HIGH COURT OF AUSTRALIA
BRENNAN CJ,
GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
COLIN VAUGHAN PALMER APPELLANT
AND
THE QUEEN RESPONDENT
Palmer v The Queen (M41-1997) [1998] HCA 2
Date of Order: 2 December 1997
Reasons for Judgment Delivered: 20 January 1998
ORDER
Appeal allowed.
Set aside the order of the Court of Appeal and in lieu thereof grant leave to appeal to that Court, allow the appeal and quash the appellant's convictions and enter verdicts of acquittal in their place.
On appeal from the Court of Appeal of the Supreme Court of Victoria
Representation:
R K Kent QC with M R Simon for the appellant (instructed by Jonathan
Kemp & Associates)
W H Morgan-Payler QC with G J C Silbert for the respondent (instructed by
P Wood, Solicitor to the Director of Public Prosecutions)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Palmer v The Queen
Criminal law – Sexual offences – Cross-examination of accused as to whether complainant had motive to lie – Relevance – Inviting jury to speculate – Risk of reversal of onus of proof – Whether judge's directions capable of neutralising prejudicial effect of cross-examination.
Criminal law – Sexual offences – Unsafe and unsatisfactory verdict – Alibi.
BRENNAN CJ, GAUDRON AND GUMMOW JJ. In June 1994 the complainant, whom we shall call "L", was aged 14. At that time, she was recuperating at home in Camberwell, a Melbourne suburb, after an operation. She lived with her mother who was in daytime employment, so L was left at home during the day. The appellant, aged 34, was a process server who had met and become friendly with the mother two years before. His duties as a process server took him to various suburbs of Melbourne. He made an offer to L's mother that he would pick up L at home and take her out for a drive. L's mother agreed to that suggestion.
On Wednesday 22 June 1994, the appellant called at the home and took L with him into town. He took her to lunch at a restaurant which he frequented close to his office. Later in the day he took her home. The following day, Thursday 23 June, he called at the home again and spent some time there. On Tuesday 28 June he again called and took L with him on his rounds. He did the same on Thursday 30 June and on Friday 1 July. On that afternoon she went with him to his house and assisted with some office work for which he paid her $20. L gave evidence that on these occasions the appellant had engaged in sexually suggestive conversation or conduct. The appellant's evidence denied that he had done so.
There is a conflict of evidence as to what happened on Monday 4 July. L alleged that the appellant called for her and took her with him on his rounds until about 6.00pm that evening when, in a lane next to a church in Richmond, he stopped the car, put the seat back and said that he wished to have a sleep. Her evidence as to what happened from that point onwards was the foundation of the prosecution case on an indictment containing 11 counts of sexual offences. We take a description of her allegations from the judgment of Brooking JA in the Court of Appeal of Victoria:
" Later, when it was dark, he pulled up in a lane beside a church and said he wanted to have a sleep and wound his seat back and asked her to do the same, which she did. He appeared to sleep for a while and then, according to the girl, there occurred the first of the incidents which led to the applicant's being charged with seven counts of committing an indecent act with a child under the age of 16 and two counts of digital rape, together with two alternative counts of taking part in an act of sexual penetration with a child aged between 10 and 16.
According to the complainant, after taking her hand and sucking her fingers the applicant began rubbing one of her breasts through the clothing. She tried to move away and he desisted. That incident was the subject of count 1. She moved to the far side of the seat and he drove off.
After driving off he rubbed both breasts continuously or repeatedly through her clothing, although she told him more than once to stop. Ultimately he was handling her naked breasts. This was the subject of count 2.
Count 3 concerned the applicant's act, according to the complainant, of taking her hand and placing it on his thigh and trying to place it in his crotch. She moved her hand away.
He drove to his home and they went inside and, continuing the complainant's account, he offered alcohol to her to drink, which she refused. He led her into the study and sat down and pulled her down so that she was sitting on his knees. She was resisting. He put his hand under her dress and touched her thigh but, by using her elbow, she stopped him touching her between the legs. She tried to move away. He had his other hand under her jumper. He kissed her and bit her lower lip. These events were the subject of count 4.
She got up and telephoned her mother. He said, 'You'd better not tell mummy what's going on, she might not like it.' While she was telephoning he was putting his hands up her dress. That is the subject of count 5.
After making the telephone call she walked towards the door. He came up behind her and put his hands around her from behind. She was shaking and he told her that she was horny. He walked her down to the bedroom and sat her down on the bed and pushed her down. He left her in order to pull down the blinds and she got up and walked towards the door but he took her back to the bed and lay partly on top of her, kissing her. He completely unbuttoned her dress and sucked her breast and bit her nipple. This gave rise to count 6.
Then, on two separate occasions, the two rapes alleged, he inserted two fingers into her vagina. She rolled off the bed and stood up and he said, 'I could fuck you silly right now.' He put her hand on his crotch, making her feel his erection, and this gave rise to count 11, the seventh and last indecent act count.
Later, she said, he drove her home but did not come inside the house."
L's mother gave evidence that the appellant had rung her at work to obtain her permission to take L out on 4 July, that L had later called in to bring her a piece of cake, that after trying to ring L at home late that day she (the mother) arrived home at about 7.00pm, telephoned the appellant's home and left a message on his answering machine asking where L was and then, about 45 minutes later, she received a call from L who said she was at the appellant's house. The mother said that L arrived home at 9 or 9.30pm that evening, went straight past the mother's bedroom door into the shower where she stayed. When her mother knocked on the door, L told her to go away until ultimately L went to sleep in the shower. Then her mother woke her and L went to bed. She did not tell her mother what the appellant had allegedly done.
The appellant gave evidence. He firmly denied that he was in the company of L at any time on 4 July. However, the jury convicted him on six counts of wilfully committing an indecent act with a child under 16, namely, counts 1, 2, 4, 5, 6 and 11 and on two counts of intentional sexual penetration of L by introducing his finger into her vagina without her consent, namely, counts 7 and 9. Count 7 and count 9 were alternatives of counts 8 and 10 respectively. The jury thus found the appellant guilty of having done each of the acts alleged by L against him except the act alleged in count 3. The Court of Appeal dismissed the appellant's applications for leave to appeal against conviction and sentence. Special leave to appeal to this Court was granted in order to consider the propriety of a line of cross-examination which the Court of Appeal held to be permissible in the present case. The grant of special leave being unrestricted, the appellant raises that question and also the question whether the conviction was unsafe and unsatisfactory.
Cross-examination of the appellant
In the course of L's cross-examination by counsel for the appellant, the following exchange occurred:
"All this bloke had done is take you out and for some reason you have taken a fancy to him, isn't that right?---No, he took me back to his place.
This is some sort of pay back on him for some indiscretion he doesn't even know about, isn't that right?---No, I am not lying."
When the appellant gave evidence, his cross-examination by counsel for the prosecution commenced thus:
"Mr Palmer, as I understand it, from the questions that were put to [L] yesterday, you would really, it seems, be at an absolute loss to think as to why she should make up the allegations?---You are asking me what - - -
Yes?---I have no idea why she has said what she has.
You would have heard Mr Montgomery mention to her yesterday, 'It was a pay back for some indiscretion he does not even know about'; did you hear Mr Montgomery say that to [L]?---I think he did, yes.
So far as you are concerned there is absolutely nothing about your behaviour towards [L] in the past prior to the 4th July, or at all, that would account for her making such an allegation against you?---I have, as I said before, under question from Mr Montgomery, in reference to this - no, I have done nothing.
So even with the benefit of hindsight, or as in the time that has elapsed from the time you were questioned by police - which is about August of 1994 - until now, you are still at a loss?---Yes."
At the end of a lengthy cross-examination the following occurred:
"I suggest what [L] said you did and said to her over the days leading up to and on the 4th of July is exactly how it happened?---I am telling you it is not.
At this stage, as you sit there today, you can't think of any reason, or anything you have done to her - - -?---No, I haven't.
As to why she would make this up?---I am saying that to you, that is correct."
No objection was taken to these questions at the time, but the asking of them gave rise to one of the grounds of appeal to the Court of Appeal[1]. Brooking JA, speaking for a unanimous Court of Appeal, rejected this ground, saying:
" Mr Kent submits that this cross-examination of his client was impermissible, but, whatever the position might have been had the complainant herself not been cross-examined about motive to misrepresent (and as to this I express no opinion), the applicant had chosen to raise that matter and cannot complain that it was taken up by the Crown Prosecutor when she came to cross-examine the applicant. Again, I might interpolate, there was no objection taken at the trial to this cross-examination."
The question which had been put to L in cross-examination attributed to her a motive to lie, namely, "pay back" or revenge. Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations. Thus it is said in Wills on Circumstantial Evidence[2]:
" It is frequently therefore of the highest importance to investigate the motives of the complainant, and to ascertain whether they are such as may have led to the institution of a false charge. The just course of inquiry in such circumstances was thus laid down by Mr Justice Cresswell. 'The jury,' he said, 'had nothing to do with the prosecutor's motives except so far as if it should appear that there was any motive for the prosecution of an unworthy character made out, it would then be their duty to watch such a case much more narrowly than one in which no such motive appeared. Even in that case, however, if the evidence satisfied them of the truth of the charge, they had no right to look at the motives that had induced the prosecutor to prefer it, but were bound to say that the accused person was guilty'[3]".
In R v Uhrig[4] Hunt CJ at CL said:
"A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by s 103 of the Evidence Act 1995 for admissibility. If the alleged motive is denied by the witness, other evidence may be led to rebut that denial in accordance with s 106."
[1] Ground 2: "The trial of the applicant miscarried in that the applicant was cross examined by the prosecutor ... as to whether the complainant had any motive to make her allegations."
[2] 6th ed (1912) at 256-257; Taylor on Evidence, 12th ed (1931), vol 2, par 1442.
[3] R v Coyle (1851) 34 CCC Sess Pap 725.
[4] Unreported, Court of Criminal Appeal (NSW), 24 October 1996 at 16-17.
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[5]. 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.
[5] R v Yewin, noted in Harris vTippett (1811) 2 Camp 637 at 638-639 [170 ER 1277 at 1278]; Thomas v David (1836) 7 Car & P 350 [173 ER 156] considered in R v Cargill [1913] 2 KB 271 at 275; Attorney-General v Hitchcock (1847) 1 Ex 91 [154 ER 38]; Hall v Marchant [1914] St R Qd 174 at 179; R v Shaw (1888) 16 Cox CC 503. This is an exception to the general rule that a witness' evidence on a question going only to credit cannot be contradicted by other evidence: Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 at 545; R v Livingstone [1987] 1 Qd R 38 at 41; Smith v The Queen (1993) 9 WAR 99 at 103-105.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F[6]:
[6] (1995) 83 A Crim R 502 at 511-512.
"the 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie'? That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant."
A similar view underlies what Pincus JA said in the Court of Appeal of Queensland in R v G[7]:
[7] [1994] 1 Qd R 540 at 545-546.
"for a judge to give a direction implying that, ordinarily, a young complainant in a sexual abuse case is unlikely to invent and adhere to the allegations is difficult to reconcile with the direction (which the learned trial judge gave) that it is dangerous to act on such a complainant's uncorroborated evidence."
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[8]:
"we 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. Nevertheless, as the question is irrelevant to any issue in the case, it ought not be asked. As Hunt CJ at CL pointed out in R v Uhrig[9], to ask the question "Why would the witness lie?":
"invites the jury to speculate ... to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict.[10] In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case."
[8] (1996) 39 NSWLR 450 at 464.
[9] Unreported, Court of Criminal Appeal (NSW), 24 October 1996 at 15-16.
[10] R v E (1996) 39 NSWLR 450 at 464.
A contrary view has been expressed by Callaway JA in the Court of Appeal of Victoria in R v Rodriguez[11]:
" It is true that there is no onus on the accused to prove a motive for the complainant's allegations. It is also true that absence of motive cannot, in cases like these, be inferred from absence of evidence of motive. But neither of those heresies is necessarily embraced when a jury is invited to ask themselves the question 'Why would the complainant lie?' in the course of assessing her or his credibility. Other things being equal, and that is an important qualification, the complainant's account is more likely to be true if a motive or possible motive for lying cannot be discerned and less likely to be true if it can be."
With respect, a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills[12] where his Lordship acknowledged that proof of a motive to lie weakened a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral.
[11] Unreported, Court of Appeal of the Supreme Court of Victoria, 13 June 1997 at 2.
[12] fn 2.
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[13]:
" What this Court said in Regina v F and in Regina 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 emphasize 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."
[13] Unreported, Court of Criminal Appeal (NSW), 24 October 1996 at 16-17.
In our opinion, the view adopted in Queensland and New South Wales is correct in principle. In the present case, although counsel for the appellant in cross-examination of the complainant made it quite clear that the appellant had no known basis for alleging a "pay back" motive, counsel for the prosecution sought to capitalise on that concession. Presumably by reason of the view current in Victoria, no objection was taken to the cross-examination by counsel for the prosecution and the trial judge did not intervene to prevent her from pressing the question and, at the end of the cross-examination, repeating it. The effect of that cross-examination must have been significant. The objectionable questions which opened the cross-examination were put immediately after L had manifested in the presence of the jury her rejection of the appellant's evidence of his innocence. The trial judge had sent the jury out while he instructed L not to cry or to do anything to attract the jury's attention. Then the jury were brought back and the prosecutor opened her cross-examination with the questions that were designed to highlight the fact that the appellant had no ground for imputing to L a motive to lie.
However, the Court of Appeal held that the direction given by the trial judge to the jury was sufficient to prevent any miscarriage of justice. Brooking JA said:
" I do not think that there was any irregularity in the cross-examination of the [appellant]. In any event, quite apart from the matter of failure to object, the series of directions given by the trial judge makes it impossible to say that the applicant may have been prejudiced in that, as Mr Kent contends, the jury failed to appreciate the difference between absence of proved motive and proved absence of motive, or led to believe that the applicant was obliged to prove a motive, or led into some other similar error."
His Honour set out portions of the trial judge's charge to the jury in which the judge alerted the jury very clearly to the fact that human beings tell lies. Amongst other things, the trial judge said:
"Of course for the accused's part this is nothing more than the development of an invention that comes about for some reason not discernible, whether as a result of neurosis or whatever it might be on the part of this young child.
...
... It comes down, as is quite obvious, to whether, in the end, you are prepared to be satisfied beyond reasonable doubt to act on [L's] sworn statement that it was the accused who did the things she said were done to her. Of course, it is a question as to whether you are prepared to be confident enough to find beyond reasonable doubt on the basis of all the evidence, including the accused man's evidence, whether those things happened at all. But if you do think they happened and that she was recounting an actual experience or set of experiences, whether she can be relied on in her statement that it was the accused. He says that it simply was not and for some reason that he cannot fathom, he has simply been picked by her. Perhaps she wanted to punish her mother for entrusting her to this stranger, this process server. You can think of dozens of theories, I suppose, as to why it might happen.
You are dealing with this particular girl, who was 14 at the time. You have seen her in the witness box, you have seen her level of commitment now, her emotional state about it all, now in 1996. And it comes down, as I said earlier, not as to whether the accused probably did it. You may say, 'Well, he probably did do it.' - I am not suggesting you do, I am merely referring to the approach that is open to you. You may say, 'Well, he very probably did do this, but, in the end, on looking at the whole of the evidence; in particular, the material he has put forward, and looking at the whole evidentiary picture as one piece; I say that it just hasn't been proved beyond reasonable doubt; I've got a lurking doubt about it.' If that is your state of mind, the law says you must give him the benefit of it and find him not guilty.
If, on the other hand, having scrutinised the evidence with the utmost care, you are thoroughly convinced beyond reasonable doubt that it is reliable, then it is your duty to say so and find him guilty of those counts that you think have been made out."
Although these and similar directions quoted by Brooking JA correctly instructed the jury on the issues for their determination and the onus and standard of proof of guilt, we doubt whether the directions were capable of neutralising the prejudicial effect of the opening and closing questions of the cross-examination of the appellant. Having acknowledged that he could offer no reason to impeach the credit of L who had been showing her disbelief in his denials in evidence in chief, his protestations of innocence may well have rung hollow in the jury's ears. In our opinion, it is necessary to allow the appeal on the ground that the asking of the questions in the circumstances of the case may have occasioned a miscarriage of justice. If that were the only ground of appeal, the Court would order a new trial. But a further ground remains for consideration.
Unsafe and unsatisfactory
The prosecution case did not depend solely on L's evidence. That evidence was supported by the evidence of her mother and particularly by the evidence of the mother's leaving a message on the appellant's answering machine on the evening of 4 July, of the call from L about 45 minutes later and of L's appearance and conduct when she arrived home that night. The appellant's defence was, in substance, an alibi. He says he was delivering process on the day and at the times when the events to which L deposed allegedly occurred. If the alibi evidence is so cogent as to engender in any reasonable mind a doubt of the accused's guilt, the conviction must be quashed and a verdict of acquittal entered however cogent the prosecution evidence would otherwise be. To appreciate the significance of the defence evidence, it is necessary to refer to the practice which the appellant adopted in producing affidavits of service of process and the course of the police investigation into L's complaint.
During the relevant period, the appellant was engaged in serving summonses for rates which the City of Northcote was seeking to recover from some of its ratepayers. He had a large number to serve in substantially the same area. Before he served a summons, he took a photocopy of it. When he served a summons, he took a note of the date, the time, the person served and the place of service. The note was subsequently used by his wife (from whom he was then temporarily separated) or himself to fill out the particulars in the affidavits of service. One copy of the affidavit was sworn before a Justice of the Peace or a sergeant of police and returned to the appellant's employer who would file it in the Court in which the summons was returnable. A photocopy of the affidavit was made (either before or after the original affidavit was sworn) and was retained by the appellant in his records. However, cross-examination of the appellant showed that his system was often slipshod. It appears that on 4 July the appellant swore a number of affidavits of service relating to the service of summonses on 1, 2 and 3 July, on 6 July he swore affidavits of service relating to the service of summonses on 5 July, but he did not swear the affidavits of service relating to the service of summonses on 4 July until 8 July. He explained, by reference to the different handwriting on the last-mentioned affidavits, that they had not been written up ready to be sworn on 6 July. At that time, L had made no complaint against him.
After L made her complaint to the police in August 1994, Detective Sergeant Coughlin went to the appellant's house at about 8.30am on 26 August 1994. The appellant accompanied Coughlin to the police station where, after a conversation between them, they returned to the house at about 12.45pm. Coughlin then seized the appellant's diary, a Sharp organiser and a box containing summonses on which the details of service were written. These were in fact copies of the affidavits of service. There were hundreds of these copies of affidavits, some of which related to service of summonses on 4 July 1994 and others to service of summonses on other days. They were tendered in a bundle at the trial[14] and the bundle included a schedule evidently prepared by the police which recorded the names of the defendants who had been served and the time and place of service. The police interviewed those defendants whom they could find who had been served with process allegedly on 4 July. None was able to confirm the date of service but equally none denied that he or she had been served. The manager of the collection agency which employed the appellant gave evidence of the response of many of the defendants who had been served with process by the appellant. If the affidavits of service were true, as the appellant swore they were, he could not have engaged in the conduct of which he was convicted.
[14] Other than one copy affidavit relating to service at 6.13pm on 4 July which had been missed by the police officers and which the appellant produced together with the original affidavit produced from the Magistrate's Court file.
The appellant's evidence as to service of the summonses on 4 July and the allegations made by L are mutually inconsistent. In cross-examination, the prosecutor suggested to the appellant that the summonses which he said he served on Monday 4 July had in fact been served on Sunday 3 July. That hypothesis, or alternatively the hypothesis that the 4 July summonses were served at different times from those recorded in the copy affidavits, was accepted by Brooking JA as an hypothesis which the jury were entitled to accept. Hayne JA agreed and added that it was open to the jury to convict on the footing that L may have made a mistake about the date. Southwell AJA agreed, adding that he was troubled by some of the alibi evidence as to the delay in swearing the affidavits of service relating to 4 July.
The case was fought entirely on the footing that the alleged offences occurred on 4 July. L was able to identify the date quite clearly. She gave this evidence:
"HIS HONOUR: How do you fix the date as being 4 July rather than some other date in July?‑‑‑Because I remember that date, and American Independence Day helps me to remember that too, actually, but I remember that day. I know it was definitely the 4th, it was a Monday, I think, 4 July."
In cross-examination, when she was asked about a version of events that she had given to a school friend, Megan, counsel put it to her that in that version the events took place on a different day, but L gave the reply:
"Yeah, but I know - whether I told her a different day or not, I know when it happened on, it happened on 4 July."
Moreover, the hypothesis that the events could have happened on a different day is inconsistent with the schedule prepared by the police recording affidavits of service of summonses on the days immediately following 4 July. The complainant could not have made a mistake which would be of any assistance to the prosecution case. If one looks at the schedule for 4, 5 and 6 July it appears that the appellant was engaged in serving process on each of those days in and around the areas of Thornbury and Northcote. Significantly, he was so engaged on 5 and 6 July as well as on 4 July in the serving of process at about 6.00pm. That time is significant because it is the time which L identifies as the time when the appellant was in the car next to the church, probably in Richmond. She said:
"we were definitely parked at 6 because he turned the radio on and I heard it on the radio."
There is also a record of the appellant's use of a credit card at a Caltex service station in Thornbury at 5.10pm on 4 July which is consistent with, though not conclusive of, his service of summonses in that area at the times stated in the affidavits of service. Leaving out of account the service which he first effected on 4 July (he was uncertain about the time of the service of that particular summons), the affidavits show that he served 29 summonses between 12.21pm and 9.18pm that day at places and at intervals that are inconsistent with his having committed the acts of which he was convicted.
It is possible, of course, that he fabricated the times or even the date of service of the summonses which he deposed to having served on 4 July. But that hypothesis postulates a fabrication between 4 July and 8 July when he swore the affidavits before any complaint had been made by L. Since the police established that the defendants had in fact been served at some time, the hypothesis must be that he served those affidavits on Sunday 3 July though no defendant recalled having been served on a Sunday.
There are some aspects of L's evidence that might engender some doubt about accepting her allegations at face value. Her description of the physical movements of the appellant in touching her breasts as he drove the car through the city is puzzling and her confiding to her friend Megan that she thought the appellant to be "cute" does not sit easily with the distaste L expressed in evidence for the appellant's conduct. However, these are matters which, if they stood alone, the jury would have had the best opportunity of evaluating and, if they thought fit, discounting for one reason or another. But the stark inconsistency between L's evidence and the alibi evidence which is based on the copy affidavits of service in the circumstances in which they were produced is not so easily discounted. Moreover, the summing up did not draw the jury's attention to the necessity to be satisfied beyond reasonable doubt that there was no truth in the alibi evidence before they could convict.
In our opinion, it was not open to the jury to convict in the face of the alibi evidence. So far as that evidence could be tested, it was confirmed. It was not produced by the appellant in immediate response to the police informing him of L's allegation but by police seizure of his records in consequence of his explanations of his duties as a process server. The apparent delay in the swearing of the affidavits relating to 4 July was satisfactorily explained by the appellant wife's delay in filling out the forms. The alibi evidence could not but engender a doubt that it might be true. And that is sufficient to require an acquittal.
We would allow the appeal, set aside the order of the Court of Appeal refusing leave to appeal and in lieu thereof grant leave to appeal to that Court, allow the appeal and quash the convictions and enter verdicts of acquittal in their place.
McHUGH J. The order under appeal, made by the Court of Appeal of the Supreme Court of Victoria, dismissed the appellant's appeal against his convictions on various charges of sexual assault. He contends that his convictions should be set aside because he was improperly cross-examined as to whether he knew of any reason why the complainant should concoct the charges against him. He also contends that, on the whole of the evidence, the convictions are unsafe and unsatisfactory. The principal questions in the appeal are:
(1) whether, on a charge of sexual assault, the accused can be questioned as to whether he or she knows of any reason why the complainant should fabricate the charge; and
(2) whether the Court of Appeal of the Supreme Court of Victoria erred in finding that the appellant's convictions were not unsafe and unsatisfactory.
I would answer both questions, Yes.
In my opinion, the questioning of an accused person as to his or her knowledge of facts that could throw light on the complainant's motivation for fabricating a charge of sexual assault is relevant in determining whether the accused is guilty of the charge. Cross‑examination of the appellant as to whether there was anything in his behaviour that would account for the complaints against him was therefore admissible. His first contention fails. However, on the whole of the evidence, the appellant's convictions are unsafe and unsatisfactory. The strength of the appellant's alibi was so great that it was not open to the jury to be convinced beyond a reasonable doubt that he committed the alleged offences on the date put forward by the Crown, a date that was central to the Crown case. The appellant's second contention therefore succeeds with the result that his conviction must be quashed and acquittals entered in respect of all charges.
The factual and procedural background
The appellant was presented for trial before the Melbourne County Court charged with seven counts of committing an indecent act with a child under the age of 16, two counts of rape and two counts of taking part in an act of sexual penetration with a child aged between 10 and 16. The offences were alleged to have been committed against the complainant on 4 July 1994. On that date the appellant was aged 34 and the complainant was a female, aged 14. The appellant pleaded not guilty to all counts.
The evidence for the prosecution
The appellant, who worked as a process server, was a friend of the complainant's mother and had agreed to spend time with the complainant while she was recuperating from an operation and her mother was at work. After the complainant was released from hospital in June 1994, the appellant visited her on six occasions. On the first of these occasions, he took her with him while he served some documents. Later that day he took her to lunch at a Chinese restaurant. On four of the following five occasions, he also took her with him while he served documents. The complainant assisted the appellant with the photocopying and stamping of summonses. On each of their outings, the appellant made suggestive comments and gestures. On a visit which took place on 23 June, the appellant told her that if she were 21, "I'd have you". He took her by the shoulders, pulled her down to his chest, and kissed her on the cheek.
On Monday 4 July, the appellant arrived at the complainant's house around noon. The complainant said that she was sure about the date because "American Independence Day helps me to remember". She left the house with the appellant to help him deliver some summonses. At about 1.30pm, the appellant took her to her mother's place of work in the Melbourne suburb of Richmond where the complainant handed her mother a piece of chocolate cake. The complainant then accompanied the appellant to a number of suburbs around Melbourne while he delivered summonses.
At around 5.30pm, the appellant said that he was tired and that he usually had a sleep at this time of day. He stopped the car in a laneway beside a church at 6.00pm; the complainant was able to identify the time because of a radio announcement. The appellant slept until 6.30 or 6.40pm. When he awoke he took her right hand, sucked her fingers and rubbed her arm and left breast through her clothes. The rubbing was rough and "hurt a lot". The complainant responded by bending down, putting her backpack on top of her lap and pushing herself into the corner of the car seat.
After the appellant re-commenced driving, he rubbed the complainant's breast. When they were near the Melbourne Casino she told the appellant "it was rough ... I definitely told him he was hurting me and I told him not to". The appellant had his hand inside her bra. He touched her so roughly that he nearly ripped her necklace. The appellant also placed the complainant's hand on his thigh and tried to put her hand on his crotch.
The appellant then drove her to his home where he offered her alcohol which she refused. After playing his answering machine, which contained a message from the complainant's mother, he led her to his study where, despite her resistance, he put her onto his knee. He put his hand under her dress and touched her leg and thigh. She prevented him from touching between her legs. He put his other hand under her jumper. When she tried to move away, the appellant pulled her towards him, kissed her and bit her lip.
The complainant told the appellant that she wanted to call her mother. He allowed her to do so but told her that she had "better not tell mummy what's going on, she might not like it". The complainant did not tell her mother what had occurred because she was scared and because she did not know what the appellant would do. While she was on the phone, the appellant tried to put his hands up her dress.
After the complainant finished the phone call, she started to walk towards the door. The appellant put his arms around her from behind. He told her that she was exciting and that she was horny. Despite her protests, the appellant then took her to his bedroom and pushed her on to the bed. When she got up to leave, the appellant sat her back down again. He kissed her, pushed up her jumper, unbuttoned her dress and sucked and bit her breast. She told him that he was hurting her. The appellant then rubbed the area between her legs on the outside, and then on the inside, of her underpants. On two occasions, the appellant digitally penetrated her vagina while she was on the bed. After the second of these occasions, the appellant said: "I could fuck you silly right now". The appellant then placed the complainant's hand on his crotch and moved her hand over his erection.
As I have said, the complainant's evidence concerning these matters was the basis of eleven charges of various forms of sexual assault.
After the incidents occurred, the appellant drove the complainant to her home but he did not go inside. On the way home, they stopped and picked up some dinner at McDonalds. When the complainant got home, she threw the McDonalds bag on her mother's bed and had a shower. She noticed blood in her underpants. Her vagina and breasts stung. She cried and then fell asleep while she was in the shower. Her mother woke her.
The complainant did not complain of any of these incidents until 18 August, over six weeks after they had occurred. She said that she did not tell her mother when she returned home on 4 July because she thought she "was overreacting and didn't need to mention it".
The complainant's account was supported in important respects by her mother who said that, on 4 July 1994, her daughter had delivered her a slice of chocolate cake at work. Before the cake was delivered, the appellant had phoned her and asked if he could take the complainant with him while he delivered summonses. She said that later on that day she had telephoned her home to speak to her daughter. There was no response as late as 7.00pm. She finally telephoned the appellant's house and left a message on his answering machine. The complainant's mother said that, at least 45 minutes later, she received a call from her daughter who said that she was at the appellant's house. Her daughter sounded agitated and evasive. The complainant's mother said that her daughter arrived home around 9.00 or 9.30pm and "flew past my bedroom door and threw a bag with some McDonalds on my bed". She confirmed the complainant's evidence that the complainant had fallen asleep in the shower and that she had woken her up. She said that her daughter "didn't - wouldn't talk".
The evidence for the appellant
The appellant gave evidence in his defence. He denied the complainant's allegations and said that, although the complainant and her mother were known to him, he had not been with the complainant on 4 July 1994. He claimed that no one accompanied him while he served summonses in the Melbourne suburbs of Thornbury and Fairfield throughout that day. He produced affidavits of service which showed that he had served process at regular intervals throughout the afternoon and evening of 4 July, the first at 12.21pm and the last at 9.18pm. He had a break between 1.30 and 3.53pm, when he drank coffee with one of the people he had served. He said that the affidavits of service had been written up by his wife from his records and that he had sworn them before a police officer on 8 July. Unless the jury were convinced beyond reasonable doubt that this evidence was false, they could not possibly have convicted the appellant. If the affidavits of service were correct, the appellant was engaged in serving process at all material times when the complainant alleged that the offences took place in the car when it was parked in a laneway beside a church and at the appellant's home[15]. Consistently with the affidavit evidence, the appellant could have committed the offences that the complainant said had occurred during the driving. But if the appellant could not safely be convicted of the offences alleged to have occurred in the laneway or at his home, he could not safely be convicted of any offences against the complainant.
[15] Between 5.30 and 9.30pm on 4 July, the affidavits of service verified service of process at 5.45, 5.52, 5.58, 6.02, 6.13, 6.18, 6.20, 6.50, 7.10, 7.45, 8.09, 9.02, 9.04 and 9.18pm.
The appellant also produced bank records which indicated that he had used an Eftpos card to purchase petrol from a service station in the Melbourne suburb of Thornbury at 5.10pm on 4 July. Witnesses called on the appellant's behalf verified the bank records and gave evidence relating to the nature of his work and the swearing of affidavits.
The evidence and directions on the complainant's motivations for fabrication
During cross-examination, counsel for the appellant put to the complainant that she had told a friend that she had a crush on the appellant. Later, the following exchange took place between the appellant's counsel and the complainant:
"Q: This is some sort of pay back on [the appellant] for some indiscretion he doesn't even know about, isn't that right?
A: No, I am not lying."
When the appellant was being cross-examined, he was reminded of the above exchange. He was asked:
"Q: So far as you are concerned there is absolutely nothing about your behaviour towards [the complainant] in the past prior to the 4th July, or at all, that would account for her making such an allegation against you?
A: I have, as I said before, under question from [the appellant's counsel], in reference to this - no, I have done nothing.
Q: So even with the benefit of hindsight, or as in the time that has elapsed from the time you were questioned by police - which is about August of 1994 - until now, you are still at a loss?
A: Yes."
The issue was raised again towards the end of the appellant's cross‑examination:
"Q: At this stage, as you sit there today, you can't think of any reason, or anything you have done to her - ?
A: No, I haven't.
Q: As to why she would make this up?
A: I am saying that to you, that is correct."
No objection was made by the appellant's counsel to this cross-examination.
In charging the jury, the trial judge gave directions which included the following:
"It comes down in this case to a question of veracity, or truthfulness. It seems to me the ultimate question is 'Are you satisfied on the basis of all the evidence that you have heard that [the complainant] was truthful?'. Of course, you must ask yourselves whether she was accurate, but the gist of the dispute is not as to her accuracy so far as describing the events that she said happened to her, but as to whether she is telling the truth when she says they happened to her at the hands of the accused man.
It is axiomatic that human beings tell lies ...
...
That people tell lies is notorious and manifest, and that people tell lies at times without any discernible motive for them to do so, is also a matter of commonplace knowledge.
...
Now people do tell lies of that sort. I am not saying anything, let me reiterate, about this particular complainant ... but I simply draw your attention to the fact that it is known that people tell lies, and tell lies without any dishonourable motive. It may, of course, come from their psychological state; some sort of neurosis. Sometimes, teenagers tell lies about their parents and to their parents, perhaps based on a feeling of antipathy because of perceived neglect or disregard, or for all sorts of reasons. And it is incumbent on you to bear that simple truth in mind in assessing the evidence.
...
Of course, a person may give an account of events that is detailed and ostensibly very plausible. They may be describing a true incident, but for some reason, they may simply attribute that incident to the wrong person ... So there are all those things, and I am simply putting those as general considerations to bear in mind for the sake of being careful about the verdict that it is your responsibility to return.
...
... Of course for the accused's part this is nothing more than the development of an invention that comes about for some reason not discernible, whether as a result of neurosis or whatever it might be on the part of this young child.
...
... The philosophy behind the criminal law, it is sometimes said, is that it is weighted in favour of accused persons for the sake of freedom of the individual in the community. It is a safeguard from being falsely convicted, and therefore it is better that nine guilty men escape than one innocent man should be convicted. It is obviously an appalling prospect that a man should find himself simply named by some person who is perhaps neurotic or psychologically ill or for some reason substituted him for somebody else, and made him the person who performed a series of acts that did occur but which he did not take part in and that he says he did not take part in and had nothing to do with it. Nobody said he had anything to do with it, until 18 August."
The jury convicted the appellant on all counts in the indictment except count three (committing an indecent act with a child under the age of 16) and counts eight and ten (taking part in an act of sexual penetration with a child aged between 10 and 16). Counts eight and ten were expressed as alternatives to two rape charges in the indictment on which the appellant was found guilty. Applications by the appellant for leave to appeal against his conviction and sentence were unanimously dismissed by the Court of Appeal of the Supreme Court of Victoria (Brooking and Hayne JJA, Southwell AJA) on 10 September 1996.
The relevance of questions addressed to an accused person about knowledge of a complainant's motivations for fabrication
Central to this appeal is the issue that was raised when the complainant was cross-examined about a potential motive for fabrication. She denied that she had made a false complaint because she wanted to "payback" the appellant for an unreciprocated "crush". The courses which were open to the Crown and the appellant to support or refute this denial necessarily depended on the proper characterisation of the question and answer dealing with the complainant's motivation for fabricating her allegations. If evidence concerning this issue is properly regarded as going solely to the credit of the complainant, two evidentiary rules would come into play.
First, the well established[16] finality rule would apply. That rule stipulates that answers given by a party or witness in cross-examination regarding collateral facts such as credit must be regarded as final[17]. If that rule applied, neither the appellant nor any other witness could give evidence of facts that would rebut the complainant's denial that she had fabricated the complainant. However, there are exceptions to the finality rule. Probably the best known is that, if a witness denies in cross-examination that he or she has been convicted of an offence, the opposite party may tender evidence of the conviction[18]. Similarly, where the credibility of the witness is affected by a mental or medical condition, evidence as to that condition may be tendered[19]. Another exception is where the veracity of a witness has been attacked in cross-examination. In that case, evidence may be led concerning the witness's general reputation for veracity[20]. Conversely, where a suggestion of bias on the part of a party or witness is denied by that party or witness in cross-examination, evidence may be led to establish the bias[21].
[16] Harris v Tippett (1811) 2 Camp 637 [170 ER 1277]; Attorney-General v Hitchcock (1847) 1 Ex 91 [154 ER 38].
[17] Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 545 per Latham CJ, 551 per Starke J; Natta v Canham (1991) 32 FCR 282 at 295.
[18] Bugg v Day (1949) 79 CLR 442 at 465; see also Evidence Act 1958 (Vic), s 33.
[19] Toohey v Metropolitan Police Commissioner [1965] AC 595.
[20] R v Watson (1817) 2 Stark 116 [171 ER 591]; R v Richardson [1969] 1 QB 299.
[21] Thomas v David (1836) 7 Car & P 350 [173 ER 156]; R v Phillips (1936) 26 Cr App R 17.
Second, the "bolster rule" would apply. That rule stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked[22]. Applied to this case, the bolster rule would prevent cross-examination of the appellant as to his absence of any knowledge of the complainant's motives for fabricating the charges.
[22] "[I]n general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up" R v Turner [1975] QB 834 at 842.
Accordingly, if the issue of the complainant's motivation for fabricating her complaint is regarded as going merely to credit, her answer would be regarded as final under the traditional rules of evidence. It could not be contested by the appellant's counsel (the finality rule) or supported by her own counsel (the prohibition on bolstering). However, in my view evidence concerning the motive or lack of motive in the complainant for falsifying her complaint is admissible not only in relation to her credit but also in relation to the facts‑in‑issue in the case.
The line between evidence relevant to credit and evidence relevant to a fact‑in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts-in-issue as productive of absurdity[23]. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them[24].
[23] The Principles of Criminal Evidence, (1989) at 98.
[24] See Ligertwood, Australian Evidence, 2nd ed (1993) at par 7.96.
The rationale behind the credit and facts-in-issue distinction does not depend on logic. It "is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness"[25]. It is rooted in the need for "case management"[26] rules. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that "they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue"[27]. It is for that reason, as Lord Pearce pointed out in Toohey v Metropolitan Police Commissioner[28] that "[m]any controversies which might ... obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them".
[25] Natta v Canham (1991) 32 FCR 282 at 298.
[26] Natta v Canham (1991) 32 FCR 282 at 296.
[27] Toohey v Metropolitan Police Commissioner [1965] AC 595 at 607 per Lord Pearce.
[28] [1965] AC 595 at 607.
That being so, the evidentiary rules based on the distinction between issues of credit and facts-in-issue should not be regarded as hard and fast rules of law but should instead be seen "as a well-established guide to the exercise of judicial regulation of the litigation process"[29]. This view is consistent with the statement of that formidable advocate and judge, Sir Hayden Starke[30], in this Court in Piddington v Bennett and Wood Pty Ltd[31], where he accepted that the finality rule is "a rule of convenience, and not of principle". To elevate the finality rule and the prohibition on bolstering to fixed rules of law rather than rules of convenience would be a mistake, particularly as the finality rule has been strongly criticised.
[29] Natta v Canham (1991) 32 FCR 282 at 298.
[30] See 97 CLR at iv and v.
[31] (1940) 63 CLR 533 at 551, citing Christian J in R v Burke (1858) 8 Cox CC 44 at 53.
In R v Funderburk[32], the English Court of Appeal criticised the dependence of the finality rule on the determination of "collateral facts". The Court said[33]:
"The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so-called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor's and the court's sense of fair play rather than any philosophic or analytic process."
In its Report No 26, Evidence (Interim) (1985) and Report No 38, Evidence (1987), the Australian Law Reform Commission pointed to the considerable potential probative value of evidence which is relevant only to contradict the testimony of another witness[34]. The finality rule was criticised as "an artificial and inflexible limitation which may result in the court being misled"[35].
[32] [1990] 1 WLR 587; [1990] 2 All ER 482.
[33] [1990] 1 WLR 587 at 598; [1990] 2 All ER 482 at 491.
[34] Australian Law Reform Commission Report No. 26, Evidence (Interim), (1985), vol 1 at 226; Report No 38, Evidence, (1987) at 105.
[35] Australian Law Reform Commission Report No 26, Evidence (Interim), (1985), vol 1 at 226.
No doubt considerations of case management require that not all evidence going to the credibility of a witness should be admissible. Much of it, while relevant to the issues in a logical sense, has so little probative value with respect to those issues that it is impracticable to admit it. For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness's denials on matters going to credibility is not ordinarily admissible. In this, as in other areas of the law of evidence, a distinction exists between what is relevant[36] and what is admissible. In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of a relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof[37]. If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue.
[36] I use relevant in the sense explained by Sir James Stephen in his Digest of the Law of Evidence, 5th ed (1887) art 1 at 2:
"The word 'relevant' means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other."
[37] See Evidence Act 1958 (Vic), s 37(b).
Although this measure of common ground removed some of the controversy from this case, fundamental questions remain. To what extent do repeated suggestions that the accusations of the accuser are false give rise to an entitlement in the prosecution to explore, factually, the relations of the parties in the hope of demonstrating the unlikelihood that false accusations have been made[88]? What is the judge to do where, as in this case, the question "why would I be lying anyway?" is asked (initially) not by the prosecutor but by the complainant during evidence? How directly must the accused raise the issue of the complainant's motivation so as to authorise the prosecutor to test that suggestion and to demonstrate from out of the accused's mouth, or otherwise, a lack of perceived or known motivation in the accuser to make false charges? And, if it be true that the question of the complainant's motivation "hangs over" most criminal trials of this character, would it not be preferable to arm the judge with authority, at least in defined cases, to allow questions to be asked of the accused but under condition that a strong judicial direction to the jury will be given that failure or inability on the part of the accused to establish a suspected motivation does not establish that the accusation is truthful?
[88] cf R v Leak [1969] SASR 172 at 173-174 per Bray CJ, Hogarth and Walters JJ.
Arguments for allowing questions and requiring directions
A number of arguments support the proposition that the law should not completely prohibit questions and comment by the prosecutor and the judge concerning the accused's knowledge of the complainant's motivation, even where the accused had not directly raised the issue:
1. It seems to be commonly believed that the question is one which juries will ordinarily ask themselves. This is scarcely surprising. Cases exist[89], including in this Court[90] where judges have posed the same question. The number of trials in which the question arises in cross-examination, and the number of appeals in which the issue has been ventilated, demonstrate a natural propensity of the mind to ask whether any motivation might exist to explain what would otherwise be truly wicked conduct.
2. The factual foundation for exploring the question is a conviction that most people, without a wrongful motive, would not accuse another human being of a grave criminal offence, persist in the accusation and repeat it in a solemn public trial without having a proper basis for doing so. Whilst judicial instruction on the onus and burden of proof may provide the desired corrective, if the foregoing presupposition does affect the collective mind of a jury, a serious question of legal policy is presented as to whether it ought not to be explored at the trial, with the benefit of very strong judicial warnings, rather than left to jury speculation with the professional participants ordinarily bound by a code of silence.
3. Even if lawyers observe the rule of silence, they cannot wholly control what witnesses will say. This is demonstrated by the evidence of the complainant in this case. She saw it as implicit in the repeated attacks on her truthfulness that she was being accused before the jury of inventing her accusation. She responded by asking the question which it is assumed the jury themselves would be asking: why would she lie? Her spontaneous outburst demonstrates how difficult it may be, in practice, to uphold a complete prohibition against mentioning the question. If it is relevant for an accused person to establish affirmatively an interest, purpose or motive in the accuser to make false accusations, is it not inevitable that a jury will speculate about whether such motivations exist and what they might be? Applying commonsense and ordinary human experience, the jury in the present case would surely have been asking themselves: is the accusation perhaps the product of the imagination of this young woman? Is she saying these things of the accused because she is just reaching puberty, has recently been ill, is left alone at home by her mother, perhaps jealous of her mother's friend whom she admitted describing to her own friend as "cute"? The primary judge tried to express this idea in the one part of his direction to which the appellant took the strongest objection. The judge said[91]:
"Of course for the accused's part this is nothing more than the development of an invention that comes about for some reason not discernible, whether as a result of neurosis or whatever it might be on the part of this young child."
The appellant had not suggested a neurosis. Inherent in the appellant's case was the proposition that the complainant had told a lie about his conduct and had then become caught up in a commitment to that lie within the formal paraphernalia of a trial in which her pride and veracity were at stake, but in which he stood to lose much more.
4. The better course, so it was argued for the Crown, was to trust juries to bring "ordinary human experience"[92] to bear on this issue rather than to sweep that issue under the carpet and to hope, by silence, that no harm would be done. To forbid appropriate questions and to omit appropriate judicial directions would be to condone jury speculation on unknown motives without any real judicial help on the way such issues should be handled. This course demonstrates, so it was suggested, a want of faith in the capacity of a jury in contemporary Australia to act properly on judicial directions about the complainant's possible motives. It also overlooks the fact that the rule of silence, established for cases of accusations of sexual misconduct, would ostensibly also apply to trials involving other crimes where provision of judicial assistance to the jury would conform to the ordinary conduct of jury trials in Australia.
[89] See for example R v HPP (1996) 112 CCC (3d) 140 at 147.
[90] See for example McHugh J in M v The Queen (1994) 181 CLR 487 at 535-6.
[91] Cited by Brooking JA Palmer v Director of Public Prosecutions unreported, Court of Appeal of Victoria, 10 September 1996 at 15.
[92] Crofts v The Queen (1996) 186 CLR 427 at 451.
Arguments against permitting questioning on motives
The foregoing arguments have force. But so do the arguments which reject any loosening of the general prohibition on initiating questions of an accused as to the possible motivation of the complainant to make false accusations:
1. No witness can give factual evidence about the motives of another person. Even evidence about a past dispute or suspected reason for a false accusation will not prove the motivation of the accuser. Such motivation may be unknown to the accused. It may even, possibly, be unknown to the accuser. To open the issue will necessarily invite intense speculation by the jury which it is difficult, or impossible, to settle by evidence[93]. If this line of questioning were permitted and the accused were to say that he or she did not know the motives of the accuser, such evidence might tend to help the prosecution. The accused would be driven to conceding that he or she cannot point to, and demonstrate, an improper motive. The diversion could seriously damage the accused in a matter in which ignorance or mystification might be completely justifiable.
2. By initiating questions as to the accused's knowledge of the motivations of the accuser, the risk may be run of effectively shifting the burden of proof at the trial to the accused, such that he or she was virtually obliged to demonstrate the falsehood and improper motives of the complainant[94]. General instructions about the onus of proof may then become swamped by overt speculation which it is impossible to satisfy. If the accused elects to make an issue of that question, by affirmatively suggesting a motive or reason for such falsehood, that may open the door to having the allegation tested. But in the absence of such affirmative suggestion, permitting such questioning and inviting judicial comment about it, may simply intensify, but not satisfy, the question which "hangs over" a jury trial of this kind.
3. In most parts of Australia the facility of an unsworn statement by the accused has now been abolished. Ordinarily, therefore, the accused will give evidence in cases of this kind. To permit the opening up of questions about an accuser's possible motives effectively requires the accused to become an advocate, but from a position of weakness in the witness box and on a subject about which the accused may have suspicions but no sure means of knowledge. The fact that the accused cannot affirmatively establish, or even possibly nominate, a reason why the accuser should make such a false accusation adds nothing logically to the credibility of the accusation. Yet permitting the line of questioning might give legitimacy to the reasoning that the accusation must be correct because no motive to lie can be demonstrated[95]. The balance of the trial might then be endangered. That danger explains the strict limitations which have been imposed, both on prosecutors and judges, both in Australia[96] and overseas[97].
4. Taking the stance that questioning relevant to an accuser's motives is not permissible, unless initiated by the accused, does not (so it was argued) evidence a want of faith in the commonsense of the jury, or a mistrust of the jury's capacity to resolve the question in a principled way, with the assistance of firm judicial directions. Instead, it represents the adoption of a simple rule which is relatively easy to apply. It is a rule which gives clear instruction to the prosecutor and the judge. It discourages needless appeals. It keeps the focus of the trial on the correct question and away from potentially prejudicial speculation. Although it is true that the issue can arise in the context of non-sexual offences, it presents itself in its most acute form where the accusation charges sexual misconduct. It is of the nature of such matters that caution is still required to prevent the risk of false accusation leading to wrongful conviction. Although there are dangers in a rule of silence, there are greater dangers to the fair trial of the accused in permitting the complainant's motivation to be opened up where the accused has refrained from doing so.
[93] R v E (1996) 39 NSWLR 450 at 464.
[94] R v Leighton (1994) 155 NBR (2d) 211 at [9].
[95] cf R v E (1996) 39 NSWLR 450 at 464.
[96] See for example R v E (1996) 39 NSWLR 450; R v Uhrig unreported, Court of Criminal Appeal of New South Wales, 24 October 1996; R v G [1994] 1 Qd R 540.
[97] See for example R v Vandenberghe (1995) 96 CCC (3d) 371 at 373; R v AF (1996) 93 OAC 102.
Conclusion: the prohibition should be maintained
The foregoing arguments of legal principle and legal policy are evenly balanced. For my own part, I would generally favour an approach which accepts the capacity of a jury, with appropriate judicial assistance, to give such weight to evidence and submissions about the accuser's motivations as they consider proper in the context of a trial in which the Crown must prove all elements of the charges brought and do so beyond reasonable doubt.
However, although no authority of this Court binds us to a particular outcome, I have concluded that it would not be harmonious with the principle adopted in Robinson v The Queen[98] to permit questions to be asked or suggestions to be made that the accused's evidence is weakened, or the complainant's strengthened, by the inability of the accused to explain why the complainant would lie. In Robinson, this Court adopted a rule forbidding questions or comment which would suggest that the accused's evidence, denying the offences charged, is to be the subject of close scrutiny because of the interest which the accused necessarily has in the outcome of the trial. This Court held that to permit, in that case, judicial directions (but by inference also questions making the same suggestions) would undermine the presumption of innocence which the law accords to an accused person[99]. This ruling has attracted some criticism[100]. It has been said that it has given rise to different interpretations as to the strictness of the principle established[101]. But as I read the rule in Robinson, it is a simple one, easy to apply. Neither by questions nor submissions, nor by judicial directions may it be suggested that an accused's denial is undermined, and an accuser's accusation strengthened, by the obvious fact that the accused has an interest in acquittal. The forbidden imputation about the accused's motive to lie to secure acquittal has, as its counterpart, a prohibition on the investigation of the motivation, if known, of the accuser to lie, realising as the accuser must that this could result in the accused's conviction and punishment. If the one is forbidden by the authority of this Court, it is impossible, as a matter of principle, to permit the other. Each has a tendency to undermine the protection afforded by the burden and onus which rest upon the prosecution throughout the trial.
[98] (1991) 180 CLR 531.
[99] (1991) 180 CLR 531 at 535-536.
[100] Gans, "Directions on the Accused's Interest in the Outcome of the Trial" (1997) 21 Criminal Law Journal 273 at 287-290.
[101] Gans, "Directions on the Accused's Interest in the Outcome of the Trial" (1997) 21 Criminal Law Journal 273 at 276-277.
The principle in Robinson has since been re-affirmed by this Court in Stafford v The Queen[102]. In this appeal, it was not suggested that the principle was wrong. Whilst it does not, as a matter of legal authority, determine the present case, any rule which permitted questioning of the accused about the accuser's motivations, or which encouraged elaboration of that issue by a prosecutor or judge where it had not been initiated by the accused, would be difficult to reconcile with it. In circumstances where the arguments of principle and policy are so finely balanced, the adoption of a rule which is harmonious with an analogous principle earlier accepted by the Court is, for me, decisive.
[102] (1993) 67 ALJR 510.
Result: a new trial should be ordered
If a rule forbidding questions of the accused on the accuser's motivation is to be applied there remains the issue whether a retrial should be ordered in this case. Two reasons were suggested by the Crown as to why this was unnecessary. They were that the issue had been opened up by the questions asked of the complainant by the appellant's counsel and that any risk of miscarriage of justice had been removed by the primary judge's strong directions to the jury. In Stafford[103], the trial judge had infringed the rule in Robinson. Denying special leave, this Court held that the overall effect of the judge's remarks was favourable to the accused and no miscarriage of justice was shown. Similar submissions were advanced in this case.
[103] (1993) 67 ALJR 510 at 511.
I do not regard the question asked of the complainant as opening the issue of her motivation to lie in a way that justified the later questioning of the appellant by the prosecutor. Whilst the questions put to the complainant were risky, their terms made it plain that, far from suggesting a motive, the appellant did not know what that motive was[104]. To authorise highly prejudicial questioning of an accused of the kind that followed would require a much clearer suggestion of an improper motive on the part of the complainant than was made.
[104] "This is some sort of pay back on him for some indiscretion he doesn't even know about, isn't that right?".
As for the charge to the jury, it is true that it was generally fair, even favourable, to the appellant. However, by introducing the suggestion of a "neurosis or whatever" on the part of the complainant - one which had not been proposed by or for the appellant - the judge again drew attention to the issue of motivation. He might have been understood to mean that, unless the jury were satisfied that the complainant was suffering from a "neurosis or whatever", no motive had been shown to lie so that the complainant's evidence could be accepted as truthful. This is precisely the danger of illogical reasoning, destructive of the presumption of innocence, that the law forbids.
Orders
The orders of the Court, which followed the majority's conclusions, were pronounced on 2 December 1997. However, in my view the appellant was not entitled to an acquittal. A retrial was neither futile nor necessarily unjust.
The orders which I favoured were that the appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of Victoria should be set aside. In lieu thereof, the appellant should have leave to appeal against his conviction. Such appeal should be allowed. The conviction should be quashed and a new trial ordered.