other reason why she would lie … Nor does the jury’s task include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused …
… To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask “Why would the complainant lie?” is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant’s evidence.
[Emphasis in original, citations omitted.]
Authorities dealing with the issue of motive to lie were discussed in Doe v The Queen [2008] NSWCCA 203; 187 A Crim R 328 (Doe). At [58]–[60], the Court articulated propositions that had distilled from those authorities in the following terms:
… Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive (“the central theme”), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.
Where there is no direct evidence of a motive to lie on the part of a central Crown witness, or evidence from which one can be reasonably inferred, a miscarriage of justice may be occasioned by :-
(i) cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case ;
(ii) a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie ;
(iii) a Crown submission to the jury which directly invites them to ask the question “Why would he/she lie ?” in order to promote the acceptance of the witness as a witness of truth ;
(iv) a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect.
Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case.
In Doe, when cross-examining a witness, the defence had raised no particular motive to lie. The prosecutor had submitted that the witness “had [no] axe to grind with the accused”. In the summing up, the trial judge had repeated that submission, stating that the witness “does not appear to be a person who had an axe to grind”. Defence counsel had not objected. The Court rejected the proposition that the jury had been encouraged to ask “Why would [the witness] lie?”: at [76].
In Brown v The Queen [2008] NSWCCA 306, the Crown had addressed the jury as follows:
But ask yourself this, there are two important questions, why in a situation when somebody is in peril of dying and really thinking at that point that they’re not going to survive, would you nominate the names of some person who was a friend of yours. Why would you nominate two people who are close friends of yours, knowing full well that if you did survive, the people that actually shot you would still be out on the loose in the community and may well come back and finish the job. Why would that person do that?
McClellan CJ at CL (with whom Hall and Harrison JJ agreed) concluded that the submission had not reversed the onus of proof by inviting the jury to accept the witness’s evidence simply because there was no identified motive for the witness to lie: at [50]. The Court found that the submission should be understood as a contention that there was a good reason why the witness would not have lied, i.e. that a lie would have exposed the witness to continuing physical danger.
In MAJW v The Queen [2009] NSWCCA 255 (MAJW), the appellant contended that the prosecutor’s address had caused a miscarriage of justice because it had invited the jury to speculate as to the reasons why the complainant would have lied. At the trial, the appellant had denied sexual misconduct, asserted that the complainant was lying and raised matters that may have provided her with a motive to lie. In submission, the prosecutor had asked the jury “Is there any reason why [the complainant] would want to tell us lies?” The trial judge had not directly addressed the issue of motive to lie, but had directed the jury that the trial was “not a competition between the complainant’s evidence and the accused’s evidence”, reminding them that the issue was whether the prosecution had proved its case against the accused beyond reasonable doubt.
As to the prosecutor’s submission in MAJW, the Court observed that it would have been better if the prosecutor had not asked the question: at [39]. However, when the question was considered in context (it introduced a discussion of the alleged specific motives for the complainant to lie), the question was not an invitation to speculate as to whether there was any reason other than the specific motives that had been suggested as to why the complainant would lie, or that it suggested that the jury should accept the complainant’s evidence unless the accused had established a particular reason why she might lie: at [32]. The Court noted that the trial judge had repeatedly directed the jury about the presumption of innocence and the onus of proof, and had specifically directed the jury that the case did not involve “a competition between the complainant’s evidence and the accused evidence”. The Court also observed that defence counsel had not sought a redirection: at [44].
In Popovic v The Queen [2016] NSWCCA 202, a trial judge had asked rhetorically why a witness would lie. At [218], Adamson J (with whom Beazley P and RA Hulme J agreed) said:
The question of motive to lie tends to arise in two situations: first, where there is a witness in respect of whom there is no evidence to suggest a motive to lie; and secondly, where the evidence reveals such a motive. In the first case, the jury ought not be asked to consider why the witness would lie because the question tends to suggest that the jury ought believe the witness in the absence of evidence suggesting a motive to lie. However in the second case the jury is entitled to be asked to consider the validity of the motive to lie that has been asserted. In such a case, the jury ought be directed 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 …
[Citations omitted.]
The Court found that the effect of the trial judge’s rhetorical question had been to suggest that, if the jurors could not identify a reason why the witness would lie, they should accept his evidence, and concluded that the error could give rise to a substantial miscarriage of justice.
In Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11, the appellant had been convicted of sexual offences against a number of complainants who had been his students. At the trial, it had been suggested that at least some of the students may have been motivated to lie in order to avoid being disciplined for plagiarism in their assignments. On appeal, the appellant invoked South, arguing that the trial judge’s directions had been inadequate because his Honour had not directed the jury that, even if the jury did not accept that a witness was motivated to lie for a reason suggested by the accused, that did not mean that the witness was necessarily telling the truth: R v Jovanovic (1997) 42 NSWLR 520 at 521–522. The trial judge had directed the jury in the following terms:
An accused person does not have to prove any reason or motive for any witness to say whatever that witness may have said.
…
[I]t’s not up to the accused to come up with an explanation about why the complainants’ evidence may be unreliable, it’s up to the prosecution to prove the case. It comes back to whether you accept the complainants’ evidence about the critical evidence beyond reasonable doubt.
The Court of Appeal was satisfied that the trial judge had made it clear to the jury that there was no onus on the appellant to establish any motive to lie and that, regardless of whether a motive to lie was or was not raised, the core issue was whether they accepted the critical aspects of the complainants’ evidence beyond reasonable doubt.
Consideration of submissions in this case
Appellant’s Submissions
The appellant submitted that, taken as a whole, the prosecutor’s closing address had invited the jury to speculate about whether the complainants had a motive to lie and had shifted the onus of proof; the prosecutor’s statements amounted to an assertion that, if they found that a complainant had no reason to lie, then they would conclude that the complainant had told the truth and that the accused was guilty.
The appellant sought to characterise this case as one in which there had been no direct evidence of a motive to lie. Alternatively, the appellant submitted that, if the Court found that the defence had alleged a particular motive to lie, then the prosecutor’s closing arguments had gone too far; he had suggested that, in the absence of a credible motive to lie, the evidence of the complainants should be accepted.
Further, the appellant submitted that the trial judge had failed to neutralise the prejudicial effect of the prosecutor’s address so as to ensure that the jury understood that the onus never shifted from the prosecution. The appellant submitted that the trial judge should have directed the jury that, even if they rejected the particular motives to lie that had been canvassed by the defence, that did not mean that they could be satisfied that the complainants were telling the truth; the absence of believable evidence of motive is neutral.
Did the prosecutor invite a wrong approach to the onus of proof?
In this case, the credibility of the complainants was the critical issue. In cross-examination, defence counsel put to each of the complainants that they were lying or “making up” the allegations of sexual misconduct by the appellant.
Specific motive to lie was raised by the appellant in the course of the trial. As outlined at [27] above, defence counsel put to KT that her 1991 complaint had been made after an argument with the appellant; inferentially, as a form of payback. In relation to Count 1, it was suggested that KT had spoken to LT and encouraged him to fabricate or misrecall events. In relation to the 2008 incident (Counts 4 and 5), it was suggested that KT had felt vindictive towards the appellant because he had refused to provide her with money. More generally, it was suggested that the complainants had collaborated to concoct their evidence. Defence counsel suggested that BQ had fabricated her allegations of sexual misconduct to support her sister KT and/or to gain attention. Defence counsel put to LT that he had “made up” his allegations of fellatio in order to support KT.
Given the way in which the trial was run, it is unsurprising that much of the prosecutor’s closing address was centred on why the jury should believe each complainant and should reject the particular motives that had been suggested by the defence.
A contextual examination of the prosecution comments and submissions about which the appellant complained (matters 1–21 in [35]–[48] above) discloses that, while some of the comments were strongly worded, most were appropriate. Essentially, the issue for the jury was whether the critical aspects of the evidence of each complainant should be accepted beyond reasonable doubt. The comments and submissions in question proposed reasons why the jury would reject motives to lie that had been asserted in the defence case and/or suggested reasons why the jury would find the complainants to be reliable witnesses.
We consider that the substance of the subject comments and submissions was as follows.
(a)2. Reasons why the jury would reject concoction motivated by the desire to support KT.
(b)3. A bare assertion that the complainants were not lying.
(c)4. Reasons why the jury would reject the motive that KT had lied in her 1991 complaint as a form of payback following an argument with the appellant.
(d)5 and 7. Reasons why the jury would accept KT as a reliable witness.
(e)8. A reason why the jury would reject the proposition that KT had influenced LT’s recall in relation to Count 1.
(f)9. Reasons why the jury would accept KT as a reliable witness in relation to Counts 4 and 5.
(g)10 and 11. Reasons why the jury would reject the motive that KT had lied about Counts 4 and 5 because she was “unhappy” that the appellant had refused to give her money.
(h)12. An introduction to a submission that there were reasons to find that LT was a reliable witness who had not concocted allegations against the appellant for the purpose of supporting KT.
(i)13, 14 and 15. Reasons why the jury would find LT to be a reliable witness.
(j)16, 17 and 18. Reasons why the jury would find BQ to be a reliable witness.
(k)19. A reason why the jury would find that the complainants had not jointly concocted their evidence.
(l)21. An orator’s flourish at the conclusion of his address, contrasting the credibility of the complainants with the incredibility of the defence case, that they had concocted their evidence.
None of the above comments or submissions invited the jury to speculate about whether, apart from the motives suggested by the defence, there may have been another motive for any complainant to lie. Nor did any submission suggest that the absence of a believable motive strengthened the prosecution case, let alone that the appellant bore an onus to establish (or, at least, identify) a believable motive for any or all of the complainants to lie.
However, comment 20 is in a different category. The prosecutor said:
If you consider that there is no concoction, then I suggest that really only leaves you with one or two possibilities; that [KT], [LT] and [BQ] are either individually lying … for some unknown reason for which there is no evidence or alternatively they are individually telling the truth.
This submission suggested that, as there was no evidence of a believable motive for lying, the jury must necessarily conclude that the complainants had told the truth. As explained in Palmer and later cases, the absence of a believable motive to lie is entirely neutral; it does not support a conclusion that the evidence of a complainant is truthful. If absence of a believable motive to lie could be used in that way, then an evidentiary onus would shift to an accused.
We divert to refer briefly to two other difficulties with the prosecutor’s closing address.
First, the prosecutor submitted that, rather than being motivated by malice towards the appellant, the assertion that the complainants had been motivated by desire to “[seek] redress for past wrongs” (comments 1 and 6) was inappropriate. As far as we can ascertain from the transcript provided on the appeal, there was no evidence that redress was the complainants’ motivation to come forward. The submission invited an emotional response from the jury.
Second, the prosecutor repeatedly referred to and rejected the proposition that the complainants had been endeavouring to “stitch up” the appellant. In comment 18, the prosecutor addressed the proposition that BQ had been “so hellbent on trying to stitch up the accused for something he didn’t do”. These comments were unnecessarily inflammatory.
However, on the appeal, the appellant did not argue that the prosecutor’s language was so emotional and inflammatory as to cause or contribute to a miscarriage of justice.
Did the trial judge fail to correct the invitation to misapply the onus of proof?
In our view, the trial judge did correct prosecutor’s invitation to the jury to rely on the absence of a believable motive to lie to bolster the complainants’ credibility (thereby casting an onus on the defence to advance a believable motive to lie).
Although the direction that the trial judge gave at the conclusion of the prosecutor’s address did not clearly grapple with the issue raised by submission 20, his Honour dealt firmly with the matter in the final directions.
The trial judge’s directions followed a defence closing argument that repeatedly emphasised the correct onus and standard of proof.
The trial judge directed the jury in a way that highlighted the onus and standard of proof. As stated above, relating the onus and standard of proof to the issue of motive to lie, his Honour directed the jury that:
In a criminal trial, and I emphasise and it’s been emphasised a number of occasions, the Crown has to prove the guilt of the accused. The accused person does not have to prove anything. Specifically, an accused person does not have to prove his or her innocence. An accused person does not have to prove any reason or any motive in any witness saying whatever he or she may have said. The accused is presumed to be not guilty of each charge unless and until the prosecution proves his guilt beyond reasonable doubt.
Subsequently, his Honour returned to the theme that there was no onus on the accused to advance a believable motive for the complainants to lie, stating:
I should remind you that it’s not up to the accused to come up with an explanation for why the complainants’ evidence may be unreliable. The burden is on the prosecution to prove its case beyond reasonable doubt. What it comes back to is whether you accept the complainants’ evidence about the critical events beyond reasonable doubt.
We conclude that the jury could have been left in no doubt about the correct approach to motive to lie and how evidence of motive to lie informed (or did not inform) the onus and standard of proof.
At the time of the trial, defence counsel must have been of the same view. Although he had earlier sought correction of the error in the prosecutor’s submission and was clearly alive to the issue, at the conclusion of the trial judge’s final directions, he sought no further direction about motive to lie and how it related to onus of proof.
Orders
Leave is granted to appeal on the ground that, in the context of the prosecutor’s submissions on the point, the trial judge’s directions in relation to motive to lie and onus of proof were inadequate.
The appeal is dismissed.
| I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns and Justice Wigney. Associate: Date: |
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