Ground of Appeal One - The Crown's Address
26 The terms of this ground of appeal are set out in [4] above. The appellant's written submissions in support of this ground included the following:
"Whilst the Crown endeavoured to justify the submission to the jury on account of the fact that there had been a suggestion that the complainant had ill motive towards her father, the submission was not confined to a proper investigation of the motive contended for. Rather the submission invited the jury to consider at large what motives either witness may have for lying.
…
Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments: Regina v Uhrig at 16-17; Palmer v The Queen at [10] - [11]. To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask "Why would the complainant lie?" is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant's evidence."
27 In the final paragraph from his address quoted in [22] above, the Crown Prosecutor referred to scrutiny of the "evidence of the accused and [JH]". In my view, it should be assumed, favourably to the argument of the appellant on this appeal, that the jury may well have understood the reference to JH to have been intended by the Crown Prosecutor to be a reference to the complainant. JH's evidence of the complaint made to her by ZW appears to have been uncontentious as she was not cross-examined by the appellant's counsel. On the other hand, the jury was aware that the complainant's evidence had been the subject of forceful attack in cross-examination. What the Crown Prosecutor said only made sense if he was understood to have been referring to the complainant rather than JH. I therefore proceed upon the basis that he would have been so understood.
28 Reliance was placed by the appellant upon the following passage from the judgment of Hunt AJA in South v R [2007] NSWCCA 117:
"Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. The jury's task necessarily does not include speculation as to whether there is some other reason why she would lie: Regina v Uhrig CCA 24 October 1996 [BC 9605087] at 15-16; Palmer v The Queen at [8]). Nor does the jury's task include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused: Regina v F (1995) 83 A Crim R 502 at 511-512; Palmer v The Queen at [8]" (at [42]).
29 In that case, Hunt AJA (with whom Simpson and Whealy JJ agreed) concluded that "the judge clearly did implicitly suggest to the jury by his question 'Why should she lie?' that it was open to them to find that the complainant was telling the truth because the accused had not established a motive to tell lies" (at [40]) and that this was objectionable.
30 As pointed out by Hunt AJA, it is objectionable also if a suggestion of this type is made to the jury by the Crown Prosecutor (see [41]). If that occurs, regard must however be had to the directions to the jury given by the trial judge in the Summing-Up, or otherwise during the trial, to ascertain whether the jury could have been left with the impression that it was entitled to act upon the basis of the objectionable suggestion.
31 When understood in the context of his address and of the course of evidence at the trial, the Crown Prosecutor's remarks in the present case did not in my view carry with them the implicit suggestion concerning the complainant's evidence which was found by Hunt AJA to have been conveyed in South v R. It is significant that the central evidentiary contest of the trial in this case revolved, first, around the appellant's attack on the complainant's evidence upon the basis that she was making unfounded allegations because, for a number of identified reasons, she bore animosity towards the appellant and, secondly, the appellant's evidence, again the subject of challenge, as to the existence of that animosity and the reasons for it.
32 By the conclusion of the evidence, the jury was well aware of a significant number of reasons why the appellant contended that the complainant had reason to lie. The portion of the Crown Prosecutor's address complained of was introductory to a description of the motives to lie which the complainant was said to have had. It was followed by a detailed discussion of those matters in the Defence Counsel's address and in the Summing-Up. As well, it was followed in the Summing-Up by repeated references by the trial judge to the Crown's onus of proof including (see [24] above) to that onus in the context of the statement by his Honour to the jury that the case "is not a competition between the complainant's evidence and the accused's evidence".
33 In these circumstances, I do not consider that it can reasonably be concluded that the jury was invited to speculate as to whether there was any reason other than the reasons raised by the appellant as to why the complainant would lie, or that it was suggested to the jury that it should accept the complainant's evidence unless the accused established a reason why the complainant might lie (compare South v R at [42]). In the circumstances of the trial, the question asked rhetorically by the Crown Prosecutor (see [22] above), insofar as it may have been understood by the jury as referring to the complainant (see [27] above), was "not directed to a speculative motive for lying" (see Brown v R [2008] NSWCCA 306 at [50] and also DOE v R [2008] NSWCCA 203 at [58-60]).
34 The appellant also relied upon Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, which was followed in South v R. In Palmer, the majority of the High Court said:
"To ask the accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.
As a matter of common sense, such an invitation is also extended to the jury where either the Crown prosecutor or the judge asked the jury the same question" (at [8]).
35 In Palmer, the accused was expressly asked in cross-examination why the complainant might be lying. This did not occur in the present case, nor, for the reasons I have given above, was there any implicit invitation to the jury to act upon the basis that it was for the accused to prove a motive for the complainant to lie.
36 The other aspect of the appellant's complaint as to the passage in the Crown Prosecutor's address (quoted in [22] above) was that it invited the jury to consider "competing motives". It was submitted that the "inevitable inference was that the appellant had a greater motive to lie than the complainant because he is guilty. This is precisely the prohibited inference which the Crown put to the appellant on more than one occasion". Reference was then made to the questions in cross-examination (quoted in [20] above) which involved the assertion that the appellant had lied to get himself "out of trouble".
37 The appellant relied upon the decision in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 where, in the course of directing a jury about assessing the credibility of witnesses, the trial judge had said that it should take into account the interest a witness might have in the outcome of the case and that "you might think … that the accused had the greatest interest of all the witnesses … and that therefore, you should scrutinise his evidence closely". The High Court held that there was a serious misdirection in the Summing-Up, that went to the fairness of the trial of the appellant and undermined the presumption of innocence, because the trial judge's directions would have been understood by the jury "as meaning that the evidence of the appellant had to be scrutinised more carefully than that of any other witness" (at 536).
38 The Court said:
" … his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. Fairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a "suspect witness" in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as "suspect witnesses", that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny. An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr Butler, counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts …
Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses and the outcome of the case is to strike at the notion of a fair trial for an accused person except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown" (at 535-6 citations omitted).
39 The focus of the appellant's objection to the Crown Prosecutor's address is on the question he posed: "Is there any reason why either of these people would want to tell lies". Insofar as this would have been likely to have been understood by the jury as referring to the complainant, the statement was one which it would have been better for the Crown Prosecutor not to have made because it was not expressly confined to the particular matters put to the complainant in cross-examination. Nevertheless, for the reasons I have given above, in the context of the trial it was implicitly so confined and no unfairness to the appellant resulted.
40 Insofar as the question related to the appellant, again my view is that it would have been better if the question had not been posed. As pointed out by Grove J in R v Booty NSWCCA (19 December 1994, unreported) the "interest of an accused person in securing an acquittal is self evident". However, references to it in the course of the trial should be avoided to the extent possible because such references may unfairly prejudice the position of the accused by suggesting that he or she is to be treated as "a suspect witness" and undermining the presumption of innocence in the manner pointed out in Robinson.
41 Nevertheless, I do not consider that the Crown Prosecutor's questions created any unfairness to the appellant. The matter complained of falls far short of that found in Robinson to have prejudiced a fair trial. Here, the question contained no explicit reference to the appellant's interest in the outcome of the trial nor did it, unlike the directions in Robinson, suggest that the appellant's evidence was to be the subject of particular scrutiny. Nor did it compare the appellant's interest in the outcome with that of other witnesses. Moreover, the judge's subsequent Summing-Up clearly directed the jury as to the presumption of the appellant's innocence and contained repeated directions as to the Crown's onus of proof (see [24] above). Further, the judge specifically directed the jury that the case did not involve "a competition between the complainant's evidence and the accused's evidence" and reiterated the need for the Crown to prove its case against the accused beyond reasonable doubt (see [24] above). In my view, the jury was clearly apprised of the task it had to perform and the question posed by the Crown Prosecutor did not impair the fairness of the trial.
42 In their decision in Stafford v The Queen (1993) 67 ALJR 510 on a special leave application, three justices of the High Court referred with approval to Robinson and said that "[o]rdinarily … , it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence" (at 510). The same may be said of the Crown Prosecutor, although in the present case, as I have indicated, no unfairness to the appellant resulted from such implicit reference to this matter as the Crown Prosecutor's address may be taken to have made.
43 In Ramey v The Queen (1994) 68 ALJR 917, three justices of the High Court, again in determining a special leave application, referred to the "rigour" of the principle in Robinson and referred to the "prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case". This did not occur in the present case.
44 I would add in conclusion on this ground of appeal that it is of some significance in assessing the fairness of what occurred that counsel for the appellant at the trial did not seek any further direction beyond those given by the trial judge (see [25] above). Whilst counsel had earlier made an unsuccessful application for the jury to be discharged it was open to him, if he thought fairness demanded it, to seek further directions. The trial judge specifically enquired as to whether there were any further directions sought.