The Crown Prosecutor replied, "I won't pursue that."
26 The appellant submitted that it is impermissible for the Crown in cross-examination of an accused in a case of alleged sexual misconduct to ask if the complainant has fabricated parts of her evidence against him. Reliance was placed on the joint judgment of Brennan CJ, Gaudron and Gummow JJ in Palmer v The Queen (1998) 193 CLR 1. At 6 they said, "Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations". At 7 they continued:
"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. [Citations omitted]
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."
27 In Rich, 102 A Crim R 165 the appellant was charged with sexual intercourse without consent in circumstances of aggravation. the appellant was cross-examined by the crown prosecutor that he was saying that his aunt was lying as to specified parts of her evidence, that a police officer was lying when he alleged that he had seen the appellant naked, that the complainant had lied ("making that up") on a particular point and that three other persons had each made up their evidence on particular points. The appellant was then asked by the crown Prosecutor whether there was "a bit of a conspiracy" operating against him. Hidden J, with whom Grove and Hulme JJ agreed, said at 169:
" The Crown prosecutor in this Court (who did not appear at the trial) acknowledged that such a line of cross-examination, whereby one witness is invited to express an opinion about the truthfulness of another, ought not to have been pursued: Leak [1969] SASR 172 at 173-174, Praturlon (unreported, Court of Criminal Appeal, NSW,29 November 1985) per Street CJ at 6-10. Particularly is this so where the witness is the accused in a criminal trial, who is being pressed in cross-examination about aspects of the case brought against him. The situation is analogous to cross-examination of an accused in a case of alleged sexual misconduct about whether he can attribute any motive to the complainant to fabricate the evidence against him: a practice condemned in a number of decisions of this Court and, more recently, by the High Court in Palmer (1998) 193 CLR 1; 96 A Crim R 213."
28 In the present case the difficulties arising from the Crown Prosecutor's cross-examination were compounded by the prosecutor's final closing speech to the jury which included an all out attack in colourful language on the appellant's credit.
29 The cross-examination under challenge was unfair and sought to and probably did create illicit prejudice against the appellant. He could not be expected to know what she believed. Lying, fabrication and making up all have the connotation that she was acting basely. All he knew was that her evidence was incorrect. What he suspected or believed was not relevant in the context in question. The prosecution was seeking to disparage, hold up to criticism and capitalise upon the appellant's beliefs as to the evidence of the complainant. They were not relevant and deflected attention from the critical issue, namely, whether the jury were satisfied as to the truth of her evidence beyond reasonable doubt.
30 In R v Gilbert (unreported NSW CCA 10 December 1998) the pattern of some of the questions asked of the appellant (the accused) at the trial was to invite him in his testimony to assert that the Crown witnesses, particularly his wife (the victim), and her daughter (a stepdaughter who lived with the family unit) were fabricating parts of their evidence. No objection was taken to the questions. Grove J, with whom Levine and Dowd JJ agreed, referred with evident approval to the remarks of Hidden J in Rich, namely, that the vice of the impermissible questions is the tendency to "deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the appellant, in accordance with the burden and standard of proof borne by the Crown." Grove J expressed concern at the prejudice which the appellant had suffered, as "the impermissible cross-examination was directed at the appellant where the central issue involved oath against oath."
31 In R v Dennis [1999] NSW CCA 23, the Crown prosecutor cross-examined the appellant (the accused) to the effect that on his version of events the complainant and the other Crown witnesses were lying. McInerney J, with whom the Chief Justice and the Chief Judge at Common Law agreed, applied Rich and the comment that one of the objects of this type of cross-examination is to rattle a witness so as to have a jury disbelieve him or her, no matter what the answers were and that there were clear benefits to the cross-examiner in the impermissible questions. McInerney J also applied the principle in R v Davies (unreported, CCA 8 December 1994), namely "No attempt should be made by the cross-examiner to drive any witness, least of all the accused into saying that another witness is a liar." McInerney J added that prosecutors "should realise that such cross-examination is improper, particularly in a case … where the credibility of the witnesses is extremely important." The Chief Justice pointed out that both Rich and Gilbert were strong Crown cases, in each of which the trial miscarried by reason of the Crown Prosecutor engaging in such cross-examination and that it was extremely dangerous.
32 The Crown submitted that there was an exception to the principle, that this case fell within the exception and that where the exception applies cross-examination of the type in question is permissible. Reliance was placed on R v Smith [2000] NSW CCA 468 per Wood CJ at CL at paras 93 to 106 and especially paras 98 to 100.
"98. As a matter of common sense and everyday experience of life, one of the first matters that will occur to the jury is the prohibited question - why, unless it is true, would the complainant make the allegation up and go through all the trouble and stress to himself or herself, as well as to the accused and their respective families, that would be associated with an investigation and trial?
99. The reality of that circumstance has not been overlooked by appellate Courts. [citations omitted]