Deriz v R [1999] WASCA 267

Court of Appeal (WA)|1999-11-24|Before: Parker J, Ipp J, Wallwork J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DERIZ -v- R [1999] WASCA 267

Criminal law - Conduct and duty of counsel for the prosecution - Whether observations in opening unduly inflammatory

Criminal law - Evidence - Sexual offences - Admissibility of police questioning - Whether accused could identify motive of complainant to lie - No objection to admissibility at trial - Not wrongly admitted

A Child v Andrew (1995) 12 WAR 552

Bellissimo v The Queen, unreported; CCA SCt of WA; Library No 950457; 30 August 1995

R v Armstrong (1989) 53 SASR 25

Wace v The Queen, unreported; CCA SCt of WA; Library No 980124; 24 March 1998

1 IPP J: I have read the reasons to be published by Parker J. I agree with them and his Honour's conclusions. I have nothing further to add.

2 WALLWORK J: On 19 February 1999 the appellant was convicted of six charges involving offences against a woman. He has appealed against those convictions and the following are my reasons for judgment.

3 Originally there were eight charges laid against the appellant and they were all tried together. At the end of the trial he was acquitted on two of those charges and convicted on the remaining six.

4 The first ground of appeal claims that the learned Crown counsel's opening address was excessively inflammatory and likely to mislead the jury as to the burden and standard of proof.

5 In the course of his opening the prosecutor referred to barbaric acts said to have been committed in the name of love. He also referred to barbarous activity. He also urged the jury to accept that what the complainant would say was true and told the jury that it would be for them to determine whether they accepted her words "when she says that a series of sexual atrocities happened to her and that she was not consenting".

6 The allegations made by the young woman concerned the accused allegedly putting a pillow over her face, tying her to a bed with both ankles and blindfolding her, performing various sexually degrading acts upon her body without her consent and inserting two different objects into her vagina without her consent. He was alleged to have applied heat to various parts of her and sexually penetrated her in a number of ways, all without her consent.

7 When he was interviewed by the police, it was said that the appellant had admitted much of the conduct but said he had done it with the woman's consent. The prosecution said that he had done the various things to her because he was angry with her and that he wished to humiliate her.

8 Having carefully read the opening by the learned prosecutor, in my view it was not excessively inflammatory or likely to mislead the jury in any way. There was no question of the learned prosecutor "fighting for a conviction". In the course of the opening, the learned prosecutor said:

"At the end of the day, at the end of the trial, I will urge you to accept that what she says is true. I will suggest to you that her evidence, standing alone, is sufficient to satisfy you beyond reasonable doubt of the guilt of the accused of these eight charges."

9 It was suggested that it was wrong to "urge" for a conviction, but in its context, in my view, the comment did not overstep the proper role of a prosecution counsel.

"That the learned trial Judge erred in law in directing the jury 'but there were only two people there so it was his word against hers', which direction was likely to mislead the jury as to the burden and standard of proof."

11 This ground was directed at a section of his Honour's direction which said:

"Mr Elliott said to you at the opening there were only two people there; that's what sex is usually like; sexual matters are usually private matters, and even if they're nonconsensual, they don't get performed in public; this is the nature of sexual behaviour; whether private and consensual or nonconsensual, you usually find there are only two people there; it's unlikely that you will expect to see somebody looking through a window, and so on. So because there are only two people there you only really have two people's word for what happened...."

12 It was submitted that in essence his Honour seemed to have given his imprimatur to the trial being a one-on-one contest without having regard to the fact that the Crown bore the onus of proof. It was said that the danger was that his Honour was inviting the jury to adjudicate a two-way contest and perhaps come to a conclusion based on which was the more favourable view. It was contended that his Honour had reinforced that proposition later on in his direction when he said concerning the appellant:

"He told them his story which has always been that she was an active and willing participant, and as to why she says she was not, it is not his job to prove, but he suggests to you through Mr Bennett it may have been either jealousy at seeing him with other men or the possibility of money, but there were only two people there so it's his word against hers. The onus is on the Crown and if you have a reasonable doubt either about the fact of consent or about his honest and reasonable belief in consent, given a pre-existent history in relation to the sexual matters I have talked of, he is entitled to the benefit of the doubt and to an acquittal."

13 It was said that there was a danger that the jury may have been seduced to a lesser standard of persuasion than might have been appropriate.

14 In the course of his summing-up, the learned trial Judge, on my count, referred to the burden on the Crown of proving its case beyond a reasonable doubt on at least 18 separate occasions. I cannot remember having seen a direction where the burden was referred to more often.

15 In my view the second ground of appeal is not sustained.

16 The third ground of appeal was that the learned trial Judge erred in law "in directing the jury that, in effect, recent complaint might amount to a corroboration of the complainant's evidence".

17 It was conceded that his Honour's initial direction as to complaint was correct. It was conceded that there had been a "classic" fresh complaint and also that his Honour had talked of the complaint evidence as being admissible in support of the complainant's truthfulness. However, it was said that the learned Judge did not actually say that it was only relevant in that regard. It was submitted that he ought to have said it could only be used for that purpose.

18 Complaint was made of his Honour's comment: "So the Crown says it doesn't prove what she is say is true or false, but it's consistent and therefore it supports her case." Immediately following that his Honour said: "It's something you can look to when you're deciding whether she is telling the truth or not". A little later on, his Honour said: "...but if you accept that it was made, the Crown says it's consistent conduct which you should treat as supportive of her evidence." It was said that a complaint could not support what a witness said but only the fact that she might have been telling the truth. A complaint could only be supportive of her credit, not of her case, and not of her evidence - that is the subject matter of her evidence. It was said that the complainant's case was that the activity was nonconsensual. That it had all occurred in a non-consensual way.

19 In Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 462, Barwick CJ said:

"The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest, but merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence."

20 To say that a person's evidence is credible means that it is believable or worthy of belief - The Concise Oxford Dictionary.

21 It is clear from his Honour's comments that he was telling the jury that the complaint could be taken into account when the jury was deciding whether or not the complainant was telling the truth. He was not suggesting that the jury could look at it generally as supporting the Crown case.

22 In my view his Honour did not make any comment concerning complaint which could have led to a miscarriage of justice. This ground of appeal is not sustained.

23 The next ground of appeal which was argued was that the learned trial Judge erred in his direction to the jury concerning the video record of interview and may have misled the jury as to the onus of proof and the use to which the video evidence could be put.

24 It was submitted that the Judge needed to give the jury a direction that the video evidence was evidence which could be taken into account in assessing the appellant's case and on his behalf, because in his video the appellant had stated that the relevant events had happened by consent, or at least that he had had an honest and reasonable, albeit perhaps mistaken, belief in the complainant's consent. It was submitted that the learned trial Judge had failed to expressly direct the jury that the video was evidence, albeit it was not on oath and not subject to cross-examination.

25 Prior to the evidence being called at the trial the learned Judge had told the jury that it was counsel's task to put the evidence before the jury. He said:

"They do that by putting the evidence in front of you in the form of calling witnesses in court, asking them questions, testing the witnesses who are called by the other side. Sometimes in the trial evidence comes from another form than the evidence of witnesses in the witness box. Sometimes it might be plans or photographs or objects. Sometimes it might be a video or tape recording of something said outside the court, and so on, but the evidence which, as I say, usually mainly comes from the witnesses who are called into court but may take other forms, is put before you by counsel, usually by asking questions."

26 It was said that the learned Judge in this case should have addressed the status of the video and what use could have been made of it. It was complained that there was no specific direction in regard to what was evidence.

27 In the course of his summing up the learned Judge referred to the appellant having spoken to the police and that conversation being recorded on video tape. He said:

"He did not give evidence. That again is his right. He elected to, if you like, rely on the account that he gave to the police on the video. So you can't draw an adverse inference from the fact that he did not give evidence in this court. Mr Bennett says he told the truth to the police and you can accept his explanation to them."

28 Further on in his summing up the learned Judge said:

"You will have also with you in the jury room the objects, the photographs and documents and you will have access to the videotaped record of interview. If you want to see that again, just tell the Sheriff and we will clear the court or put a mobile in the jury room and you can do that because of course, those things are part of the evidence and Mr Bennett is inviting you to place weight on the record of interview given by the accused to the police."

29 It was contended for the appellant that the learned trial Judge had needed to say that the video was evidence in the case.

30 In my view his Honour told the jury that the video was evidence in the case and that they could place reliance on it.

32 The final ground of appeal was that the learned trial Judge had erred in failing to direct the jury as to the use which they could make of the failure of the appellant to explain the complaints made by the complainant.

33 In the course of the video interview the police officer had asked the appellant: "Why do you think she was upset?" The appellant had answered: "Well, I really couldn't fathom it at that stage, to tell you the truth, what the problem was. B used to get upset about all sorts of things, you know, and I was on the outer, I wasn't on the inner of these problems."

34 Further on in the video the appellant was asked: "Why do you think that she would go to a friend's house visibly upset, crying etc and then tell this person that you had done all these things against her will, without her consent?" The answer was: "Well, why didn't she confront me with those things when I met her in the park, saying it was against her consent? I don't know why she would have gone to Wes's place saying that you know. I really don't know. I do know that she has a very good relationship with that guy. They have been friends a long time." The question was then asked: "Any explanation for why she would have been so upset?" The answer was given: "Well I don't know. Like I'm saying, she was crying in the shower and I can't - still today I can't pinpoint out what it actually was that upset her. I don't know."

35 The next question was: "What about - have you got any explanation about why she would have gone to see a doctor to be examined after this happened?" The answer was given: "No idea. She hasn't told me that she done that."

36 The next question was: "No, but could you think of any reason why? If ... if ... if you're saying this has all happened with her consent and knowledge...." The answer was: "Mmm."

37 The next question was: "...and she was happy about it why would she have gone to the ...?" The answer was "Maybe because she wanted to get back to me for some reason or get back at me for some reason."

38 The next question was: "Pretty drastic measures though don't you think?" The answer was: "She's a pretty drastic person."

39 It is clear in my view that those questions by the police officer come within the scope of the words of Brennan CJ, Gaudron and Gummow JJ in Palmer v R [1998] HCA 2; (1998) 151 ALR 16 at 20 where their Honours said:

"But the fact that an accused person has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred, is generally irrelevant. In general an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts. If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case to ask an accused the question, 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused."

"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."

41 In their reasons for judgment their Honours referred to the words of Hunt CJ at common law in R v Uhrig, unreported; CCA SCt of NSW; 24 October 1996 where his Honour pointed out that 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". Hunt J said:

"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."

42 At this trial, before the commencement of his opening, the learned Crown Prosecutor advised the learned trial Judge in the presence of defence counsel that he had noticed a question in the video in the form that had been recently criticised in Palmer's case. He pointed to the passage which has been set out above in these reasons concerning "why she would have gone to Wes's place?" The learned Judge asked defence counsel: "You are specifically not objecting to those questions and answers?" His answer was "No, sir". The learned Judge said: "Alright. On that basis Mr Elliott I am not going to take it any further." There was some further discussion and the Judge said:

"But in any event as the defendant is not raising the matter I don't think I need pursue it any further."

43 At the hearing of this appeal it was said that the video went to the jury in that form without any objection.

44 It was submitted for the appellant that in those circumstances it had been incumbent upon the Judge to give an appropriate warning as to the use the jury might make of the abovementioned questions and answers. It was said that even when such evidence is admitted without objection and where it may serve a forensic purpose favourable to the accused, it should still be the subject of a specific warning by the trial Judge to avoid the lay mind using it for an impermissible purpose. It was submitted that the gravamen of the ground concerned the use the jury could make of the failure by the appellant to adequately answer the police officers concerning the complaint. It was submitted that the answers might have assisted the appellant's credit but that the obligation remained on the trial Judge to warn the jury that the appellant's failure to offer any satisfactory explanation did not enhance the credit of the complainant or the Crown case. The lay mind might well think that a person has to come up with an answer. That tended to reverse the onus of proof. It was submitted that the learned Judge should have told the jury that they could not form the view that an accused person might be guilty because he could not come up with a concrete answer to the relevant questions.

45 It was submitted that at the very end of his address and after discussing various answers which the appellant had given in the video, the learned prosecutor said:

"A parting thought: why would she make all this up? For money? Come into court, have this sexual ordeal paraded before you all - why? Of course, in addition to being paraded before you she would have had to have the foresight to feign distress to her friend. He wasn't challenged when he said, 'This lady came to my window in the wee small hours, 6.30 in the morning. She was crying. She was upset ...' She wouldn't go crying to her friend. That action on her part is consistent with what she said to you and I would urge you not to overlook that and when you come at the end of the day to examine all the evidence I would suggest to you that it's clear the only count you should have difficulty with is count 5 and I wish you luck with that one. Thank you Your Honour."

46 It was submitted that the learned trial Judge should have told the jury that it was not to reverse the onus of proof by drawing anything adverse to the accused from his answers to the abovementioned questions.

47 In this case the issues from the defence point of view were that there had been consent, or alternatively there had been an honest and reasonable mistake on the appellant's part about the existence of consent.

48 In Gill v The Queen [1999] WASCA 68, Pidgeon J when discussing some questions which had been asked of an accused person which were said to have offended the Palmer doctrine said:

"It is important, therefore, for the prosecution to consult with the defence and this the prosecution did prior to the trial. As a result of this certain portions were deleted. If the defence wished further portions deleted and if the prosecution were not willing, then it would be for the defence to ask the trial Judge to rule on it. A counsel, very experienced in the criminal jurisdiction, represented the appellant and no such request was made. I consider it understandable that no such request was made as I consider it could well be seen that the appellant's denials were more convincing in the context of the whole statement than they would have been if portions were deleted."

"I could well understand the defence considering that the statement in its original form was more convincing as to the appellant's account than it would be if there were the deletions now referred to. It explains why, on the appellant's view, allegations were made when they may not be true and this is a question that could be in the jury's mind if the matter had not been adverted to."

"It was nevertheless, in these circumstances, necessary for the trial Judge to direct the jury how they are not to use questions of this type and this his Honour did in clear terms. I consider in all these circumstances it cannot be said that the trial miscarried."

"It is clear that the learned trial Judge was alert nevertheless to the risk inherent in this evidence, that the jury would focus on the irrelevancy of the question 'Why would the complainant lie?' notwithstanding the defendant's acquiescence in its admission. His Honour directed the jury on this issue by drawing attention to it and to the submissions of counsel concerning it, in particular a submission for the Crown to the effect that the 'The complainant had no motive to put herself through this trial and to make these allegations."

'...it is of course impossible for an accused person to say what was in the mind or what is in the mind of the person accusing him or her of wrongdoing. People have all sorts of motives for doing all sorts of things. To look into the mind of your accuser is something which is simply not possible. There is a tendency to view such a question as an unfair question...More importantly, to ask that sort of question rhetorically as it were - why would the complainant be accusing the accused of doing this? - has a tendency to reverse the onus of proof and so more importantly, there is a danger if you focus too much on that question when you are deliberating upon a matter, that you might forget where the onus of proof in this case lies. Remember - let's go back to first principles. The onus of proof in this case, as in all criminal cases, is upon the prosecution. It is not on the accused. The accused does not have to prove anything and what is more, the prosecution must establish the case against the accused beyond reasonable doubt, and so it is not for the accused to prove some motive on the part of the complainant to falsely accuse him of something and to approach the matter thinking in that way, asking that question. Deliberating upon that basis presents dangers, members of the jury...It is not for the accused to satisfactorily answer, if he can, why the complainant is making what he says is a false accusation against him....'"

"Nevertheless, the learned trial Judge was alert to the risk introduced by this evidence. In view of his direct and clear direction to the jury and the position of the defence at trial on this issue, in my opinion in the particular circumstances of this case any risk of miscarriage of justice in this respect was sufficiently averted."

54 In the present case counsel for the appellant concluded by saying that in this case there was no such warning as had been given in Gill. It was never adverted to:

"We would say generalised directions as to the onus and standard of proof fall short of what was required, especially as was acknowledged by Pidgeon J in Gill's case."

55 In Palmer (supra) at 21, Brennan CJ, Gaudron and Gummow JJ said:

"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."

"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."

57 In my view those last mentioned words from Palmer apply in this case. The appeal should therefore be allowed and a new trial ordered.

58 PARKER J: The appellant was convicted on 19 February 1999 in the District Court of one count of rendering a person incapable of resistance with intent to commit an indictable offence and five counts of sexual penetration without consent. The jury acquitted the appellant of two further counts. The appellant was sentenced in all to an effective term of 5 years imprisonment with eligibility for parole.

59 In the end five grounds are pursued in support of this appeal. There is no need to set them out in full as I will deal with the substance of each in turn.

60 The complainant and the appellant had an intimate relationship for some four months before the events the subject of these convictions. They all occurred on the evening of St Valentine's Day, 14 February 1998 or in the early hours of the following morning. That evening the complainant with the applicant and other persons had dinner at a restaurant after which the appellant dropped the complainant off at her home on the basis that she would come over to his house later. She arrived at his house just after midnight. After a time they engaged in an act of consensual sexual intercourse. During this act, however, the appellant tied the complainant's wrists and ankles to the bedposts with satin sashes. It was the evidence of the complainant that she didn't want this but the appellant responded several times in an aggressive manner that she should "shut up bitch". It was her evidence that she had never suggested conduct of this type to the appellant. It was her evidence that the appellant turned up the volume of the stereo saying "No one can hear you scream" after she had screamed when he put a pillow to her face. It was the complainant's evidence that she was then blindfolded with another satin sash and that she was threatened that he would gag her if she said anything. It was her evidence that he then dealt with her in various ways which included inserting the handle of a duster into her vagina, striking her several times with a rod like object, inserting a string of pearls into her vagina and penetrating her with his penis while the pearls were in her vagina. It was her evidence that he also penetrated her several times with his penis and fingers and performed cunnilingus on her and that he clipped pegs on her nipples and clitoris. Then, she said, he untied her ankles, turned her over and penetrated her anus with his penis. It was her evidence that these conducts occurred over some three hours. In addition, while she was blindfolded it was her evidence that he caused her to believe that another person had come into the house and had joined him in his dealing with her. She had no idea who this was or whether the person was male or female. The accused deliberately tormented her about this.

61 The appellant's explanation to interviewing police and his case at trial was in essence that most of the acts of physical treatment of the complainant of which she had given evidence had occurred that evening but they had all occurred with her consent or at least that was his honest belief. It was his evidence that she had fantasised about conduct of this type with him including the presence of a third person and St Valentine's Day had provided an appropriate occasion for those fantasies to be acted out in reality. It was the appellant's evidence that after these incidents the complainant had showered, they had kissed and cuddled and talked together a little on the bed and had then fallen to sleep for the night. When he awoke in the morning he found that she had left.

62 It was the complainant's evidence that she had showered and had cried as she did so but that she had not attempted to leave the house because she believed the doors were locked, and she was in fear. So she had lain with the appellant until he had fallen asleep and she then managed to leave the house, hailed a taxi and went to the house of friends. One of those friends gave evidence of being wakened early in the morning by the complainant who was very upset and crying. She complained to him that the appellant had tied her up and sexually assaulted her. On the 16 February 1998 the complainant went to the Sexual Assault Referral Centre and later she went to the police.

64 It is contended that the opening by prosecuting counsel was inflammatory.

65 It is clear that prosecuting counsel is charged with the responsibility, in the proper discharge of his or her functions in a trial, of opening the prosecution case with fairness and accuracy and avoiding language likely to excite undue prejudice or emotion; Vella v R (1990) 2 WAR 537, Huynh v The Queen [1999] WASCA 45. It is often said that the impartiality which should characterise the presentation of the Crown case has the consequence that the prosecutor should not fall into the role of urging or fighting for a conviction; R v Roulston [1976] 2 NZLR 644.

66 It remains the case, however, that the nature of a criminal trial in our system of justice is adversarial. While the prosecutor must not pick and choose the witnesses or evidence to be presented so as only to favour a conviction, but should present impartially the available, relevant credible evidence, whether it tends for or against conviction, and should recognise and not seek to hide any weaknesses of the prosecution case, the impartial role of the prosecution in our adversarial system does not preclude advocacy which fully tests the defence case and which presents the case for a conviction clearly and forcefully and in the best light which it fairly bears. It is the antithesis of the true role of the prosecutor to seek by trickery or the exploitation of prejudice or emotion to secure a conviction. There is no impropriety, nevertheless, in a fair and balanced presentation of relevant evidence even though it may evoke prejudice or emotion. Nor is a prosecutor required to try and remove from the presentation of the prosecution case, or to neutralise, those relevant aspects which evoke prejudice or emotion. As the authorities continue to emphasise, it is undue prejudice or emotion which is to be avoided; cf Lyons & Lyons v R (1992) 64 A Crim R 101 at 104.

67 It is contended for the appellant that passages in the prosecutor's opening were unduly inflammatory. Words such as "barbaric", "barbarous", "sexual atrocities" and "hostages" were pointed to. The Crown's case, however, which is fully and entirely supported by the evidence which it led, identified conduct by the appellant of which those descriptions were not inappropriate. It is a matter of judgment and degree. While the Crown case could have been effectively presented without resort to some of these words and that may have been preferable, the language used did not go so far as to amount to an improper attempt to exploit emotion or prejudice.

68 In the circumstances of this case it was relevant, indeed significant, in the Crown's case that the conduct occurred on or in association with St Valentine's Day. This led the prosecutor in opening to draw an analogy with the execution of St Valentine which, in this context, was not out of place even though it was not essential.

69 It was contended that the prosecuting counsel went too far because he said he would "urge" the jury to take a certain view of the evidence. This submission appeared to take too literal a view of a passage relied on from the decision in R v Roulston (supra) without an appropriate appreciation of the type of conduct which that passage was deprecating. In the context in which the word "urge" was used in this case, the submission of prosecuting counsel was unobjectionable.

70 While a more restrained opening would have been preferable I would agree, with respect, with Wallwork J that the opening was not excessively inflammatory or likely to mislead. There was no occasion in my view for the discharge of the jury at the end of the Crown's opening as was contended on appeal, but not at the trial. Nor did the opening give rise to any need for a special direction at the end of the opening such was contemplated in Vella v R (supra) at 548. It is to be noted that no objection was made at all at the trial in respect of any of the matters now raised in this respect for the appellant.

Ground 2 - Directions as to burden and standard of proof

71 This ground contends that one passage in the learned trial Judge's charge to the jury was likely to mislead with regard to the onus and standard of proof. It is submitted that the passage gave the impression that the trial was a contest between two competing sides, to be determined on the balance of probabilities.

72 The relevant passage, however, was introduced by a reminder to the jury that, as counsel had made clear when opening the prosecution case, there were only two people present during the relevant events and his Honour went on merely to observe "So because there are only two people there you only really have two peoples' word for what happened ...". This observation was an entirely neutral one in respect of a material feature of the evidence in the case. It was not directed to, and could not, in my view, have given rise to any view as to the onus or standard of proof. It is not a fair reading of the words of his Honour, nor a reasonable implication to draw from them, that the jury might have been given the impression that their role was merely to adjudicate on the balance of probabilities between two competing sides.

73 It was sought to bolster this contention in two ways. First, by suggesting that the passage could have been understood as giving the imprimatur of the Court to what was said to be misleading observations in the Crown's opening. This submission was conjectural in the extreme. The second seeks to draw on a later and unconnected passage in the charge as in some way reinforcing the alleged error. This passage is:

"He told them his story which has always been that he was an active and willing participant, and as to why he says it was not his job to prove but he suggests to you through Mr Bennett it may have been either jealousy at seeing him with other men or the possibility of money. But there are only two people there so it's his word against hers."

"The onus is on the Crown and if you have a reasonable doubt either about the fact of consent or about his honest and reasonable belief and consent given the pre-existing history in relationship and the sexual matters that I have talked of, he is entitled to the benefit of the doubt and acquittal."

74 The effect of the passages relied on must also be assessed in light of the entirely correct and appropriate direction which clearly set out the onus and standard of proof, about which no criticism is made, and his charge is replete with constant reminders of this. In my respectful view the passages relied on could not in themselves separately or in their combined effect, have misled the jury or detracted from the full and correct direction which was given. In my view they could not have reinforced or given rise to any incorrect view as to the onus and standard of proof. In my reading of the charge of the learned trial Judge there is no adequate basis for concern that the jury may have been under misconception as to the true onus and standard of proof.

75 It should further be noted that once again no objection was made by defence counsel at trial in respect of this aspect of the charge. This matter is raised for the first time on appeal. In my view, the second ground is entirely lacking in substance.

76 It is contended that his Honour misdirected the jury in the matter of corroboration. Reliance is placed on the words of Barwick CJ in Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 462:

In light of this statement of the law, two phrases used by his Honour in his charge are identified as involving error. His Honour used the words "supportive of her evidence" and supporting "her case". It is contended that each of these statements may have misled the jury into treating the fact of the complaint made to the friend after the complainant fled the appellant's house as in some way corroborative of the complainant's evidence.

77 It is necessary, however to consider the two passages relied on in their particular contexts and to consider the effect of the whole of the charge when considering whether there was a danger of the jury being misled by these two phrases into an impermissible use of the evidence of complaint.

"As I say, the fact that a complaint was made initially to Mr Hawkins, later to the police, does not prove that the complaint is true or false but if you accept that it was made, the Crown says that it's consistent conduct which you should treat as supportive of her evidence."

"So the Crown says it [the recent complaint] doesn't prove what she is saying is true or false, but it's consistent with and therefore supports her case. It's something you can look at when your deciding whether she's telling the truth or not."

79 The comments of the learned trial Judge with regard to recent complaint were introduced by an explicit direction as to the limited use which could properly be made of that evidence. No complaint is made of this direction. In my view of the charges read as a whole there is no basis for an apprehension of danger of it being misleading in the way contended. Having regard to the explicit direction in terms which is entirely consistent with the views expressed in Kilby v The Queen (supra) I am not persuaded that either of the two passages might have detracted from the explicit direction so as to mislead the jury into a mistaken use of the evidence of recent complaint.

82 It is contended that the learned trial Judge erred by failing specifically to direct the jury as to what constituted the evidence which they might take into account and, in particular, in failing to direct that the video record of the interview of the investigating police with the appellant was evidence on which they could rely. Reliance is placed on Middleton v R (1998) 100 A Crim R 244.

83 When his Honour's charge is considered, it is apparent that this ground lacks any adequate foundation.

84 In fact, during the charge, his Honour expressly said that a video recording of something said out of court was among the forms of evidence in front of the jury and that the accused "elected to, if you like, rely on the account that he gave to the police on the video ..." and that counsel says "He told the truth to the police and you can accept his explanation to them". His Honour went on to direct that "in the jury room you will have access to the videotape record of interview" which could be viewed again as they deliberated "because of course those things are part of the evidence". The jury were then directly reminded again that defence counsel "is inviting you to place weight on the record of interview given by the accused to the police".

85 In my view there could be no doubt that the members of the jury were well aware that the video record of interview was a part of the evidence which they could properly take into account in determining the guilt or innocence of the appellant.

86 The ground was originally divided into two parts but the second was abandoned during argument. The remaining part, as amended at the hearing, alleges error on the part of the learned trial Judge in failing to give an appropriate direction as to the use the jury might properly make of the failure of the appellant to explain why the complainant had made her complaint or appeared upset on the night in question and afterwards. Underlying this ground is a contention that evidence was admitted in the trial which offended against the rule identified in Palmer v R [1998] HCA 2; (1998) 151 ALR 16. The evidence was admitted with the express consent of the appellant's counsel and for a forensic purpose of the defence case. Nevertheless, it is contended that it was incumbent for the jury to be given an express warning to ensure that it did not fall into the error of reasoning which the rule in Palmer's case was designed to avoid. This was not done. The two passages of evidence identified in this respect each occurred in the course of the interview which was recorded on video.

87 As has been indicated it was the explanation of the appellant given to the police that all that had occurred that evening between himself and the complainant was with her consent, indeed even in accordance with her planning and wishes, or that the appellant honestly and reasonably believed that to be the case. He went on to explain that after the conduct had come to an end the complainant had showered and was upset while doing so and he had apologised to her because for some reason which he didn't understand his attempt to please her had failed. He went on to explain that after this they had gone to bed together, kissed and cuddled and talked for a while and then fallen asleep.

88 It was against this background that in the course of the interview the following exchanges occurred:

"Q. All right. She said that she then went and had a shower and cried?

Q. What happened after you finished this "game" as you put it?

A. Um, I apologised for her for maybe not giving her the Valentine's present that she wanted, because the end result was that she ended up upset.

A. Well, I really couldn't fathom it at that stage, to tell you the truth, what the problem was. Bridget used to get upset about all sorts of things, you know, and I was on the outer; I wasn't on the inner of these problems.

Q. But you're saying she was upset, so much so that you apologised to her?

A. She didn't have a reason. That's why Bridget used to go and cry in the shower, so that you didn't see or hear her cry."

"Q. And it wasn't that during this whole incident - - and when I say that, I'm referring to Valentine's Day. Are you saying that at no time has she ever asked you to stop. You're saying that this was all done with her consent?

Q. Is there any comment you want to make in relation to what Bridget's told us?

Q. Well, have you got any comment you want to make at all?

A. Well, I've been making comments the whole way through. It was a sexual fantasy about us that we acted out. Something somewhere upset her. I don't know exactly what. The only thing I can maybe surmise is that she got scared that a third person was going to come to the house, which they didn't, and I've never been given the chance or any other thing to try and either make it up to her or anything like that.

Q. Why do you think that she would go to a friend's house visibly upset, crying etcetera, and then tell this person that you'd done all these things against her will, without her consent?

A. Well, why didn't she confront me with those things when I met her in the park, saying it was against her consent? I don't know why she would have gone to Wes' place saying that, you know. I really don't know. I do know that she has a very good relationship with that guy. They've been friends a long time.

Q. Any explanation for why she would have been so upset?

A. Well, I don't know. Like I'm saying, she was crying in the shower and I can't - - still today I can't pinpoint out what it actually was that upset her. I don't know.

Q. What about - - have you got my explanation as to why she would've gone to see a doctor to be examined after this happened?

A. Well, no idea. She hasn't told me that she done that.

Q. No, but could you think of any reason why? If - - if - - if you're saying this has all happened with her consent and knowledge - -

Q. - - and she was happy about it, why would she have gone to the - -

A. Maybe because she wanted to get back to me for some reason, or get back at me for some reason.

Q. Pretty drastic measures though, don't you think?

89 In the course of submissions for the appellant reliance was placed particularly on the two questions noted above "Why do you think she was upset?" and "Why do you think she would go to a friend's house visibly upset crying etcetera, and then tell this person that you'd done all those things against her will, without her consent?" There is also the further question "Any explanation for why she would have been so upset?"

90 As has been indicated no objection was taken at trial by the experienced defence counsel to the admission of any part of this evidence and no request was made to edit the videotape to delete any of these passages. Indeed, prosecuting counsel expressly raised in the absence of the jury the nature of what had transpired at the interview with respect to these passages, but the defence position was explicitly put that no objection was raised to any part of these passages from the interview. On that basis the learned trial Judge decided against taking any action himself when the evidence was led.

91 It was clearly a deliberate tactical decision by experienced defence counsel to have these passages of evidence led as part of the prosecution case. No doubt it was considered that the answers of the appellant were consistent with, and of some persuasive force to demonstrate, the genuineness of the appellant's belief at the time that the complainant had been a consenting party to what had occurred. His readiness and willingness to offer answers and explanations to these questions, which is the construction which the jury might well have placed on these events especially after a viewing of the video record of this part of the interview, and his readiness to accept that she had been upset at least for a time, might well have been seen as potentially of assistance to the defence, as well as his concluding observations as to the nature of the complainant given that he did not himself give evidence at the trial.

92 Further, his answer to the question "Why do you think that she would go to a friend's house visibly upset, crying etcetera, and then tell this person that you'd done all those things against her will, without her consent?" may well have been seen as providing a foundation (if, as occurred, the accused did not give evidence) for inviting the jury to consider whether the evidence as to her condition and words when she went to her long term friend should be accepted as reliable and whether it was consistent with her failing to confront the accused with these allegations when they met.

93 Insofar as these passages from the videotape interview were admitted into evidence by virtue of a deliberate tactical decision by experienced defence counsel, the observations of Malcolm CJ in Shuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 25 April 1997 and of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685 are in point. There is nothing to suggest that these were other than proper tactical decisions, open to be taken in the interests of the defence. In the circumstances there is no basis for any view that a miscarriage of justice has occurred by virtue of the decision of defence counsel not to object to the admission of this evidence.

94 It is the effect of the decision in Palmer v R (supra) that cross-examination of an accused during the trial to show that the accused does not know of any fact from which to infer that the complainant has a motive to lie is impermissible. As was said by Brennan CJ, Gaudron and Gummow JJ at 20:

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case, to ask an accused the question, 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused."

95 We are not concerned in this appeal with cross-examination of the accused during the trial but with the initial questioning of the accused during the police investigation. Of course, when it comes to the evidence led at trial about the police questioning of the accused, the underlying point of concern identified in Palmer v R (supra) remains the same. This is the danger that questioning by the police to show that the accused has no knowledge of any fact from which to infer that the complainant has a motive to lie could focus the jury's attention on irrelevancy, and invite the jury to accept the complainant's evidence unless some positive answer to that question is given.

96 At the stage of initial police investigation, however, it may be important and in a suspect's interests for the police to identify any known or suspected motive for the complainant to lie. This is especially so where, as here, the complainant and the accused had an established intimate relationship. The identification of a known motive for lying may well enable a false complaint to be identified at an early stage so that the accused is spared extensive investigation, and the ordeal of being charged and of defending ill-founded proceedings. The circumstances of each case must necessarily guide whether it was appropriate for there to be any questioning of the person which the complainant identified as the offender as to a known or suspected motive of the complainant to lie and, if so, of the appropriateness of the nature and extent of the questioning that was pursued.

97 Quite distinct issues arise, however, where it is proposed to adduce evidence of such questioning as part of the Crown case at the trial. At this point, in my respectful view, the point of concern identified in Palmer v R is material and will often be determinative of the admissibility of the evidence. It is necessary, of course, to identify whether the evidence proposed to be led does give rise to that point of concern.

98 An asserted motive of the complainant to lie, an expressed intention or threat to lie, or facts from which a motive to lie may properly be inferred, may be relevant and admissible, as was well recognised in Palmer v R. Indeed, as was said in the passage cited earlier, if the facts from which an inference of motive to lie might be drawn are facts that the accused would know if they existed, the accused's lack of knowledge could be elicited at trial to disprove those facts. Hence the particular facts and circumstances of each case will be relevant.

99 Where evidence is led at trial which may give rise to the risk identified in Palmer v R it will be necessary for the trial Judge to consider whether some specific direction is necessary, or desirable, as a means of seeking to avoid the risk of the jury falling into the error of focussing on the irrelevancy identified in Palmer v R and accepting the complainant's evidence because the accused could not identify a motive of the complainant to lie.

100 Turning to the present appeal. The issue does not arise in the context of cross-examination at trial but in the course of the police investigation. It is not a case in which the defence were in any sense caught out by surprise by a question and answer in the heat of trial. The evidence was not the subject of objection as a consequence of the deliberate and pre-planned tactical decision of those conducting the defence, a decision which was able to be considered well before the trial commenced.

101 More importantly, however, it is necessary to look at the evidence itself. The police questioning in this respect arose in the course of an interview with a willing and talkative participant. He readily accepted that most of the conduct alleged by the complainant had in truth occurred. This included that the complainant had been bound and blindfolded and subjected to a variety of acts involving depravity and which involved the complainant being in pain. But it was his volunteered explanation, indeed it was his whole case, that all these things occurred with her consent to live out her own fantasy, or at least that the accused honestly thought that was the case at the time. Further, that while she may have been upset and cried after the conduct, that was not unusual conduct for her, and it passed, and they then peacefully and lovingly went to sleep.

102 Given this account so freely advanced by the appellant, it was, in my view, appropriate, indeed important, that the appellant should be asked why the complainant was upset at the conclusion of the conduct in the bedroom, and why she would then go at the first opportunity to a friend's house still visibly, upset as was clearly established to have been the case.

103 It seems to me that the clear force of these questions was not, as in R v Palmer (supra), directed to establishing that the appellant was not able to identify why the complainant had a motive to lie. Rather, it was seeking an explanation why the complainant should have been upset at the end of conduct which, on the appellant's account, she had wanted and which occurred with her consent, and for the dramatic contrast between the distressed condition of the complainant when she went to the friend's house in the early hours of the morning and the appellant's account that the conduct had been with her consent and that the two had gone off to sleep in an apparently loving and peaceful mood.

104 One question did also go on to pose in effect why would she tell the friend that these things had been done against her will. But that was in the direct and immediate context of, and part of, an enquiry why she was visibly upset. It seems to me that both the context and the point of the question must be considered in the particular circumstances of this case. The question is not properly to be seen as directed to demonstrating that the appellant was unable to offer a motive for the complainant to lie. Nor, in my view, would that have been seen by the jury as its point and effect. Rather, in the particular circumstances presented by this case, the question was directed to seeking an explanation for the condition and conduct of the complainant as observed and proved at trial by others. The question was directly prompted by the full account of the events in his house which was volunteered by the appellant which appeared to be contradicted by her observed condition and conduct and the explanation she then gave for it.

105 In my view the questions to which the appellant's submission is directed were appropriate and legitimate having regard to the appellant's account which he had just given of the relevant events. I am not persuaded that the point of concern identified in Palmer's case is applicable to the questions in the present case. It seems to me there is no real risk, in this case, that the questions and their answers would lead the jury to speculate about the appellant's inability to offer a reason for the complainant to lie. Rather they would focus on a valid and highly relevant issue, namely whether the appellant would have left the appellant's house and gone to the house of friends in the early hours of the morning, visibly distressed, if events had been as the appellant had described them to the police.

106 That is indeed the way in which this evidence was dealt with by the learned prosecutor as he presented his closing address for the prosecution. No where in the Crown case at trial, or in defence counsel's address, or in the charge to the jury of the learned trial Judge was the issue ever posed that the appellant could offer no motive for the complainant to lie.

107 In my view the passages now relied on in support of this submission are to be seen in a quite different light from the passages in the cross-examination which were considered in R v Palmer, and also from the questions which were considered in Gill v The Queen [1999] WASCA 68, which was also relied upon, where it was put to the accused in effect - Why would the complainant just make up her whole allegations? and Why should she lie?

108 In my view the admission into evidence of the questioning by the investigating police in this case did not give rise to the point of concern identified in Palmer's case. Further, given the particular circumstances of this case it was not necessary, in my view, for any special direction to be given to deal with the risk identified in R v Palmer. There was not a sufficient prospect of that being a live issue in the minds of the jury for such a direction to be necessary.

109 For the reasons given it has not been shown that there has been a miscarriage of justice by virtue of the failure of the learned trial Judge to give such a direction.

110 For the reasons given the appeal should be dismissed.

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