R v G [1993] QCA 267

"... poles apart. They cannot possibly be explained away by mistake. One side is untruthful. One side is lies. In your fact-finding task, difficult as it may be, you have to face that head on."

It should be added that the judge did not make the jury's assigned task of choosing between the two versions any easier by the strong and inflammatory language with which he committed this aspect to their attention.

The effect of the judge's direction in this respect was to induce the jury to choose between the two versions and bring in their verdict in accordance with that choice. He did not, in presenting them with that choice, draw to their attention the fact that their task was to decide whether, on a consideration of all of the evidence, they were satisfied beyond reasonable doubt that the prosecution case was true, whether or not they were persuaded by the defence evidence. In short, there was the further possibility that on the whole of the evidence they may have been left in doubt.

A second ground of objection to the summing-up also has substance.

At some length, and with considerable emphasis, the judge invited the jury to consider whether the acceptability of the complainant's evidence was not buttressed by the fact that he had persisted in his allegations through the various stages of investigation and legal process up to trial. In the course of putting this reasoning to the jury the trial judge said:

"What is involved in going to the police; making the allegations; the statement to the police for the lower court; the lower court proceedings and then the ultimate about eleven months later when he was not living with his father and still he has persisted with this allegation and come into court with formal robed bewigged lawyers confronting him and twelve adult total strangers to whom he must talk about the most sensitive and unpleasant of matters against his own dad."

When this passage is read in context it appears that it presents a chain of reasoning in which the jury is asked to assess the credibility of this particular complainant not on the impression he created upon them but upon the basis that the credibility of child complainants in general can be regarded as strengthened by the fact they have persevered in their allegations and given evidence. It is wrong to convey to a jury that prosecution allegations can in general be more confidently accepted because they are made and persisted in for this would simply distract the jury from their task of deciding on the evidence before them in accordance with the prosecution's usual onus. This approach would offer a boost to the prosecution case in a way which is not consistent either with the burden of proof lying upon it or with the approach which a jury should adopt in considering whether the evidence in the particular case satisfies them.

In addition to this objection there is substance in the further objection by counsel for the appellant that it was wrong for the jury to be induced to consider that the complainant child necessarily regarded himself as having a free, unpressured choice at all stages of the process following the making of his first complaint and the judge's words invited this construction of events. Perhaps the child may have found himself to a degree swept along by the processes which stemmed from the making of his complaint but this possibility was not mentioned to the jury.

I am of the view that because of the matters which have been mentioned, the summing-up considered as a whole must be regarded as defective. I agree with the reasons which have been stated by Pincus J.A. for rejecting the appellant's further argument that the verdict was unsafe. While I am of the view that the conviction should be quashed, I think there should be an order for a new trial.

I have had the advantage of reading in draft the reasons for judgment of Pincus J.A. I agree with him that the appeal should be allowed and that there should be a new trial because of misdirection by the learned trial judge. I also agree that the verdict is not otherwise unsafe.

Although the learned trial judge said more than once that an accused person does not have to prove anything, and correctly directed the jury that the burden of proof was on the Crown beyond reasonable doubt, he nevertheless at one part of his summing up presented the matter to the jury as a decision which they were required to make between two alternatives: either the complainant was lying or the accused was. In a passage which preceded the two passages referred to by Pincus J.A., his Honour said:

"In this particular case the versions you have heard are poles apart. They cannot possibly be explained by mistake. You can't possibly confuse sodomy with a little boy occurring and nothing happening at all. You can't possibly confuse masturbating a little boy, having him masturbate you on the one hand and nothing happening in the contrary version. They are poles apart. They cannot possibly be explained away by mistake. One side is untruthful. One side is lies."

Then, following the passages referred to by Pincus J.A. and some directions on other matters, his Honour said, speaking of the complainant's evidence:

"You will also take into account the evidence here and any differences, any inconsistencies, can they be explained away by mistake or stress, or are they explained away because the complainant is unreliable or because he is a liar; because he is a wicked malicious person who for some reason or other, or for no reason at all, has decided to make an allegation of one of the most serious offences on the criminal calendar against his own father?"

Those passages could have led the jury to think that, unless they were satisfied that the complainant was a liar, they should convict. The learned trial judge did not, in either context, indicate that there was a third possibility; that they could not be satisfied beyond reasonable doubt that the complainant's story was true. His failure to present this third possibility to the jury in the context of either of these passages amounted, in my view, to a misdirection.

I agree that the passages quoted by Pincus J.A. also amount to a misdirection for the reason which he gives.

The appellant was convicted of two counts, one of maintaining a sexual relationship with a child under 16 years who was his lineal descendant, including sodomy of a child under 12, and the other of having unlawful anal intercourse with a child under 12 who was his lineal descendant. The allegation against the appellant was that he sodomised and engaged in other sexual activities with his son, then aged 7 or 8 years.

The evidence called by the prosecution was principally that of the complainant son, and it included some inconsistencies, particularly as to the number of occasions on which the appellant sexually abused his son. There was also evidence from the complainant's mother with respect to the appellant's opportunities to perform the acts in question, and from a doctor who said in effect that the condition of the boy's anus was such as to be consistent with penile penetration - or at least penetration by a foreign object of substantial diameter.

The appellant gave evidence denying the allegations against him. He also said that one Miller, with whom the appellant lived at material times, spent the whole of the evenings on which the offences were alleged to have occurred with the appellant and his son; but Miller's evidence did not go so far and was to the effect that on those evenings he left the two alone together at times.

There was no suggestion that the boy's allegations were a consequence of any dispute, for example concerning access, between his father and his mother. In essence, the case was simply one of word against word - the son against the father. As to the doctor's evidence, the judge directed the jury, rightly in my opinion, that the evidence of interference with the boy's anus did not implicate the appellant, and was therefore not corroborative of the charges against him.

Mr Herbert QC, for the appellant, complained of deficiencies in the summing up and also argued that the verdict was unsafe.

Speaking generally, and although there was much in the summing-up which would have given the defence no concern, the reader of it is left with the impression that the judge regarded the allegations against the appellant as having substance; the directions on the facts tended to favour the Crown. It appears that the judge must have been favourably impressed by the complainant's evidence, but not by the appellant's. The principal ground of attack on the summing-up was not that, however, but rather that the judge left the jury with the impression that the son's having made and persisted in the allegations was in itself a reason to accept them as true.

Lines of reasoning which are factually correct are not always legally acceptable, and a manifestation of that is the rule that there is no presumption of guilt in our criminal law, except in so far as presumptions as to particular issues are created by statute. The fact that an accusation of commission of an offence is made is not treated as creating any likelihood that the accusation is true. Figures may show that the vast majority of charges brought result in conviction, principally by pleas of guilty, and one might reasonably infer that most accused persons are in truth guilty of the offence charged. But the statistical probability cannot be allowed, as to any individual accused person, to create a presumption of guilt; that would be unjust. For such reasons, judges cannot tell the jury that, as to any particular type of offence or type of complainant, the probabilities favour a conviction.

The passage in the summing-up which gives most reason for concern begins with the question :

"You have heard submissions on why would the complainant make this up against his own father and put himself through this?"

There follow a number of remarks tending rather to support the Crown case, and then :

"Do those matters appeal to your commonsense or do you not place much weight on that at all? What is involved in going to the police; making the allegations; the statement to the police for the lower court; the lower Court proceedings and then the ultimate about 11 months later when he was not living with his father and still he has persisted with this allegation and come into Court with formal robed bewigged lawyers confronting him and 12 adult total strangers to whom he must talk about the most sensitive and unpleasant of matters against his own dad. Some children you might think can be pretty bold and brazen and take it in their stride. Other children you might think would be scared out of their minds and clam up and you wouldn't get boo out of them. Although the accused doesn't have to prove or disprove anything, why has the child chosen to make this allegation and stick to it? Come into this Court and put himself through this, making these most serious allegations against his own father. You saw him, members of the jury, and you had a very good opportunity to assess him. You saw him tested in cross-examination as seen fit."

It may be that the passage I have quoted was in substance merely a reproduction of or elaboration of part of the prosecutor's address and it is true that at another part of the summing-up the judge mentioned, in a way of which no complaint is made, submissions made for the defence. But in my view the passage above must be considered as a direction by the judge that the argument there presented was one which might properly be accepted.

The passage is unexceptionable insofar as it merely invites the jury to consider the complainant's character and personality, with a view to assessing whether or not he was the type of boy capable of inventing and persisting in a false accusation of serious misconduct against his father. If the boy appeared to the jury to be very unlikely to have done that, then that could legitimately be taken into account in weighing the competing stories. But it is one thing to invite the jury to think about the likelihood that the particular complainant would have invented and persisted in a false story and another to state or imply the proposition: "The accused may well be guilty, because it is unlikely that any child would in a case of this kind be prepared to go through the ordeal of giving evidence if such a story were false." I think that notion may well have been conveyed. The vice of the argument is its generality: if it is valid it is capable of being applied against any person accused of sexual misconduct by a young child. An analogy may be found in the principle applied in Robinson v. The Queen (No. 2) [1991] HCA 38; (1991) 65 A.L.J.R. 644. That case concerned the propriety of a direction that "the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely". The Court described the judge's directions as having -

"...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...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."

I refer also to the reasons given by three members of the High Court when refusing special leave in Stafford (unreported, 4 March 1993); there, the principle of Robinson was somewhat extended, but it is unnecessary to discuss that for present purposes.

To tell a jury that an accused person who gives evidence in his own favour has a strong interest in the outcome of the case and therefore a strong motive to lie may well appeal to a jury's commonsense; further, it will often be true. But a judge cannot so direct the jury because, particularly where the case is one depending on "the jury's preference for the evidence of the complainant against that of the accused" (Robinson at 645), that would tend to reverse the onus of proof. The direction presently under consideration is open to the same objection. Further, for a judge to give a direction implying that, ordinarily, a young complainant in a sexual abuse case is unlikely to invent and adhere to the allegations is difficult to reconcile with the direction (which the learned trial judge gave) that it is dangerous to act on such a complainant's uncorroborated evidence.

As I have mentioned, although in total its drift was in the other direction, much of the content of the summing-up tended to favour the defence; it included proper and repeated directions as to the onus of proof. Despite that, in my opinion, the passage I have quoted included an erroneous direction which may have influenced the verdict. There must be a new trial.

It is convenient to consider this ground of appeal, despite the conclusion reached with respect to the summing-up.

The complainant's version of events was before the jury in two forms; firstly, there was an interview with police recorded on video, which was tendered under s. 93A of the Evidence Act 1977, inserted by s. 64 of Act No. 17 of 1989. Then, the complainant gave evidence before the jury and was cross-examined. During the interview with the police, the complainant said of his father that he "has stuck his penis up my bottom and he's made me play with him and he's played with me". It appears that the boy, at the request of the police, demonstrated the latter activity using dolls. In response to further questions, the complainant gave answers in respect of an act of sodomy and there was also mention of touching on private parts. There then occurred the following questions and answers :

Okay. When else did it happen?-- Every time though when I went over there.

How many times have you been over there?-- I'm not sure.

CONST COLE: Is it more than 20 or less than 20?-- It was more than 20.

SNR CONST BOWES: More than 20. How many more than 20?-- I'm not sure."

Reading this passage in context, one would perhaps think that the question as to frequency related to sodomy rather than any other sexual activity, but it is not absolutely clear what "it" in the first question referred to. In a later answer the complainant gave evidence to the effect that about "14 more times" the appellant made the complainant "touch" him, which seems to have meant, touch his penis. The next question and answer are recorded as :

Accepting that the transcript accurately records what was said, it was a question for the jury whether that discrepancy was such as to make the complainant unworthy of credit.

When he gave evidence before the jury, the complainant said of the appellant that he "put his doodle up my bum", and on further questioning said the appellant did it once every night and on two nights altogether. He also said, in cross-examination, that the appellant touched his "dick" around 13 times and about the same number of times asked the complainant to touch his "dick".

It seems fairly common for young complainants, speaking of sexual abuse, to give inconsistent or confusing accounts; more generally, ordinary experience of young children suggests that some have difficulty attributing numbers and dates to events and getting sequences right. But in my opinion, a Court should be slow to hold that discrepancies of the character found in the present case are such as to make a verdict against the accused unsafe. One disadvantage of so holding is that abused children of less than average intelligence, or at least less than average ability to recount details of the abuse, may be made especially vulnerable. It is a legitimate argument for the defence to make that discrepancies of the sort illustrated here make the whole tale suspect, but it is a matter for the jury, some at least of which may be expected to have experience of the intellectual abilities of children in various ages, to assess how much damage is done to the Crown case by such discrepancies.

It is my opinion that the appellant's argument that the verdict was unsafe should be rejected.

However, because of the judge's treatment of the question of the likelihood of a young complainant making up and persisting in a false story of sexual abuse, the appeal must be allowed and the verdict quashed; there should, in my view, be a new trial.