R v Cupid [2004] VSCA 183

67. 21 The applicant and his wife had two children, Jessica and Kenny, who were aged 11 and 9 at the time of the alleged offences. The complainant was a friend of Jessica and was the same age. Her evidence on count 1 was as follows. In November 2000 she called at the applicant's home while Jessica was out. The applicant said that Jessica would be back in five or ten minutes. While they sat together on a couch, he started tickling the complainant. He touched her on her sides and on her stomach and started trying to lift up her top. He repeatedly said, "Just give me a look." The complainant kept holding her top down and eventually went into Jessica's bedroom and waited there until Jessica arrived a few minutes later. In her VATE interview, but not in her evidence at the trial, she also said that the applicant touched her breasts. In cross-examination she said that she had forgotten to say that when she was giving her evidence but that whatever she had told the police was true.

70. The offences the subject of counts 2, 3, 4 and 5 allegedly occurred in late December 2000 after the complainant had spent the night at the applicant's home and prior to her mother picking her up in the afternoon. The applicant was playing with his children and the complainant. He would carry a child on his shoulders from the loungeroom into his bedroom and drop the child on to his bed before carrying the child back to the loungeroom. The complainant's evidence was that the applicant told Jessica and Kenny to stay in the loungeroom when he took the complainant on his shoulders into his bedroom. After he dropped her on to the bed, he held her down and inserted his hands down her shorts and in between her legs prior to inserting his finger into her vagina. He then started feeling and squeezing the complainant's breasts from outside her clothing. She tried to pull or push the applicant's hands away from her, but he sat her on his knee and put her hand on his groin. She felt the applicant's erect penis through his clothing. He then touched her on the breasts.

73. Evidence was given at the trial by the complainant, her mother, both the applicant's children, the detective who interviewed the applicant, the applicant and the doctor whom the complainant's mother had consulted on the evening of the alleged incidents in December and the next day. The applicant denied that he had engaged in any sexual impropriety with the complainant.

76. In the course of his cross-examination of the complainant, counsel for the applicant elicited that his client had found out that the complainant and Jessica had visited a pornographic internet site. The applicant had told them that that was inappropriate and that, if it happened again, they would not be allowed to use the computer, but the complainant did not think that he had told her parents. The prosecutor understood that defence counsel was suggesting that the complainant's motive to accuse the applicant was a grievance arising from the computer incident. The questions in cross-examination had been permitted, over objection, on the basis that they went to motive, although that was not in fact put to the complainant.

79. If there was such a suggestion, it was appropriately and fairly dealt with by the prosecutor in his final address. He concluded on this topic by saying:

"It doesn't mean, of course, if you reject the computer scenario that my learned friend put up, that, well, that therefore means that Mr Cupid is guilty. I'm not saying that to you_._ I'm just putting to you, this is a matter the defence have raised and I put to you that, when you analyse it, it comes to nothing." (Emphasis added.)

Defence counsel said, in effect, that the computer scenario was not important. His client did not know why the complainant had accused him and the jury should not fall into the trap of thinking that he had to establish a motive for her doing so. The judge was not asked to give a direction to reinforce what the prosecutor had said in the italicised part of the passage that I have just set out. I would not uphold ground 3 if the matter rested there.

84. Of greater concern, in the context of this trial, was the way in which the prosecutor dealt with the complainant's evidence in his final address. He concluded by saying:

"It was suggested to her that she was lying about all this, and [the complainant] said, `Why would I tell the police it happened if it didn't happen? I wouldn't want to get him into trouble for nothing.' You saw her say that. You might have thought when she said that she was an honest witness, and you may think that was her protesting, as well as she could, and saying, `Look, I'm not lying about all this. This happened. I'm telling the truth.'" (Emphasis added.)

88. That compressed the complainant's evidence, with a tendency to emphasize her having asked, in effect, "Why would I lie?" Her evidence had been as follows:

"Again, can I suggest to you that one reason for the confusion is that none of this happened?---It did happen. Why would I tell the police something that didn't happen? I wouldn't want to get into trouble. I put to you that if it happened you wouldn't be as confused as you are about these things, when they happened, what actually happened?---But I know it happened, and I wouldn't want to get him into trouble for something he didn't do. And I know he did do it." (Emphasis added.)

No objection was taken to those answers, for example on the ground that they were in part non-responsive[12], and no exception was taken to the charge.

93. In Palmer v. R. and other cases it has been explained that to ask an accused person why the complainant would lie, or to ask that question rhetorically of a jury, is objectionable because (a) it invites the jury to speculate, (b) it is unfair to the accused, who is not in a position to see into the mind of the complainant, (c) it may undermine the onus of proof and (d) the fact that the accused cannot suggest a motive is generally irrelevant.[13] The position can be no better if the complainant herself says, "Why would I lie?" or words to that effect in the presence of the jury and they are forcefully reminded of that in the course of the prosecutor's final address.

96. The question remains whether there was a realistic prospect of a miscarriage of justice in the circumstances of this case.[14] In my opinion, there was. The complainant's motive to accuse the applicant had assumed more than the usual importance by the end of the trial. The cross-examination had provoked her into asking why she would have given a false account to the police. The prosecutor had understood the defence to have suggested a motive. Defence counsel had referred to motive in his final address. In summarizing counsel's addresses the judge had included the following:

"[The prosecutor] says that she loved going to the house. Why therefore would she make a complaint that would prevent her from ever going there again? The computer matter, says [the prosecutor], is of no significance because the accused man told her he was not going to tell her parents."

I agree with Mr McArdle that the whole of that passage related to the part of counsel's address that dealt with the computer incident, but it had the effect of raising the question "Why would she lie?" again.

101. His Honour had earlier directed the jury that the applicant was not required to prove his innocence or anything else "and certainly not required to prove a motive for what is said to be a false charge", but I do not consider that that was sufficient to overcome the objections summarized in [28] above. It may have been sufficient to avoid any undermining of the burden of proof, but the jury also needed to be told that they should not speculate as to the complainant's motive, if any, to accuse the applicant and that, in addition to the law not requiring him to suggest or establish a motive, it was unfair to expect him to do so. (If that was done, it was probably unnecessary to add that his inability to do so was irrelevant.) Those directions were necessary in this case because of the forensic power of what the complainant had said in cross-examination, of which the jury were then reminded with emphasis in the prosecutor's final address.[15] It matters not, against the background of this trial, that the prosecutor said only that her response was the kind of protest that might be expected of an honest witness and that he did not intend to invite the jury to engage in what has been held to be an impermissible chain of reasoning.

104. I would accordingly quash the convictions sustained by the applicant and direct a new trial to be had. I turn to issues raised by the other grounds of appeal that may impinge upon the new trial.

107. Evidence was received that the applicant had tickled Jessica and the complainant on many occasions. His wife had told him that they were getting to an age where people might think that that was inappropriate and the applicant said that he had followed that advice in relation to the complainant. It was for that reason he was sure that he had not tickled her in December 2000.

110. The following exchange took place in the course of his cross-examination:

"Your daughter says you did tickle [the complainant] on the last day she was there?---I didn't. Sorry?---I did not tickle [the complainant]. Well your daughter has given evidence that you did, do you think your daughter is lying about that?---No, I don't think my daughter is lying, I think, my daughter may be mistaken, I certainly tickled my daughter on that last day. You tickled your daughter?---I most definitely did, yes. But your wife said not to tickle either of them?--Yes, I know and I'd already had discussions with my wife about tickling my own children. So what, you got permission to tickle your daughter but [the complainant] was still not to be tickled?---Yes, steer clear of other kids, yes. M'mm?---Steer clear of other kids, don't tickle anyone else, yes. So you've got a specific memory of tickling [the complainant] on that last - your daughter on that last day but not [the complainant]? ---That's right. Well, again I ask for your comment about the fact that your daughter says on the last day you tickled [the complainant], what do you say about that?---I say my daughter is mistaken." (Emphasis added.)

114. Questions may arise at the new trial regarding the evidence about tickling. One question is whether such evidence, if otherwise admissible, should be excluded. Different considerations apply to Jessica's and the complainant's evidence of tickling[16] and evidence, including admissions in the record of interview, that the applicant had tickled the complainant when she was younger. The former is admissible as part of what allegedly happened. The latter may assist the defence. When the applicant was interviewed by the police, he frankly admitted that he had tickled the complainant "hundreds of days over the years" but that his wife had advised him to stop. In his final address defence counsel argued that that evinced the very opposite of a consciousness of guilt.

117. Another question that may arise is whether a propensity warning is required if any evidence of tickling is admitted. Mr Gillespie-Jones argued that the judge was obliged to warn the jury not to reason that, because the applicant had tickled the complainant or other children, he was the kind of person who was likely to have committed the offences charged. Subject to one suggestion in the prosecutor's final address, I do not think the evidence of tickling was led or used at this trial in such a way as to require that kind of warning and defence counsel may have had a good reason for not wanting the thought of propensity to be planted in the jury's minds. The qualification is that, in his final address, the prosecutor did at one point refer to the evidence that the applicant was "still tickling" the complainant and asked rhetorical questions suggestive of guilty passion. Tickling young children is not, in itself, discreditable conduct. It depends on the circumstances. Whether it requires a warning depends on the way in which the evidence is used.

120. Something should also be said about the italicized passages in the exchange set out in [33] above, especially the first of those passages. The applicant should not have been asked whether he thought that his daughter was lying. That went beyond putting the substance of her evidence to him or reminding him of what she had said and asking him whether he adhered to his testimony. It was not justified by the course of the evidence or the facts of the case. It is unnecessary, for the purposes of

the present case, to examine any further the issues raised by R. v. Foley[17] or whether the statement of Lord Esher, M.R. in North Australian Territory Co. v. Goldsborough Mort & Co.[18] is too wide.

124. Another ground of appeal related to s.400 of the Crimes Act 1958 in relation to the evidence of Jessica and Kenny. If the Crown seeks to lead their evidence at the new trial and it is not excluded on other grounds, the judge should take care that each child understands his or her right to apply for an exemption pursuant to that section and the basis on which such an application may be made. That is not to say that complicated language should be used or that the judge erred in the present case. It would be advantageous, if a lawyer or trained welfare officer is available, for the position to be explained to the child before he or she gives evidence in the absence of the jury.

129. I have had the advantage of reading the draft reasons prepared by Callaway, J.A. I agree with his Honour that the failure of the trial judge to direct the jury that they were not to speculate as to the complainant's motive to accuse the applicant and that it was unfair to expect the applicant to establish such a motive constituted a miscarriage of justice requiring a re-trial.

132. While posing the question "Why would the complainant lie?" in cross-examination of the accused is unfair in that it invites him to speculate as to the complainant's motive, in my view raising the question in other contexts than cross-examination of the accused is also unfair if the effect of the question is to invite the jury itself to speculate as to the complainant's motive and, in the absence of any cogent motive advanced by the defence, to conclude on that ground that the complainant is truthful.

135. 40 The question may in fact weigh with the jury without being articulated in the course of a trial.[19] If, however, it has become explicit and has assumed such significance that there is a real danger it may cause the jury to reason that, in the absence of the accused establishing a motive to lie, the complainant is to be treated as a truthful witness, that effect should be countered by the trial judge. Otherwise the case may be decided by speculation concerning unproven facts, not on the evidence led in the trial[20], and the onus of proof resting on the Crown may be reversed, or at least diminished by the suggestion that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant's evidence. In fact the complainant's evidence should gain no credibility from the absence of evidence of motive to lie.[21]

138. If the complainant's rhetorical question had not been taken up by the prosecutor in his address to the jury, the fact that the complainant articulated the question may not have had any bearing on the jury's consideration of the guilt or innocence of the applicant. The matter, however, did not rest with the complainant's evidence. The prosecutor repeated the question, as did the trial judge in the course of his charge to the jury. In the context of a trial which was essentially dependent upon credibility and where a particular motive on the part of the complainant to lie had been advanced and debated[22], I consider that those circumstances called for a firm and clear direction from the trial judge to prevent a miscarriage of justice. Even if the question of motive occupied little time during the trial, it may well have had striking force in the minds of the jury.

[1] [1998] HCA 2; (1998) 193 C.L.R. 1.

[2] [1999] VSCA 194; [1999] 3 V.R. 567. It seems the same view has been taken in New South Wales, although before Palmer was decided: see R. v. E. (1996) 39 N.S.W.L.R. 450 and R. v. Jovanovic (1997) 42 N.S.W.L.R. 520. The matter appears to have been raised also in this State in R. v. Alexander Robert Brown [2000] VSCA 102 at [19], but, although that was the principal basis upon which an application for special leave to the High Court was sought, the High Court rejected the application but in terms wherein Kirby, J., speaking on behalf of himself and Callinan, J., observed that the principle in Palmer "applies to the prosecutor's address to the jury. Ordinarily, the prosecutor should not ask the jury to speculate upon such motives": see Brown v. The Queen (22 June 2001) transcript at p.4.

[3] See R. v. Leak [1969] S.A.S.R. 172 at 173, approved in the dissenting judgment of McHugh, J. in Palmer at 25-26 para.61.

[5] [1998] VSCA 143 at para.[24].

[6] Two members of the Court in P.L.K., Charles, J.A. at 574-575 and the dissenting member of the Court, Tadgell, J.A., who had given a more detailed exposition why the passage in Hilsley at para.[10] was wrong, technically did not form a majority (as the headnote suggests), as the other member of the majority in the decision, Buchanan, J.A. did not express an opinion on this particular subject.

[7] See per Charles, J.A. at 573 para.[19] referring to R. v. Costin [1998] 3 V.R. 659 at 668.

[8] There was, however, the unfortunate question about the applicant's daughter's motive to lie. It may well have raised a question in the minds of the jury as to why any of the prosecution witnesses would lie, as was contended under ground 4.

[9] There had been earlier a reference to the supposed criticism of use of the computer which counsel said had "come to nothing", and there was a suggestion that she ought to have shouted out to her friend, the applicant's daughter, if she had been attacked in the way she alleged.

[10] The judge's attention was not drawn to the fact that the applicant stood to be sentenced as a serious sexual offender on counts 3, 4 and 5. To achieve his Honour's purpose, a direction should have been given that the sentences imposed on counts 4 and 5 were to be served concurrently with the sentence imposed on count 3: see s.6E of the Sentencing Act 1991.

[11] The reference is to Palmer v. R. [1998] HCA 2; (1998) 193 C.L.R. 1.

[12] Compare Palmer v. R. at 36 [95]-[96].

[13] See, for example, Palmer v. R. passim, but especially at 7 [7]-[10], 11 [13], 36 [95]-[96], 39 [98], 40 [99] point 3 and 42 [102]-[103]; R. v. PLK [1999] VSCA 194; [1999] 3 V.R. 567 especially at 572 [12]-[14], 573 [19], 574 [26]-[27] and 581 [59]-[62] and R. v. Heuston [2003] NSWCCA 172; (2003) 140 A.Crim.R. 422 at 433 [53]- [55]. The cases show, among other things, that whether a warning is necessary or appellate intervention is warranted depends on the circumstances and that failure to take exception is relevant but not conclusive. To the overseas authorities referred to by Kirby, J. in Palmer v. R. at 36 [96] must now be added R. v. T [1998] 2 N.Z.L.R. 257 and R. v. B [2003] 1 W.L.R. 2809.

[14] Palmer v. R. at 11 [13] and 44 [104]-[106]; R. v. O'Neill [2003] VSCA 204; (2003) 7 V.R. 408 at 412 [20]- [26], but especially at 413 [24] and 414 [26].

[15] In reaching that conclusion I have not overlooked the observations of Pincus, J.A. in R. v. Taylor [2000] QCA 96 and Murray, J. in Crisafio v. R. [2003] WASCA 104; (2003) 141 A.Crim.R. 98. I say no more about those cases, because they were not the subject of submissions.

[16] The complainant also said that the applicant tickled her when she stayed at his house in December.

[17] [2000] 1 Qd R. 290 at 296-297. See also R. v. Perussich [2001] QCA 557; R. v. H [2001] QCA 563; R. v. Dunster [2002] QCA 475; Palmer v. R. at 9 [10] and R. v. Leak [1969] S.A.S.R. 172 at 173-174, referred to by McHugh, J. in Palmer v. R. at 25 [61].

[18] [1893] 2 Ch. 381 at 385-386.

[19] R. v. F (1995) 83 A.Crim.R. 502 at 511-2 per Gleeson, C.J.; Palmer v. R. [1998] HCA 2; (1998) 193 C.L.R. 1 at 39 per Kirby, J.

[20] R. v. E (1996) 39 N.S.W.L.R. 450 at 464 per Sperling, J.

[21] Palmer v. R. at 9 per Brennan, C.J., Gaudron and Gummow, JJ.

[22] It appears that the trial judge did not direct the jury that, even if they were to reject the motive to lie constituted by a grievance arising from the computer incident, that would not mean that the complainant was necessarily telling the truth. See Palmer v. R. at 38-9 per Kirby, J.