Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against conviction - Sexual penetration without consent - Appellant denied being present when offence occurred, then remained silent until trial - Prosecutor told jury that appellant "clammed up" when questioned by police - Whether impermissibly suggested that previous silence made defence suspect or unacceptable

Criminal law and procedure - Appeal against conviction - Prosecutor invited jury to speculate about whether complainant had motive to lie - No specific direction correcting prosecutor's comments - Whether comments caused miscarriage of justice

Criminal law and procedure - Appeal against conviction - Whether defence of honest and reasonable, but mistaken, belief was available

Evidence - Prosecutor critical of own witness - Whether prosecutor breached s 20 of Evidence Act 1906

Evidence Act 1906 (WA), s 20

The Respondent : State Director of Public Prosecutions

Beresi v The Queen [2004] WASCA 67

Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169

Ferry v The Queen [2003] WASCA 207

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95

R v E (1996) 39 NSWLR 450

R v F (1995) 83 A Crim R 502

R v Hewitt [1998] 4 VR 862

R v Jovanovic (1997) 42 NSWLR 520

R v Kostaras (2002) 133 A Crim R 399

R v Kostaras (No 2) [2003] SASC 323; (2003) 86 SASR 541

R v M [1980] 2 NSWLR 195

R v Smith [2000] NSWCCA 468

R v Swaffield [1998] HCA 1; (1998) 192 CLR 159

R v Taylor [2000] QCA 96

R v Topalidis [1999] QCA 376

R v Uhrig, unreported; CCA (NSW); No 60200 of 1996; 24 October 1996

R v Verdon (1987) 30 A Crim R 388

Rodd v The Queen [2000] WASCA 329

Attorney-General's Reference (No 1 of 1977) [1979] WAR 45

Braithwaite v The Queen, unreported; CCA SCt of WA; Library No 950511; 25 September 1995

Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443

Callaghan v The Queen [1994] 2 Qd R 300

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1

Geraldton Fishermen's Co­operative Limited v Munro [1963] WAR 129

Holman v The Queen [1970] WAR 2

Lergesner v Carroll [1991] 1 Qd R 206

R v AH (1997) 42 NSWLR 702

R v Badjan (1966) 50 Cr App R 141

Reid v Kerr (1974) 9 SASR 367

Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116

Robinson v The Queen (No 2) [1991] HCA 38; (1991) 180 CLR 531

Vella v The Queen (1990) 2 WAR 537

Wroblewski v Starling [1987] WAR 233

1 MURRAY J: I have had the advantage of reading in draft the judgment prepared by Steytler J. I respectfully agree with all that his Honour has written in relation to the grounds of appeal, except ground 1(d), the ground upon which his Honour would allow the appeal, quash the conviction and order a retrial. I regret that I take a contrary view. I would dismiss the appeal.

2 The complaint in the ground may be taken to be a complaint about the comments of the prosecuting counsel made in his closing address to the jury, and the trial Judge's failure to "correct" what had been said by counsel. In evaluating the effect of what occurred, one needs to abstract the substance of what was said from the rather flamboyant language employed by the prosecutor, not only at this point of his address to the jury, but elsewhere.

3 The indictment charged the appellant with sexually penetrating the complainant without his consent by introducing his penis into the complainant's mouth. The evidence led at trial has been reviewed by Steytler J. I need not repeat it. The appellant's defence was that the complainant consented to what occurred.

4 When the complainant gave evidence he was cross-examined at length in an attempt to get him to concede that he had indeed consented to an act of oral sex. Ultimately, as Steytler J notes, counsel for the appellant, putting yet again that the complainant had consented to have oral sex with the appellant, was given the answer, "I say that is the most lyingest thing that anybody could ever say."

5 The appellant was standing trial jointly with the co-accused, Oliver. Oliver was indicted for an act of sodomy, allegedly committed upon the complainant without his consent. Immediately following the question and answer referred to above, and by way of closing his cross-examination, counsel for the appellant, although he did not represent Oliver, put to the complainant, as he had done a number of times, that he consented to have anal sex with Oliver. That elicited the answer which, in my opinion, was responsive, "No, I never. I did not say that. If I had done that, I wouldn't be sitting where I was now." The complainant was then separately cross-examined by counsel for Oliver.

6 The complainant appears to be a homosexual and the events the subject of the charges in the indictment followed consensual activity between the complainant and another male prisoner with whom he had a sexual relationship. The complainant was medically examined on the day following the incidents of which he complained. Although the doctor found an anal fissure, it was of long standing. In short, there was no medical evidence to support an inference of non-consensual anal sex on the previous day. The complainant, in giving his evidence, did not say that the act of anal sex by the co-accused, Oliver, had injured him. However, there was evidence by the complainant's friend, when cross-examined, that following the incident the complainant said to him that Oliver's act hurt him. That evidence was given after the complainant testified. The witness had not given that evidence in-chief and no such proposition had been put to the complainant.

7 The appellant gave evidence, but that was evidence of consensual, indeed enthusiastic, sexual activity. The co-accused, Oliver, did not give evidence.

8 The complainant gave no evidence to suggest that there was anything between him and the complainant before the day of the alleged incident which would give the complainant a motive to tell lies to get the appellant into trouble. Indeed, the evidence was that there had been previously been consensual sexual activity between the complainant and the appellant. To some extent that was admitted by the complainant, who did, however, in evidence say that he "hated" the appellant because he continually stalked him and made repeated sexual advances towards him.

9 Counsel for the appellant, in addressing the jury, naturally attacked the complainant's credibility. He suggested that the complainant's evidence was a lie. Alternatively, he argued, the complainant was an unreliable witness prone to exaggeration and over-dramatising situations, a person suffering from depression, who was subject to mood swings.

10 Prosecuting counsel addressed next, because, as I have said, the co-accused, Oliver, did not give evidence or call evidence in his defence. It was during that address that the words of which this ground complains were uttered. They have been set out in full by Steytler J. Counsel reminded the jury, accurately enough, that the complainant's evidence was that he would not be at the Court giving evidence against the appellant and Oliver if, as counsel suggested in cross-examination, he had consented to what occurred. Counsel reminded the jury what a strain the process of giving evidence must have been for the complainant. There can be no complaint about that. Then counsel continued:

"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."

11 Counsel for Oliver, in his address, naturally also laid emphasis upon matters which the jury might consider made the complainant an unreliable witness. He emphasised the lack of corroborative evidence, and that the complainant had been contradicted by other witnesses. He said there was nothing, apart from the complainant's evidence, to negate the truth of the account given by Oliver when he was interviewed on video by the police; that although there had been some consensual contact between him and the complainant, there was no anal penetration.

12 He commented upon the arguments presented by prosecuting counsel, to which I have referred to above, by saying:

"My learned friend also put the question to you that Mr Giudice was suggesting that maybe this whole thing arose because Mr Oliver - sorry, the complainant was hurt in some fashion as a result of the anal sexual penetration by Mr Oliver or the alleged penetration by Mr Oliver and that may have been the genesis of this. My learned friend asked you, 'Well, is that enough? Is that enough to get you all the way in here to put you into the stand to get you through that?'

There are two things I would say to you about that. First, motive is irrelevant here. It doesn't matter for what reason he may have made his allegations. The question is not why did he make them. The question is can you accept his evidence that it happened in the way he said. The second is once you make a complaint, you lose control. It wasn't up to him where it went after he made his complaint."

13 At the conclusion of this address, counsel for the appellant objected to what prosecuting counsel had said. He said it invited speculation by the jury as to why the complainant would have put himself in the position of having to give evidence in court if his evidence was untrue. Counsel said that he was not concerned that the prosecutor had directly put such a question, but that the discussion in his address invited speculation.

14 The trial Judge addressed on the following morning. His Honour had concluded the debate between counsel by saying that he was not sure that any comment by him would be helpful, but that he would think about it overnight and do the best he could in the course of directing the jury. His Honour addressed appropriately by emphasising to the jury that they should decide the case by calm analysis of the evidence and only upon the evidence. In the course of his address the trial Judge said:

"People don't come to court out of choice. You don't. It is not a pleasant place to be, and so they react to the stress of being in court in different ways. So you make allowances for the differences in people, hopefully. That is what evidence is, what witnesses say. Obviously theories not supported by the evidence are not evidence. Speculation is not evidence."

15 His Honour stressed that the case against the appellant depended entirely upon the complainant's evidence. His directions as to the onus and burden of proof were impeccable. His Honour told the jury that it was not simply a matter of whose evidence they accepted or preferred. His Honour gave the direction that even if the jury were unable to accept as true the evidence of the appellant, they could not convict if they were left in doubt whether it was true or not and they could not convict, even if they rejected that evidence as true, unless, upon the complainant's evidence or the essential portions of it, they were satisfied of guilt beyond reasonable doubt: Liberato v R [1985] HCA 66; (1985) 159 CLR 507.

16 In the course of reviewing counsel's arguments, his Honour said of prosecuting counsel:

"He put to you that the complainant's statement that he wouldn't be here in court if he consented was plausible and believable as a statement. As to that, of course, it is not for you to speculate about that matter, but that is what the complainant did say."

17 Ground 1(d) complains that in directing the jury, the trial Judge did not do enough to ensure that there could be no miscarriage of justice in this regard. I am unable to accept that argument. In Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169, at 183 [59], after reviewing some of the authorities concerned with the law as laid down by the High Court in Palmer v R [1998] HCA 2; (1998) 193 CLR 1 I endeavoured to summarise the law in five propositions, as follows:

"I am led by my consideration of the authorities to accept the following propositions, particularly in respect of a case of this kind where the evidence is entirely or substantially oath against oath, on the one hand the evidence of the complainant and, on the other hand, that of the applicant -

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."

18 What I then said was with the agreement of Malcolm CJ and Parker J.

19 I would apply those remarks to this case in the following way. As the evidence was led from the complainant and the appellant, prosecuting counsel did not infringe in the way discussed in Palmer. Indeed, there was, in truth, no evidence to suggest that the complainant may have had a motive to falsely implicate the appellant in the commission of the offence charged, except the evidence led from the complainant, which seems to have attracted no subsequent comment, that the complainant hated the appellant because he constantly importuned him for sexual favours.

20 It would have been better if prosecuting counsel had not invited the jury to speculate about whether or not there was anything to suggest that the complainant had a motive to lie. But that was properly put into perspective by the observations made in his address to the jury by counsel for Oliver. Those remarks were endorsed by the trial Judge, who gave careful directions designed to deflect the jury from any speculation upon that question. Otherwise, his Honour's directions about the onus of proof, the burden of proof and the proper way to approach the matter of proof of guilt in a case where the evidence was, from the prosecution's point of view, essentially oath against oath, were all that could have been expected. In my respectful opinion, they had the effect of firmly keeping the fact-finding process on track as a matter of law and fairness. This ground complains that his Honour failed to correct what had been said by prosecuting counsel, but in my opinion that is precisely what his Honour did and no more was required.

21 This jury could not have been left with the impression that if they could find no motive for the complainant to lie about the lack of consent, then upon that ground alone they might consider that they should accept the evidence of the complainant and reject that given by the appellant. It is in that danger that the risk of miscarriage of justice lies, as well as in the risk that, generally, there may, in what occurred at trial, be a risk of some diminution in the burden of proof resting upon the prosecution.

22 I would not uphold this ground. Like Steytler J, I can discern no merit in the other grounds of appeal upon which reliance was placed. I would dismiss the appeal.

23 STEYTLER J: The appellant was convicted, after a trial by jury, on a charge of sexual penetration without consent. He appeals against that conviction.

24 The prosecution alleged that the offence occurred on 10 September 2002 at Greenough Regional Prison near Geraldton.

25 The appellant and a co-offender, Patrick Oliver, were then both sentenced prisoners. So, too, was the complainant. During the afternoon of 10 September 2002, the complainant, who was in his prison cell, had consensual sex with another prisoner, Robert Coffin. Afterwards, the complainant lay on his bed, under some rugs. Coffin sat on the seat of the toilet in the cell and talked to him. The appellant and Oliver then came into the cell. What took place thereafter was in contention at the trial.

26 I will set out the contentious evidence, being essentially that given by the complainant, Coffin and the appellant. Oliver did not give evidence.

27 The complainant's version of what took place on the afternoon of 10 September 2002 was as follows. When Oliver and the appellant entered his cell, he asked Oliver to leave because he did not like him. However, Oliver stayed. After a short while, Oliver lay down with the complainant on the bed under the rugs. The appellant said, "We might as well rape him," referring to the complainant. The complainant thought that the appellant was joking. However, Oliver began to "rub up" against the complainant's body and Coffin grabbed the complainant's arms, holding them back. Oliver then grabbed the complainant's legs. He pulled the complainant's trousers down to his knees and then pulled them over the complainant's head and had sexual intercourse with him. The complainant shouted and swore at Oliver, telling him to get off. While this was happening, the appellant masturbated himself, before jumping onto the bed and putting his penis in the complainant's mouth. The complainant bit the appellant's penis. After calling the complainant a "little bitch", the appellant tried again to penetrate the complainant's mouth with his penis. However, the complainant struggled and moved his head until the appellant gave up. At about that point Coffin, who saw that

the complainant was crying, told the two men to stop what they were doing. The complainant managed to get Oliver off him. The appellant then attempted to have sexual intercourse with the complainant. The complainant pushed him off and started shouting and screaming again. The appellant and Oliver then left, returning some 10 to 15 minutes later to apologise, saying that they had not meant to do what they had done and that they had just been "mucking around".

28 Under cross-examination the complainant said that, when the appellant put his penis in the complainant's mouth, Coffin was not present as he had left the cell. He said that he had earlier been confused in saying that Coffin was then still holding his arms.

30 In his evidence-in-chief he said that Oliver had jumped under the covers with the complainant and that he saw the "covers ... moving up and down". At that time the appellant was masturbating close to the complainant's head. The appellant held the complainant's head and tried to insert his penis into his mouth. The complainant was trying to move his head. The complainant asked the appellant and Oliver to stop what they were doing. He said words to the effect, "Stop. Don't be stupid you boys." However, the appellant said, "Just suck it, you little bitch," or words to that effect. When the appellant tried to force himself into the complainant's mouth, the complainant said, "No, stop. Don't." Coffin, who had been sitting on the toilet seat watching television, then left the cell for a short while in order to get a cigarette. When he returned, he opened the cell door and said, as a "joke", "What's going on here?" Oliver jumped off the complainant and the appellant "stopped for a while". Then, after Coffin had, again "as a joke", grabbed the complainant's hands and held them above his head, the appellant tried to penetrate the complainant's anus with his penis. The complainant was saying, "Stop, you boys. Let go." Then, the complainant went "all quiet". At that point Coffin "knew ... [the complainant] was getting serious". He released the complainant's hands and told Oliver and the appellant to leave the cell. The complainant was then crying.

31 The following exchanges occurred during the course of Coffin's cross-examination:

"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."

32 In his evidence at the trial the appellant said that, when the four men were in the complainant's cell, the complainant had been flirting with the other three. He said that the complainant invited Oliver to get into bed with him and that the complainant had consented to having sex with Oliver. While the two were having sex, the appellant asked the complainant for a "head job". The appellant pulled the front of his pants down and the complainant put his mouth on the appellant's penis and started sucking it. He said that the complainant looked happy and did not shout or struggle at all. He denied that the complainant ever asked him to stop or bit him. He also denied that he grabbed the complainant's head or hair. He wanted to have sexual intercourse with the complainant after Oliver had finished, but the complainant "didn't want to" and moved away. The appellant later apologised to the complainant because he thought that Oliver might have hurt him.

33 The appellant's grounds of appeal read as follows:

"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."

34 As to ground 1(a), s 24 of the Criminal Code provides that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for that act to any greater extent than if the real state of things had been such as he believed to exist.

35 The appellant's counsel at trial urged upon the trial Judge the proposition that there was evidence upon which it was open to the jury to find that the appellant had been operating under an honest and reasonable, but mistaken, belief that the complainant had consented to the conduct the subject of the charge against the appellant.

36 He relied, in particular, upon evidence which had been given by another prison inmate, Thomas Quartermaine. Quartermaine had been in his prison cell at the time of the events giving rise to the charges which were brought against the appellant and Oliver. He heard no yelling or screaming. According to Coffin, Quartermaine's cell was about 10 or 12 metres away from the complainant's cell. However, when asked, in the course of cross-examination, whether he would be able to hear shouting or screaming from his cell, Quartermaine answered, "No." He said that there were "boys up and down shouting everywhere laughing and joking".

37 Before us, counsel for the appellant also relied upon the appellant's evidence at the trial to the effect that the complainant had been flirting with him, that the complainant had appeared to consent to having anal sex with Oliver and that the complainant had looked happy when he had himself penetrated the complainant's mouth. She referred, also, to evidence which had been given by the appellant to the effect that he had previously had a sexual relationship with the complainant. The appellant said that the last occasion upon which he had had sex with the complainant was about a week prior to the time of the alleged offences. In addition, counsel for the appellant relied upon Coffin's evidence, under cross-examination, to the effect that, had he thought that the events which took place were against the complainant's will, he would have intervened. Finally, she submitted that the appellant's apology to the complainant was consistent with the notion that the appellant had believed that the complainant had consented at the time, but had subsequently realised that there may not have been consent.

38 Before directing the jury, the trial Judge raised with counsel the question whether or not the issue of honest and reasonable, but mistaken, belief should be left to the jury. He suggested that the jury could not find an absence of consent unless it accepted the complainant's evidence that he had expressly objected to what was done to him. He also suggested that the evidence left little room for debate as regards the question whether or not there had been any honest and reasonable, but mistaken, belief, given the stark conflict between the complainant's version (encompassing expressed objections, struggling and movement of his head) on the one hand and that of the appellant on the other.

39 After hearing submissions from counsel, the trial Judge informed counsel for the appellant that he would not prevent him from making reference to the defence under s 24 of the Code, but said that he would later decide what, if anything, he would himself say in that regard during his charge to the jury.

40 Thereafter, when counsel for the appellant came to address the jury, he raised the prospect that there had been an honest and reasonable, but mistaken, belief that the complainant had consented to what was done to him by the appellant. He said that it would be for the trial Judge to tell the jury whether or not that defence was open. However, he went on to explain to the jury why it was open to them to find that the prosecution had not negatived the defence.

41 Somewhat surprisingly, when he came to direct the jury, the trial Judge did not say either that the defence was open or that it was not. Instead, he said nothing at all about it. Counsel for the appellant contends that he should have told the jury that the defence was open.

42 In my opinion, the evidence left no scope for any sensible application, by the jury, of s 24 of the Code. For that section to have any application it would have been necessary for the jury to reject the complainant's evidence that he had yelled out, telling the two men to stop what they were doing and that he had moved his head away to avoid the appellant's penis and that he had in fact bitten the appellant's penis. The jury would also have had to reject the complainant's evidence that the appellant had held his head when forcing his penis into the appellant's mouth. It seems to me that, given the appellant's starkly contrasting evidence that the complainant had looked "happy" and that it was the complainant himself who had put his mouth on the appellant's penis and started sucking it, any reasonable jury would either have accepted the complainant's version or found that, having regard for the defence version of events, there was at least a reasonable doubt on the issue whether or not consent had in fact been given. There was no real scope for any finding of reasonable mistake (cf in this respect, Rodd v The Queen [2000] WASCA 329 at [42] to [45] and R v Verdon (1987) 30 A Crim R 388 at 391 - 392).

43 It also seems to me that Quartermaine's evidence added nothing of significance to the issue. While he heard no yelling or screaming, his evidence under cross-examination was that he would not have been able to hear it (or distinguish it) given all of the other shouting, laughing and joking that was taking place.

44 I would consequently decline to uphold this ground of appeal.

45 As to ground 1(b), during his address to the jury the prosecutor said, speaking of the role of defence counsel:

"He represents the interests of the accused Harman and his job, apart from testing the evidence against his client, has been to persuade you that you ought to have a reasonable doubt in respect of Harman."

46 The then counsel for the appellant urged upon the trial Judge the proposition that these comments had the potential to mislead the jury as regards the onus of proof. He submitted that the trial Judge should correct them. The trial Judge declined to do so, saying that, by the end of the trial, the jury would have no doubt about the burden of proof.

47 Having read his Honour's direction to the jury, I am satisfied that the jury was left in no doubt as regards the onus of proof. The trial Judge spelled out that the burden of proof was on the prosecution and that it was not for the accused to prove innocence. Also, when dealing with the elements of the alleged offences, his Honour was at pains to tell the jury that each such element had to be proved by the prosecution beyond reasonable doubt.

48 There is consequently no substance to this ground of appeal.

49 As to ground 1(c), the prosecutor, in the course of his closing address to the jury, mentioned that, when the appellant was first questioned by prison officers about the alleged offences, he had said that he had not been there on that afternoon. The prosecutor went on to say:

"Is he really worried about having been caught out having a consensual sexual relationship with ... [the complainant] or is he trying to distance himself? Then after that he clams up."

50 After saying that the jury should not draw an adverse inference against the complainant for not having spoken to the police, the prosecutor went on to say:

"... but he has had something like over a year of knowing what these charges are about and how to tell his story to try and explain away what he knows ... [the complainant] and the others will be saying, and you could weigh that in the balance too."

51 Counsel for the appellant contends that these comments suggested, contrary to the ruling of the High Court in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, that the appellant's exercise of the right of silence might provide a basis for inferring a consciousness of guilt.

52 The right of silence was described by Dawson J, in his dissenting judgment in Petty (at 118), as being "a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation". He said (ibid) that it embraced "the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority". In the same case, Mason CJ, Deane, Toohey and McHugh JJ said (at 99) that an incident of the right is that "no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information". Their Honours also said (ibid) that this incident of the right of silence "means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt".

53 As the ground of appeal is framed, the appellant contends only that the reference to him "clamming up", when asked by the police to give an interview, undermined his right to remain silent because it implied that he deliberately remained silent because he had a guilty mind. I do not accept that that is so. I have said that, after making this comment (which was unnecessary and, perhaps, ill-advised), the prosecutor told the jury that no adverse inference could be drawn against the complainant because he did not speak to the police. His subsequent comments make plain that his real contention was that, having denied to prison officers that he had ever been present at the time of the alleged offences, the appellant subsequently said nothing until the trial, thereby giving rise to a possible inference that he had used the intervening period of time to fabricate his very different defence of consent. I should add, in any event, that the trial Judge told the jury, in the course of his summing up, that, in not speaking to the police, the appellant had exercised his right of silence and that they could not "hold that against him".

54 While this is not directly raised by the grounds of appeal, I should, perhaps, comment on the fact that there are what might be described as two limbs to the holding of the High Court in Petty, the first being that to which I have already referred (that it may not be suggested that an accused's exercise of the right of silence provides a basis for inferring a consciousness of guilt), and the second being that it should not be suggested "that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable": per Mason CJ, Deane, Toohey and McHugh JJ at 99, Brennan J at 107 and Gaudron J at 129. In its context, the reference to "previous silence" seems to be one to silence in response to being questioned or asked to supply information by any person in authority, the right of silence being "designed to prevent oppression by the police or other authorities of the State": Petty, at 107, per Brennan J and R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 218, per Kirby J.

55 In Petty, Mason CJ, Deane, Toohey and McHugh JJ said, of this second limb, that (at 101):

"... the denial of the credibility of ... [a] late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment."

56 (See also page 107, per Brennan J, and page 129, per Gaudron J.)

57 In this case, the prosecutor undoubtedly suggested to the jury that, after "clamming up", the appellant had had plenty of time to consider how "to tell his story to try and explain away" the prosecution case. However, that suggestion was made against a background, not only of the appellant's silence in respect of the defence which he had raised at trial, but in which he had previously offered a different answer to prison officers when asked about the offences which were later charged.

58 Evidence was given at the trial by a senior prison officer, Geoffrey Ridge, to the effect that the complainant had reported to prison authorities (some 24 hours after the alleged assaults) that he had been assaulted. A decision was made to isolate Coffin and the appellant, Oliver having by then been discharged from prison. Ridge escorted Coffin to a separate confinement cell. While doing so, he passed another officer who was escorting the appellant to the central control area. Ridge questioned the appellant very briefly. He told the appellant that his name had been mentioned in an alleged incident. The appellant immediately said, "I wasn't there," before adding that he had heard that someone had been having sex with the complainant. Ridge said to him, "Well, if you know about it, you may have been there." However, the appellant again denied having been there.

59 In his evidence at the trial, the appellant acknowledged that he had told prison officers that he "wasn't there". He said that he had heard that the complainant had been raped and that he "was scared" and did not want to say anything because he knew they would not listen to him and that they would listen to the complainant.

60 It seems to me that in these circumstances the prosecutor was entitled to comment upon the appellant's conflicting explanations for his conduct and to point out that his current defence had emerged for the first time at the trial, long after his earlier, inconsistent, explanation had been given. There is, as I read Petty, nothing in that case which would prevent the prosecutor from doing so. Indeed, there, one of the appellants, Maiden, had not remained silent about an allegation that he had either murdered the deceased or been an accessory to the murder by his co-accused, Petty. He had participated in an interview with the police in which he asserted that he and Petty had agreed to kill the deceased and that it was Petty who had actually killed him. He did not thereafter, at any time prior to the trial, withdraw or correct that allegation to anyone in authority. At the trial, he raised the defence that he had himself accidentally killed the deceased while defending himself from attack. The Court held that, in these circumstances, evidence of the earlier allegation to the authorities against Petty was admissible against Maiden because, amongst other things, it cast doubt upon the genuineness of his later defence. The Court also said that evidence of his subsequent failure to withdraw the assertion that Petty had killed the deceased was also relevant and admissible in that it could lead to an inference of adherence right up to the time of the trial to what was, in effect, an allegation of murder against Petty and a denial by conduct of his defence at the trial: page 101, per Mason CJ and Deane, Toohey and McHugh JJ. Their Honours went on to say (at 102):

"What makes the present case different is the fact that Maiden's conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White. It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious."

61 (See also pages 107 and 111, per Brennan J, and page 126, per Gaudron J.)

62 In this case, too, the appellant effectively adhered, up to the time of trial, to his allegation, made to Ridge, that he had not been "there" at the time of the commission of the alleged offences. Evidence was quite properly led in respect of that allegation and the appellant was rightly cross-examined about it. It was consequently reasonable for the prosecutor to comment on that allegation's inconsistency with the appellant's defence at trial and also to make the comment that the appellant had had plenty of time to think about a better explanation than that initially offered by him. While (as I have said) the reference to the appellant "clamming up" might better have been avoided, there was, in these circumstances, no infringement of the second limb of the holding in Petty.

63 I would consequently decline to uphold ground 1(c).

64 As to ground 1(d), during the course of cross-examination of the complainant it was put to him that he had consented to having anal sex with Oliver. His response was as follows:

"No, I never. I did not say that. If I had done that, I wouldn't be sitting where I was now."

65 When the prosecutor came to make his closing address to the jury, he referred to this comment. He said:

"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."

66 The then counsel for the appellant objected to what had been done. He said that it infringed what he described as "the rule in Palmer's case". He was, of course, referring to Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, in which it was held that it is not permissible to cross-examine an accused to show that the accused does not know of any fact from which to infer that the complainant has a motive to lie. The principle enunciated in that case has since been said, in a number of other cases, to extend to the making of similar remarks by a prosecutor in the course of a closing address: see R v Hewitt [1998] 4 VR 862 at 867 - 870, per Buchanan JA; R v Topalidis [1999] QCA 376 at [42] and [44], per Chesterman J; Rodd v The Queen, above, at [29], per Ipp and Owen JJ; R v Smith [2000] NSWCCA 468 at [93], [96] and [97], per Wood CJ at CL; R v Kostaras (2002) 133 A Crim R 399 at [86] and [87], per Doyle CJ; Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 at [55] to [59], per Murray J (disagreeing, in part, with what had been said by Ipp and Owen JJ in Rodd); Ferry v The Queen [2003] WASCA 207 at [16], per Anderson J; R v Kostaras (No 2) [2003] SASC 323; (2003) 86 SASR 541 at [17] and [18], per Debelle J; and Beresi v The Queen [2004] WASCA 67 at [76] and [79], per Templeman J. Counsel for the appellant submitted to the trial Judge that, while the prosecutor had not directly asked the jury to consider the question of "Why would ... [the complainant] put himself through this ordeal?" the words which he had used "invited the jury to speculate on that very question".

67 Having heard submissions from counsel on this issue, the trial Judge said that he did not know what he could say to the jury to improve matters, adding that there was a risk of making matters worse. He said that he would think about it overnight. In the result, he elected to say nothing about the issue in his charge to the jury, other than that the jury should not speculate about what had been said by the complainant to the effect that "he wouldn't be here in court if he consented".

68 The appellant contends that his Honour erred in declining to "correct" what had been done by the prosecutor. In the course of the hearing before us, and in written submissions which have, with the leave of the Court, since been filed on behalf of both parties, his counsel has urged upon us the proposition that this has inevitably resulted in a substantial miscarriage of justice.

69 A convenient starting point, in considering this issue, is the judgment of Hunt CJ at CL in R v Uhrig, unreported; CCA (NSW); No 60200 of 1996; 24 October 1996. There, Hunt CJ at CL, after referring to the cases of R v F (1995) 83 A Crim R 502 and R v E (1996) 39 NSWLR 450, described two situations. The first was a case in which there was no direct evidence of an actual motive to lie and no evidence from which a specific motive to lie could reasonably be inferred. The second was where a motive to lie was asserted in relation to the evidence of the complainant or witness. He went on to say:

"What this Court said 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."

70 In R v Jovanovic (1997) 42 NSWLR 520 the Court of Criminal Appeal in New South Wales was confronted with a situation in which, in a case involving three counts of non-consensual "homosexual intercourse" with a 15-year-old boy, the complainant, when challenged as to his veracity by the accused's counsel, said, "... why would I make accusations like this if they never really happened?" Moreover, the accused, in a record of interview admitted into evidence and in oral evidence, suggested to the jury that the complainant had fabricated the alleged events and suggested a motive which he ascribed to the complainant for that fabrication.

71 The Crown prosecutor, in the course of his submissions to the jury, said:

"You might wonder why, as this young boy said to you, why would I make these things up? You might wonder why has he got this man in his sights? Why would he accuse him of these terrible things? If he was angry, as was suggested by the accused, that day because of something that some other person who we haven't seen or heard from, had an argument with him, why direct his anger towards a man that he'd only just met, a man he'd never really spoken to on the account of the accused? Why would he continue his anger to this time, three years later? Why would he get into the witness box and give you a very detailed account of what happened to him in those days in November of 1993, alleging these serious matters against a man that he'd only just met and had no contact with and no fights and no problems, according to the accused, had ever occurred between the two of them. Yet he apparently takes out his anger on ... a man that's just turned up."

72 The trial Judge, in his summing up to the jury, said the following:

"Some argument has been put to you, in the course of the trial, about motivation, although that word has not been precisely used. Effectively, what has been put is now why would this young man make the allegations he has? A direction I want to put to you and put to you quite emphatically is this. That this is a reasonable argument to be put to you and, indeed, it would be quite unrealistic to think that you would not yourselves, as members of the community, think about that. You are perfectly entitled to do that, you are perfectly entitled to think about, now why would this young man make the allegations, just as much as you would be entitled to think about, now why would this accused deny them? It would be defying commonsense to think that those considerations would not cross your mind."

73 It was held by Priestley JA and Sperling J, Cole JA dissenting, that it was not permissible to invite a jury to bolster a complainant's credibility with an argument that there is no apparent reason for the complainant to lie, as truthfulness is not to be inferred from the absence of any apparent motive to lie. Priestley JA, in his judgment, after endorsing the passage which I have earlier quoted from the judgment of Hunt CJ at CL in Uhrig, went on to say (at 522) that, when Hunt CJ at CL had said that it was "appropriate" for the Judge to direct the jury in the manner described by him in the circumstances identified, that word was being used in the sense of "something necessary to be done in the circumstances". He said that, if it were not done, "it would be left open to the jury to proceed to the illegitimate speculation proscribed in the first class of case".

74 His Honour went on to find, in Jovanovic at 523, that the trial Judge, "not only did not bring home to the jury that if they rejected the motive to lie which had been put forward by the appellant that did not mean the complainant was necessarily telling the truth, but also quite clearly left open to them as legitimate the inference that, if the complainant had no motive to lie, they could conclude that because of that alone, he was telling the truth". This, his Honour said (ibid), created the danger of illegitimate speculation which Hunt CJ at CL in R v Uhrig had said led to a miscarriage of justice.

75 Sperling J, too, said (at 539) that, by endorsing the impermissible line of reasoning advanced by the Crown prosecutor and, more importantly, by giving it his own approval, the trial Judge had contravened the law as stated in R v E and R v Uhrig.

76 Then, in Palmer, above, at [10], Brennan CJ, Gaudron and Gummow JJ approved what had been said in Uhrig. Their Honours also there (at [7]) raised two difficulties with the proposition that an accused might be cross-examined in order to demonstrate that he could not prove any ground imputing a motive to lie to the complainant. The first is that the fact that an accused has no knowledge of anything from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant (see [7] and [8] and see also [97], per Kirby J). The second is that, 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. Their Honours said, at [9], that a complainant's account gains no legitimate credibility from the absence of evidence of motive. They said that, 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.

77 Their Honours went on to say (at [13]) that, although the trial Judge had correctly instructed the jury on the issues for their determination and with respect to the onus and standard of proof of guilt, they doubted whether his directions were capable of neutralising the prejudicial effect of the questions which had been put by the prosecutor in cross-examination of the appellant.

78 Kirby J, in Palmer, mentioned (at [97]) that it had been common ground in that case "that, where the accused puts forward, by evidence or submission, a proposition that a witness vital to the Crown case has a particular motive to lie, the judge should direct the jury that, even if they were to reject such motive, that would not mean that the impugned witness was necessarily telling the truth" and that it "would remain for the prosecution to satisfy them that the witness was truthful". His Honour went on to say (ibid) that, logically, this must be so, because the accused might have insufficient materials to prove the false motives of an accuser or may be completely ignorant of, or mistaken about, the true motive which lies behind the falsehood.

79 Not long after the publication of the judgments in Palmer, the issue arose in the Victorian Court of Appeal in Hewitt. There, in cross-examination of the complainants in a case involving alleged sexual assaults, defence counsel put to them that their families had fallen out with the accused's family. In his address to the jury the prosecutor said:

"Most of all, what you have got to ask yourselves is this I suppose, and my learned friend will make some suggestion maybe, about what motive they had, what motive they have to lie, individually or collectively? I mean, it's been put to each of them, 'Look, you've discussed this matter with your friend and the family have fallen out. You don't like him.' All of them said (a) 'You're right, I don't like him because of what happened to me years ago. No there is no bun fight animosity between the families, just not there.'

...

These are women who have kept this so-called secret for years and years, and you ask yourselves what motive have either one of them and collectively, to lie and come along to this court, go through all this, go to the police, go through all this, what motive just to nail that man? I mean, what has been put forward as to why they should do that?

...

As I say, you ask yourselves what motive had they individually or collectively for lying, and put us all, you and me, and everybody through all this. Why would they make false allegations, what is their motive? And the answer is, there isn't one, ...

And you'll keep, I suggest, coming back to this question, why? Why, why, why, would they make it up? Why, why, why? What's their motive? And there isn't one, because they're telling the truth."

80 Having said all of this and (somewhat surprisingly) having said that he prided himself on not repeating himself at all, the prosecutor went on to invite the jury to "come back to that question" and ask themselves "what motive have they got?"

81 The trial Judge, in his charge to the jury, paraphrased the addresses of counsel, saying:

"On the question of the motive of the girls, he (defence counsel) pointed out there is no obligation by the defence to show any motive. There may be a motive here, but the accused would not know about it. The Crown has to prove its case beyond reasonable doubt and if there is some hidden motive, then he must take that possibility into account. He pointed out the fact that the girls admitted that they disliked the accused and that could play some part in the stories they have told."

82 Buchanan J (with whom Phillips CJ and Charles JA were in agreement) gave the lead judgment. He said (at 868):

"In my view the questions entitled the prosecutor to do no more than seek to rebut the existence of the motive suggested by the defence or eliminate or reduce its influence. To respond to the suggestion of a particular motive to lie with the question 'Why would the complainant lie?' is to suggest that if the jury rejects the defence suggestion, it is to be concluded that because no credible motive has been put forward, the complainant's evidence should be accepted. That is at odds with the correct view that the absence of proof of motive is entirely neutral."

83 After applying what had been said by Hunt CJ at CL in Uhrig, his Honour went on to conclude that the trial had miscarried.

84 The issue arose in Queensland in Topalidis. In that case, questions put by the prosecutor to the appellant, and his argument to the jury, implied that the complainant's evidence gained credibility because the appellant could not supply a motive for inventing the complaint. Chesterman J (with whom McMurdo P and, generally, Thomas JA were in agreement) said, at [42], that this was impermissible. He said that the questions and argument were irrelevant to the issue whether the Crown had proved beyond reasonable doubt that the appellant had committed the offences with which he was charged and that the tactic was "pernicious" because it implied that an accused bore an onus of proving a false motive which, if not discharged, led to acceptance of the complainant's evidence.

85 The trial Judge had directed the jury in the following terms:

"The Crown prosecutor said ... that the complainant had stuck to her story on a number of occasions. I direct you that that does not necessarily mean she is telling the truth, nor does it necessarily strengthen the Crown case.

The defence has pointed to a number of matters, so have I, indicating that the complainant may have had a motive to make false allegations. This in no way reverses the onus of proof ... The defence does not have to prove anything.

If you think the reasons put forward for possibly lying on the part of the complainant are not reasonable you must still be satisfied, beyond reasonable doubt, about the truth and accuracy of the essentials of the complainant's evidence before you convict the accused on anything. And you must remember that there may be reasons, apart from those referred to for the complainant telling lies. The complainant does not gain credibility by either the absence of a proven motive, or that she has repeated a certain story."

86 After referring to that direction, Chesterman J said that it did not address the problem which the High Court had identified in Palmer, namely that a jury might be misled into thinking that unless an accused establishes, by his own evidence, a motive for a false complaint, the complainant's evidence should be believed. His Honour went on to say (at [47]):

"There was no mention ... of the critical element: what was to be made of the fact that the appellant himself could not offer any evidence of motive? The trial judge did not refer to the cross-examination of the appellant on the topic, or to the prosecutor's arguments. It was not explained to the jury that the question was irrelevant and the argument was mistaken. Nor were they advised of the danger of falling into error from an inverted onus of proof. No reference was made to the distinction between questioning the complainant about her motives for making a complaint and interrogating an accused about his ignorance of those motives."

87 His Honour went on to say that the case had been one which had been finely balanced and that, in that context, an invitation to believe the complainant and find the case against the appellant proved beyond reasonable doubt, on the basis that the appellant could not demonstrate why she should make up her story, was such as to have deprived the appellant of a significant possibility of acquittal.

88 Thomas JA, in his judgment, added that, notwithstanding his agreement with what had been said by Chesterman J, "the question of motive for a false complaint should not be regarded as territory which a Crown prosecutor may not enter" (at [13]). He went on to say (at [13] - [14]):

"In most if not all trials of this nature the critical question is whether the complainant is telling the truth. In any such trial, and particularly when the contest is between the complainant's version and a defence version which says nothing improper happened, and both corroboration and disproof are lacking, it is almost inevitable that counsel and for that matter the jury will seriously consider whether any motive exists for bringing a false complaint. When it is shown that such a motive is likely, other things being equal this is likely to be the basis upon which a jury will entertain a reasonable doubt concerning the complainant's veracity and will therefore acquit. It is commonplace for defence counsel to canvass such issues. I consider that defence counsel did so, albeit discreetly, in the present case.

In such a situation there is nothing improper in the Crown prosecutor attempting to counter such suggestions and to demonstrate and ultimately submit that the complainant did not have such a motive, or by any reasonable argument to endeavour to refute defence suggestions to the contrary. What the Crown must not do, and what the court must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or that at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth."

89 His Honour agreed that, in a finely balanced trial, the Crown had gone too far and that the matter was not adequately corrected by directions from the trial Judge.

90 Topalidis was applied in Rodd. There, Ipp and Owen JJ said (at [32]) that, while it was legitimate to consider whether any motive existed for bringing a false complaint, the Court had to ensure that the jury did not gain the impression that the defence had an onus of showing that there was a particular reason for the complainant not telling the truth. They concluded (at [34]) that there was a reasonable probability, in that case, that the jury was influenced significantly by the lack of motive on the part of the complainant to lie. That being so, in the absence of a direction along the lines indicated in Topalidis, their Honours considered that it was not possible to say that no substantial miscarriage of justice had occurred.

91 In Smith, Wood CJ at CL (with the concurrence of Giles JA and Jones J) stated what must, with respect, be the unassailable proposition that, as a matter of common sense and everyday experience of life, one of the first matters that will occur to the jury is the question why, unless it is true, the complainant would make an allegation up and go through all of 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. His Honour went on to say (at [100]):

"Notwithstanding, the rigours of the criminal law have held the line by reference to the foundational principle that it is for the Crown to prove its case beyond reasonable doubt, and not for the accused to prove his innocence. The only exception allowed has been where a motive to lie has been asserted, on the part of the complainant, or by some other witness essential to the prosecution case, or where such a motive could reasonably be inferred from the evidence. In such a circumstance, justice requires that it be dealt with, and that the jury give consideration to the question whether there was a reason for the complainant to lie."

92 Then, after referring to the judgment of Priestly JA in Jovanovic, and in particular to the passage, referred to above, in which his Honour mentioned that the word "appropriate" used by Wood CJ at CL appeared to him to have been a reference to something that should "necessarily" be done, Wood CJ at CL said (at [106] and [107]):

"Although some support for this view exists in the judgment of Kirby J in Palmer at 275, I would prefer to read the expression in a less rigid way, leaving it to the trial Judge to frame a direction suitable to the way in which, and the firmness with which, the possibility of motive has been opened up on the evidence, and in the closing addresses. In some cases, particularly where the motive is offered by the accused himself or herself, then the additional direction would normally be appropriate, lest the jury think it proper to penalise the accused for offering a reason which they find to be spurious or hollow, or designed unfairly to denigrate the complainant.

Where the evidence of a possible motive comes from another witness, or where the matter arises in some half-hearted way, in passing, as I believe it did in this case, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence, it being for the Crown to establish guilt beyond reasonable doubt, and that they ought not to speculate about matters that are not established upon the evidence."

93 In Kostaras, the prosecutor, in her closing address to the jury, challenged a suggested motive for witnesses to lie. The Court held (at [90]) that she had been entitled to invite the jury to consider the likelihood that these witnesses would lie for the reasons suggested or implied but that, in doing so, she was not entitled to take the further step and suggest that the absence of a persuasive motive to lie in fact enhanced the credibility of these witnesses, or strengthened the prosecution case. It found that she had not done so in the circumstances of the case.

94 In Crisafio, after reviewing a number of the cases on this issue, Murray J, with whom Malcolm CJ and Wheeler J were in agreement, identified five propositions which, he said, might be derived from the authorities. The fifth was as follows (at [59]):

"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."

95 Finally, so far as this review of the cases is concerned, in R v Kostaras (No 2), the prosecutor had made a lengthy submission to the effect "Why should the complainant and witnesses for the prosecution lie?" In the course of doing so he referred to the appellant's case as being one which asserted that there had been a "grand conspiracy" on the part of the complainant and witnesses for the prosecution to lie. Debelle J said (at [17] and [18]) that it was well established that it was not permissible for a prosecutor to cross-examine an accused person in a manner that poses a question of that kind or that invites the accused to suggest, or implies that the accused should be able to suggest, a reason why the complainant would lie and that those principles applied with equal force to the address by prosecuting counsel to the jury.

97 While there appears to have been no suggestion, in the evidence of the appellant, that the complainant had some motive to lie, the issue was raised, in passing, by his then counsel during the course of his closing address to the jury. He said:

"Remember, ladies and gentlemen, that immediately after this alleged event ... [the complainant] was saying it was his fault, what had happened in the cell [a reference to the complainant's evidence to the effect that he had blamed himself because he had been 'flirting around']. You might ask yourself what he meant by that. Did he mean that he had initially consented and things got out of hand and then he was hurt, because he did say in the company of ... [another witness] to Mr Oliver, 'You know what you did, you made me bleed,' so maybe that's the trigger to all this you might think."

98 Counsel for the appellant then returned to the suggestion from the complainant that it had all been his fault, making such capital of it as he could.

99 In my opinion, this very brief reference to a possible motive was sufficient to justify an answer from the prosecutor, even one to the effect that a motive of so limited a kind would not justify the complainant in putting himself through everything which a criminal trial involved. However, the prosecutor went much further than that (and a good deal further than the prosecutor in Smith had gone: see at [90] and [91] of the judgment of Wood CJ at CL). As will be apparent from what I have earlier said, he fastened upon the uninvited response of the complainant, during his cross-examination, to the effect that, "If I had ... [consented], I wouldn't be sitting where I was now" in order to support the proposition, which was at least plainly implicit in what he said, that there was no other explanation, than that the complainant was telling the truth, for the fact that he had been prepared, in effect, to humiliate himself "before a bunch of strangers". The prosecutor expressly invited the jury to speculate about the answer to the question whether or not the complainant was "telling some elaborate lie for some reason". It was only at the tail-end of that very strong submission that the prosecutor mentioned that the defence had suggested that the fact that Oliver had hurt the complainant might have been enough for him to complain to the prison authorities "and to see it all the way through".

100 In my opinion, as a consequence of what was said by the prosecutor the jury was left with the impression that the absence of evidence indicating any sensible motive for a false complaint strongly suggested that the complainant must be telling the truth.

101 Having regard for the authorities to which I have referred (and, in particular Jovanovic at 523 and 539, Palmer at [9] and [97], Hewitt at 868, Topalidis at [14] and [47], Rodd at [32], Kostaras at [90] and Crisafio at [59]), that impression was required to be avoided, if it could be, by a very firm direction from the trial Judge. However, as I have said, none was forthcoming, other than a direction to the jury that it was not for them to speculate about the complainant's statement that he would not be in court if he had consented to what had been done to him. The trial Judge said, in that regard, the following:

"[The prosecutor] ... put to you that the complainant's statement that he wouldn't be here in court if he consented was plausible and believable as a statement. As to that, of course, it is not for you to speculate about that matter, but that is what the complainant did say."

102 While his Honour also gave the usual directions with respect to the onus of proof, a direction warning the jury that, if they positively rejected the evidence of the appellant, they should still ask themselves the question whether, upon the evidence of the complainant, or so much of it as they accepted, they could be satisfied of guilt beyond reasonable doubt and a direction that they should not speculate or develop theories not supported by the evidence, these were not, on the authorities to which I have referred, sufficient to cure the prejudice created by the prosecutor's submission: cf, in particular, Palmer at [13]; Topalidis at [14] and Rodd at [34].

103 Also, while counsel for Oliver, in the course of his closing address to the jury, said (after referring to what had been said by the prosecutor on the issue of motive) that motive was "irrelevant", that it did not matter why the complainant might have made his allegations, that the question was not that of why he made them but whether the jury could accept his evidence that events happened as he described them and that, once having made his complaint, it was not up to the complainant "where it went" thereafter, these submissions were no substitute for a firm direction from the trial Judge of the kind to which I have referred.

104 In all of the circumstances, and given that, as it seems to me, this was a case in which credibility must have played a very substantial part in the jury's determination, there is a reasonable probability that the jury was influenced significantly by the lack of motive on the part of the complainant to lie. Consequently, in the absence of a direction of the kind suggested in Topalidis it is not possible, in my opinion, to say that no substantial miscarriage of justice has occurred.

105 I would consequently uphold this ground of appeal.

106 It is convenient to deal with grounds 1(e), (f) and (g) together.

107 In his address to the jury, the prosecutor suggested that they might think that the evidence of Coffin "should be taken with a pinch of salt". He went on to say:

"What was particularly unhelpful in assessing his evidence, you might have thought, was his agreements, yes, no, yes, no, yes, no, to things that were being put to him in cross-examination ... . Sure you can ask leading questions in cross-examination, ask people, 'Well, did this happen?' and see if they get a yes or no answer, but a particular theory was being put to him and you might have thought in listening to him that they were Dorothy Dix's [sic] that he was just happy to agree with as a line of least resistance because it got him out of the witness box faster."

108 It was suggested by counsel for the appellant that this amounted to an impeachment, by the prosecutor, of his own witness in circumstances in which this was not permitted by s 20 of the Evidence Act 1906 (WA), the trial Judge not having declared the witness to be hostile. She submitted that the prosecutor should not, in any event, have been permitted to criticise the evidence of Coffin in circumstances in which he had neither sought the right to cross-examine him nor suggested to him, in re-examination, that his evidence was not credible.

109 Section 20 of the Evidence Act reads as follows:

"20. How far a party may discredit his own witness

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence, if in the opinion of the judge he is hostile to the party producing him."

110 While, at common law, a party cannot elicit from one witness a statement that another of its witnesses is not to be believed, it is always open to a prosecutor to call evidence from a witness which is directly inconsistent with the evidence of another prosecution witness, leaving it to the jury to determine which of the two versions they accept: R v M [1980] 2 NSWLR 195 at 210. That being so, it would be ludicrous if the prosecutor was not also entitled to invite the jury to believe one or the other. To do so would not be to "discredit" a witness, except collaterally: cf Cross on Evidence, 6th Aust ed, par [17370].

111 Section 20 of the Evidence Act limits the ability of a party to contradict the evidence of its own witness by other evidence to a circumstance in which that witness is, in the opinion of the Judge, hostile to the party producing him. However, that is not what happened in this case. The prosecutor did not seek to contradict the evidence of its own witness by other evidence. Here, the complainant gave evidence that he was sexually assaulted before Coffin was called to the witness stand. Coffin was presumably called by the Crown as a witness upon the assumption that his evidence would support that given by the complainant. Indeed, his evidence-in-chief generally did so (albeit it minimised his own part in what took place). It was only under cross-examination, in the extract from his evidence to which I have earlier referred, that he seriously contradicted the evidence of the complainant (and his own evidence-in-chief).

112 In these circumstances it seems to me that it was open to the prosecutor to invite the jury to prefer the evidence of the complainant to that given by Coffin in the course of cross-examination. Contrary to submissions advanced on behalf of the appellant, this entitlement was not affected by the fact that the prosecutor had not sought to be given the right to cross-examine Coffin (by having him declared hostile, if that had been feasible) and had not given him the opportunity, in re-examination, to answer the allegation that his answers should be taken "with a pinch of salt" (a question which would, in any event, necessarily have amounted to cross-examination and not re-examination, the allegation being one made by the prosecutor himself).

113 While it may be so that the prosecutor was somewhat more colourful in his language than he needed to be, and while it is true that what was said by him necessarily cast some discredit upon Coffin's evidence, the question is one of degree and I am not persuaded that anything said or done by the prosecutor in that respect might have led to any substantial miscarriage of justice. I am fortified in this by the fact that, when the then counsel for the appellant objected to what had been said by the prosecutor in this respect and the trial Judge said, in response, that he did not know what he could do about it other than to inform the jury (as he subsequently did) that it was for them to determine whether a witness is telling the truth, no matter who called that witness, counsel for the appellant was content for that course to be adopted.

114 Next, counsel for the appellant contended that matters went a step further when the trial Judge told the jury, in explaining what evidence is, that a lawyer's question, or a police officer's question, is not evidence and that only the answer is evidence. Counsel for the appellant at the trial had invited his Honour to redirect the jury on that issue because what had been said might "unfairly water down cross-examination". He submitted that if the witness adopted the question that had been put, then the lawyer's question became part of the evidence. He relied, in particular, upon the cross-examination of Coffin in that respect. The trial Judge responded by saying that it was obvious to the jury that if a witness answered "yes" to a particular proposition, then the witness was adopting that proposition and that the adoption of the proposition amounted to evidence by the witness.

115 In my respectful opinion, his Honour was correct in what he said. There is no substance to the appellant's complaint.

116 It also seems to me that his Honour was similarly correct in failing to criticise the prosecutor for referring to the questions asked of Coffin as "Dorothy Dixers". It was for the jury to evaluate the worth of the answers to the questions put and the attitude of the witness in answering them, taking into account the way in which the questions had been framed, and the prosecutor was entitled to make the comments he did. There was no need for the trial Judge to give any further direction in that regard.

118 As to grounds 1(h) and (i), it is unfortunate that no transcript was available at the trial. That situation should be remedied, if at all practicable. It is just as important in regional centres as it is in Perth that, if juries are to ask questions with respect to what was said during the course of the evidence, a transcript is available in order to ensure that an accurate response is given.

119 In this case the jury asked if it was possible to have a transcript of the evidence of Coffin and also of the evidence of another witness, Gary Riley, who had spoken of a complaint made in his presence by the complainant.

120 Undesirable though it was that the trial Judge was unable to read to the jury any relevant passages from the transcript of the evidence of these two witnesses, I am not persuaded that any substantial miscarriage resulted. The trial Judge told the jury:

"Nobody has a transcript ... . You will note that the proceedings are recorded but it will be some time before there is a transcript - days. I haven't got a transcript; nobody has, so you can't have it because there ain't one.

If this trial were taking place in Perth, then there would be a running transcript in most cases. It is not unheard of in Perth for a jury to ask for the evidence to be read and the judge or the two lawyers would then read out the evidence of what the witness had said from the transcript if it is available in Perth pretty quickly, but not in any country area. We obviously can't do that. If there is something specific, some specific area or some specific answer or something like that, then we could find out whether there is any agreement about what was said. It might be that we will be able to check the tape to see what it was or something but other than that, we can't help you.

If there is something specific, I invite you to give me a note about it after you have gone back into the jury room and assessed the implications of what I have just said. In the absence of anything specific, you are just going to have to do the best you can, relying upon your recollection of what it was they said. Thank you. Please retire again."

121 The jury did not come back with any further request and, in that circumstance, it seems to me that it must be inferred that there were no specific areas of uncertainty and that, having considered the fact of the absence of the transcript, the jurors were content to rely upon their own recollection.

122 That being so, and there having been no question of any denial of natural justice (an issue which was not pursued in closing submissions), these grounds have not been made out.

123 It follows, from all that I have said, that I would uphold only ground 1(d) of the grounds of appeal. However, for the reasons which I have given in dealing with that ground, that is sufficient, in my opinion, to result in the appeal being allowed and the conviction quashed. I would order a retrial.

124 PULLIN J: I have read the draft reasons for decision of Murray J and Steytler J. I agree with their Honours that grounds 1(a), (b), (c), (e), (f), (g), (h) and (i) should be dismissed for the reasons given by Steytler J.

125 As to ground 1(d), I see that the other members of the Court are not in agreement. Steytler J has fully summarised the facts of the case and has set out the authorities which bear on the issue raised by ground 1(d). The complaint of the appellant in ground 1(d) is that the learned trial Judge erred in failing to "correct ... the prosecutor" who had "... 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?'".

126 The relevant point of principle which emerges from the cases referred to by Steytler J in [66] of his reasons is that the jury must not be left with the impression, from the way the case is conducted, that the accused has the onus of proving there was a motive for the complainant not telling the truth: see R v Topalidis [1999] QCA 376 at [14] and [16]; Rodd v R [2000] WASCA 329; R v Taylor [2000] QCA 96; Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169 at [56]; Ferry v R [2003] WASCA 207 at [16]. In the latter case Anderson J said:

"I would accept the applicant's submission that the jury should not have been asked 'So why would she be doing it? There's a question you might want to ask yourself'. It invited the jury to reason that the absence of a proved motive on the part of the complainant for the making of a false accusation against the accused strengthened her evidence. For the Crown to conduct its case on that basis is plainly impermissible and it does not matter whether the invitation to reason in that fashion arises from the nature of the cross-examination of the accused or from the prosecutor's address to the jury: Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1; Rodd v The Queen [2000] WASCA 329; Lathain v The Queen [2000] WASCA 57 at [17]. The danger is that the jury might consider that unless there was shown to be a reason why the complainant should lie, her story should be accepted. The effect is to impermissibly place an onus on the accused to come up with an explanation for why the complainant might be lying; and the effect of this is to diminish the fundamental rule that the Crown bears the onus of proof at every stage of the trial: Palmer v The Queen (supra) at 9."

127 The question is, therefore, whether counsel for the prosecution suggested that the accused had an onus to come up with an explanation for why the complainant might be lying and if so, whether the fundamental rule that the Crown bore the onus of proof at every stage of the trial was thereby diminished.

128 The comments made by the prosecutor in this case, and complained about in ground 1(d), were directed to evidence given by the complainant at the end of his cross-examination by counsel for the accused. The clear objective of counsel was to have the complainant agree that he consented to having sex with the accused. In answer to counsel's questions the complainant on several occasions denied that he consented to oral sex. He eventually said to counsel for the accused that he would refuse to answer the question again "because I've answered it about 10 times ..." (t/s 135). The trial Judge intervened and mildly suggested that this was a good point, but counsel for the appellant persisted and, in winding-up his cross-examination, put again that the complainant had consented to having oral sex with the appellant. The complainant again denied doing so. Counsel for the appellant in his final question then asked whether the complainant consented to having sex with the other accused, Oliver. He put to the complainant "You never consented to having anal sex with Mr Oliver?" and the complainant answered "No, I never. I did not say that. If I had done that, I wouldn't be sitting where I was now."

129 During his closing address counsel for the prosecution said:

"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)

130 In my opinion, counsel for the prosecution impermissibly invited the jury to speculate about whether the complainant had some reason to tell a lie. This suggested, by implication, that the absence of any reason would strengthen the complainant's evidence. That he did so is particularly surprising given it was the same counsel who impermissibly invited similar speculation in Ferry's case: see [16] and [17]. The decision of the Court of Criminal Appeal was handed down several months before the trial in this case.

131 Counsel for the prosecution in this case, in the passage quoted above, did however conclude his comments by reminding the jury that they had to be satisfied beyond reasonable doubt that the events described by the complainant happened and that the complainant was not agreeing to it.

132 The jury had already been told by the learned trial Judge at the beginning of the trial immediately after the jury had been empanelled that the onus was on the prosecution. He said:

"... So the prosecution has laid those charges and you should realise that the prosecution has the burden of proof of guilt. It is for the prosecution to prove its case. It's not for an accused person to prove their innocence. An accused person is merely that: merely a person accused.

Indeed an accused person doesn't have to prove their innocence. More than that, an accused person is presumed innocent. There is a presumption of innocence and that's what you start off with, and that's only changed or set aside if a jury like you, having been instructed on the law by a judge like me, reaches the view that the person's guilt has been proved. Once you reach that view, then the presumption of innocence no longer is there.

... The prosecution has got to prove its case beyond reasonable doubt before you could find either accused guilty." (AB 23)

133 In summing up the trial Judge referred to what counsel for the prosecution had said, which I have quoted above and which is the subject of complaint in ground 1(d) of the appeal. The trial Judge said:

"... He put to you that the complainant's statement that he wouldn't be here in court if he consented was plausible and believable as a statement. As to that, of course, it is not for you to speculate about that matter, but that is what the complainant did say. ..." (AB 306)

134 Shortly before this, the learned trial Judge had made the point to the jury in general terms, by directing them that speculation is not evidence. He said:

"... Obviously theories not supported by the evidence are not evidence. Speculation is not evidence. ..." (AB 297)

135 The trial Judge also gave clear directions to the jury reminding them that it was for the prosecution to prove the case and that it was not for the accused to prove innocence.

136 In Ferry's case, counsel had made impermissible submissions inviting speculation and impermissibly suggesting the accused had an onus to come up with an explanation for why the complainant might be lying. The court in that case, however, considered that the error was corrected so that the jury did not go into the jury room with the wrong impression: see Ferry [17].

137 In this case, counsel for the prosecution conceded immediately after making the impermissible comments, that the case had to be proved beyond reasonable doubt. In addition, the trial Judge gave clear directions on the burden of proof. He gave directions that the onus was on the prosecution. He gave a Liberato direction and he gave an express direction to the jury not to take up the implied invitation by counsel for the prosecution to engage in speculation about the (irrelevant) issues which might be suggested by the complainant's last answer in cross-examination. Putting all this together, my conclusion is that the jury was not left with the impression that it was permissible to speculate about the complainant's motives and they were not left with the impression that the accused bore some onus to come up with an explanation as to why the complainant might be lying. As a result, my opinion is that there was no miscarriage of justice.

138 For these reasons I therefore agree with Murray J that ground 1(d) should be dismissed.

139 As a result, I consider that the appeal should be dismissed.

• The Contentious Evidence

• The complainant
• Coffin
• The appellant

• The Grounds of Appeal
• Ground 1(a)
• Ground 1(b)
• Ground 1(c)
• Ground 1(d)
• Grounds 1(e), (f) and (g)
• Grounds 1(h) and (i)
• Conclusion