Harman v The State of Western Australia [2004] WASCA 230

Harman v The State of Western Australia [2004] WASCA 230 - WASCA 2004 case summary — Zoe

[68]

1. It is imperative that the jury not be given any impression that in such a case the guilt of the accused will be established by the jury's preference for the evidence of the complainant. The matters discussed in Liberato are of critical importance and the jury must be properly instructed that if they are left unable to reject the evidence of the accused, although they do not positively accept it, they could not find guilt established beyond reasonable doubt, and even if the evidence of the accused is rejected attention must still be given to the important question whether the evidence of the complainant, or so much of it as the jury do accept, establishes the commission of the offence beyond reasonable doubt.

2. In testing the evidence in such a case it is permissible to put to the complainant questions concerned to establish whether or not he or she has or may have a motive to lie, to falsely implicate the accused, but Palmer establishes that it will never be admissible for the Crown to cross-examine an accused person about whether or not he or she can suggest any motive for the complainant to lie. However, that case does not establish that the accused may not give admissible evidence upon that issue and if that is done it would be open to the prosecution to test that evidence by cross-examination in the ordinary way.

3. Where the issue is raised it is open to the trial judge to comment on the evidence in the ordinary way. Indeed, the obligation to ensure that the trial is fair will often require comment. The trial judge will retain his or her freedom to make comments which are appropriate to the circumstances of the particular case, for such assistance as they may provide to the jury in the fact finding process.

4. On the other hand, the circumstances of the case may suggest that it is preferable for the trial judge to make no comment upon this factual issue: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 [41] - [42].

5. Whether or not any comment is made, the trial judge must take care to ensure that the jury is not left with any impression that the accused bears any onus to establish that the complainant has a motive to lie or that the lack of any perceived motive to lie of itself justifies the acceptance of the evidence of the complainant and the rejection of the evidence of the accused."

[83]

"You never saw Mr Oliver actually penetrate ... [the complainant], did you, Mr Coffin?---No.

And in the same way you never saw Mr Harman's penis in ... [the complainant's] mouth?---No.

...

... Now, if you had any thought in your mind that ... [the complainant] was doing anything - was being forced to do anything that he didn't want to do, you wouldn't have left him there with those two, would you?---No.

No. In fact you would have went over and if you thought they were raping him or doing something against his will, you would have went over there and put a stop to it, wouldn't you, Mr Coffin?---Yes.

Yes. And it was only when you came back from getting a cigarette that you held ... [the complainant's] hands. Is that right?---Yes.

And you never held his arms or his hands when Mr Oliver first got on him or when Mr Harman first knelt up on the bed next to his head?---No.

So it's not as though you are there holding him down, holding him by the arms so the other two can have their way with him. That's not your role in this, was it?---Well, I was only joking at the time.

Yes, but I mean before you left to get the cigarette?---No.

And when you came back, as a joke, you came into the rook and said, 'Hey, what's going on here?' Something like that?---Yeah.

And they were all startled, were they?---Yep.

And ... Mr Oliver jumped off?---Yes.

And Mr Harman got a shock?---Yeah.

Desisted from what he was doing, and then things settled down again and Mr Harman then said to ... [the complainant], 'Now what about me? It's my turn ... . Come on.' Is that right?---Yes.

So you thought this was a joke, and can I ask you: up until that stage, you thought that ... [the complainant] was agreeing to this behaviour that was going on?---Yes.

Yes. So then as a joke and as part of it, because you thought he was consenting, you grabbed his hands but then you realised suddenly that things had changed?---Yes.

And that ... [the complainant's] mood had changed?---Yes.

And that suddenly he wasn't agreeing to this?---Yes.

And that he wanted it to stop?---Yes.

And then you said to these boys, to Mr Harman and Mr Oliver, 'Hey, you boys. That's enough. Leave the cell'?---Yes.

And you did that because you saw a change come over ... [the complainant]?---Yes.

And you did it out of concern for him?---Yes.

Because you realised that from now on he was not agreeing to anything going any further. Yes?---Yes.

And when you told them to stop and desist because of what you saw and the change in ... [the complainant], Mr Harman and Mr Oliver immediately stopped and did as you told them - leave the cell?---Yes.

Did ... [the complainant] say at one stage, 'I've been hurt' or 'He was hurting me,' referring to Mr Oliver? Do you remember?---Yes.

Yes? And if you had had any concern prior to leaving for the cigarette, you would have stopped what was happening just like you did later when you realised, wouldn't you?---Yes.

As part of your joking around, did you say to the boys, 'Let's rape him'?---Yes.

Is that when you grabbed his hands when you came back in?---Yes.

And you didn't hear Mr Harman say anything like that, did you, 'Let's rape him'?---No.

And you didn't see anything that indicated to you that ... [the complainant] had bit Mr Harman's penis, did you?---No.

And ... [the complainant] said nothing to you about that. He didn't say, 'I bit his penis'?---No, he did not tell me."

[86]

"1. My conviction in the District Court at Geraldton on 19 February 2004 is incorrect because:

(a) His Honour the learned trial judge refused to leave the defence of honest and reasonable mistaken belief to the jury. His Honour refused to accept that the jury may reject the complainant's evidence that he was kicking and screaming at the time of the incident and accept:

(i) the evidence of Mr Harman that the complainant was not kicking and screaming; and

(ii) the evidence from a prisoner who was present in his cell at the time of the incident, which was situated some 10 metres from the complainant's cell, that he did not hear any screaming or shouting coming from the complainant's cell.

If the jury rejected the complainant's evidence and accepted either of the above evidence instead, the defence of honest and reasonable mistaken belief was open.

(b) His Honour wrongly refused to correct the prosecutor in his charge to the jury when the prosecutor, in his closing address, told the jury that it is the defence counsel's job to test the evidence and to persuade them that they should have a reasonable doubt. This reverses the onus of proof, which is on the prosecution to prove the absence of reasonable doubt, not on the accused to show a reasonable doubt.

(c) The learned trial judge wrongly refused to correct the prosecutor, who told the jury that I 'clam up' when I was asked by the police to give an interview. This implied that I deliberately remained silent because I had a guilty mind. This is particularly important because the Crown did not rely upon lies as evidence of guilt in this case. It also undermined my right to remain silent.

(d) His Honour refused to correct, in his charge to the jury, the prosecutor who, in his closing address, repeated to the jury the complainant's evidence, which was to the effect of 'I wouldn't be here if I had consented'. He then explained to the jury that the complainant had waited 1.5 years, come before strangers in the District Court (jury) to face these two guys (the accused people) sniggering.

In this way the prosecutor invited the jury to consider the question of 'why would the complainant put himself through this ordeal and trauma if what he alleges is not true?' This invitation is not allowable by law.

(e) His Honour was wrong in telling the jury that the lawyer's questions are not evidence, but that the answer is the evidence and refusing to correct this in accordance with the request by counsel by advising that the questions can be evidence when they are adopted in the answer.

(f) His Honour was wrong in not correcting the prosecutor in his charge to the jury when the prosecutor, in his closing address, pointed out to the jury that in cross-examination a particular Crown witness was asked leading questions by defence counsel, questions he described as 'Dorothy Dixers', and that therefore his evidence should be taken 'with a pinch of salt'.

The effect of the statements by His Honour and the prosecutor was to negate and undermine the cross-examination, the purpose of which is to test the evidence. The asking of leading questions in cross-examination in appropriate circumstances is proper and the answers should not be minimised in this way.

(g) The prosecution thereby attacked its own witness without giving that witness the opportunity in re-examination to answer the allegation that his answers should be taken 'with a pinch of salt' because of the questions being 'Dorothy Dixers'. The prosecutor could have asked for the right to cross-examine the witness.

(h) After the jury had retired to consider their verdict, they asked His Honour whether they could see the transcript of one of the Crown witness's [sic] evidence. As there is no running transcript available in Geraldton, this request was denied. His Honour should have offered to play the tape recording of the whole of the evidence.

The jury were therefore unable to consider their verdict in a fair way. They were forced to rely on their memories of the witness' evidence.

(i) There was a denial of natural justice in the trial as there was no running transcript available."

[207]

"The way he has put it to you, and here you might identify with it as well, 'I wouldn't be here if I had consented.' There's this happy consensual trio, four of them in fact if you count Coffin in, and then something like a year and a half down the track you have a trial in the District Court before a bunch of strangers, try to tell them a story, wondering whether or not they're taking it seriously, wondering whether they're prejudiced against you perhaps, whether they think it's funny, whether they think it's too serious, whether they think it's too disgusting to turn their minds to, having to face up to these two guys sniggering during the course of the evidence - at least Oliver was.

'I wouldn't be here if it hadn't happened. I know what happened to me.' That's the important thing. Is he telling some elaborate lie for some reason? Sure, people might come to court and lie for a variety of reasons, but as far as these guys were concerned, after that incident it was all smiles, there was nothing unusual about it, except perhaps Oliver may have hurt him a little bit, and that's enough to complain to the prison authorities and to see it all the way through to this according to the defence.

At the end of the day, ladies and gentlemen, the evidence will turn primarily on Curley's evidence. The prosecution suggests to you that despite the alleged inconsistencies - it's for you to decide whether they're at all material, if there was an inconsistency in his story, or if it mattered, whether it affects the substance of what he has told you, that initially he thought they were kidding around and then all of a sudden this - and he was struggling, he wasn't agreeing with it, but kidding around, that they were kidding around with him, and suddenly it turns into anal rape, and him having a penis stuck in his face and in his mouth when he didn't want it to happen.

If you're satisfied beyond reasonable doubt, ladies and gentlemen, that those two things happened and he wasn't agreeing to it, then each of these charges are proved." (AB 222-3)

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Judgment (223 paragraphs)

Harman v The State of Western Australia [2004] WASCA 230 (18 October 2004)

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Cases Cited (16)