R v Hilsley [1998] VSCA 143

Court of Appeal (Vic)|1998-12-17|Before: PHILLIPS, C.J., ORMISTON & BATT, JJ.A.

The applicant in his evidence denied any sexual assault on SMH, whether by the alleged digital penetration or otherwise. He agreed that she had been present that afternoon and that he had suggested that she might have worms, in that he had seen her scratch her bottom and she had toilet paper hanging out of her jeans. Likewise he had suggested that she should have a shower and that the shower curtain had fallen which he had fixed. Although he had spoken to GED, he had told her only that SMH should have a shower because the toilet paper had been hanging out.

The applicant was convicted of the one count relating to SMH. There were five grounds to the original application but two new grounds were added by leave of the Registrar. The first asserted that a miscarriage of justice resulted from:

The second added ground complained that a miscarriage of justice had resulted from: (1) the prosecutor's cross-examination of the applicant as to his knowledge of motives for the complainant and GED to lie; (2) the judge's summing up leaving to the jury a prosecution argument which invited the jury to speculate as to why the complainant might lie, an argument which tended to cast on the applicant the onus of refuting such a motive; and (3) the judge's failure to direct the jury that there was no such onus, and that, even if the jury were to reject any suggested motives, it would not mean the complainant and GED were necessarily telling the truth and that the Crown should satisfy the jury that the complainant and GED were telling the truth. The specific passages of evidence relied upon will be referred to in the course of dealing with each of these grounds.

Ground 1 - Evidence of sexual misconduct with other girls

The evidence here relied upon was a series of non-responsive answers or comments in the course of the cross-examination of the complainant and GED which suggested that the applicant had been party to misbehaviour of one kind or another with other young girls. Again it should be noted that these were, at best, mere allegations.

In the first place, in the course of cross-examination of SMH which perhaps had gone on a little longer than was called for (counsel again being other than counsel who appeared on these applications), the complainant, exhibiting some irritation, asserted:

"I am the one he did it to; you're not the one he did it to, neither is anyone else. He's done it to several other girls too."

A minute or so later another non-responsive answer included the following:

"I'll be happy if he went to gaol, so would other girls who he did it to."

Then again, after several pages of argumentative answers, came a further non-responsive answer:

"I know there was more other girls because Melissa and that kept on going there. Melissa told dad that Mick was ... making her jump [? up] and down."

At this stage it should be noted that the judge immediately intervened by saying to the jury that the witness had mentioned other girls on three occasions, continuing:

"As far as you are concerned members of the jury, let me make this absolutely clear. The Crown in this case makes no suggestion of any other girls. Those comments are quite irrelevant and are to be disregarded by you."

Next, some time later during the cross-examination of GED, counsel asked what the witness thought the applicant had been telling her. She responded:

"How do I know? It's like those girls that were in his flat all the time. He had girls in there. You're just concentrating on [SMH]."

The following morning in the absence of the jury, counsel applied for a discharge of the jury on the ground that the comments had given rise to incurable prejudice. The learned judge rejected the application, observing that although the remarks made were "certainly unfortunate", he was "not persuaded in the context of the whole of her behaviour and the whole of her evidence that they make it necessary for me to discharge the jury." He said the jury could be relied upon to do as it was told, although it should be noticed that the judge had made no direct comment to the jury about the remarks made by the witness GED. The jury might have been expected to take the same approach to her comments, but no warning was in fact given.

Apparently counsel at that stage did not have a copy of the transcript of the remarks made by GED so that he renewed his application the following day on the same basis but by reference also to that witness's comments. It was also rejected, but at this stage counsel, faced with dilemma that the evidence had been given, appeared to agree with the learned judge that perhaps it would be preferable to leave the matter and not come back to it in the course of his charge. In consequence there was no comment about these events in the course of the judge's charge to the jury.

Whether it be necessary to show that there was a high degree of need for discharging the jury or whether one merely asks whether the jury would have returned the same verdict had the evidence not been given, I am of opinion that in this case, having regard to the nature of the evidence, the comments of the witnesses were so prejudicial as to require the verdict to be set aside. This trial was somewhat different from the other trials and the effect of this evidence may well have been seen as significant by the jury having regard to the limited nature of the allegations made. There was but one charge which arose out of an arranged visit to the applicant's house. Although there had been some evidence that the applicant liked girls, that may have been neutral in the context of a trial where the evidence showed that the applicant had been asked by the complainant's father to look after her. Moreover, it was an unusual case in that there was a limited degree of corroboration by GED but that corroboration was capable of being explained away if the applicant could be considered as merely taking a genuine interest in the complainant's welfare, so that the complainant might have been seen as a malicious troublemaker. However, the various comments made by her pointed to a pattern of behaviour of a quite different kind, if those comments were accepted as genuine and spontaneous. Moreover, GED's comments might have been treated as neutral but for the fact that they tended to confirm what had already been said about other girls by the complainant. It was a particularly damaging comment having regard to the fact that she was an older woman who could not be said to have been in any way involved or likely to be involved in making up stories against the applicant.

There seems no doubt that the non-responsive answers of the witness SMH and GED were inadmissible. Each referred to "other girls" and each suggested behaviour by a 55 year old man towards girls which would in one way or the other have been both improper and illegal, having regard to their assumed age. It was argued that the comments of GED were entirely equivocal. If there had been no other comments and if the trial had related also to other similar charges, then the comment may have amounted to little. In the present case it was pregnant with meaning, the older woman as witness attempting to defend her answers in cross-examination by suggesting that she could not have been mistaken as to the behaviour of the applicant towards the young complainant. This ground is, in my opinion, made out.

Ground 2 - Contention that witnesses had no motive to lie

The claimed miscarriage of justice is here said to arise from a combination of events which were intended to raise in the jury's mind an issue as to what motive the complainant and the witness GED would have to lie about the alleged act of sexual penetration by the applicant. The miscarriage arose, so it was claimed, in three ways:

(1) From the prosecutor's cross-examination of the applicant as to his knowledge of any motives which the complainant and GED might have to lie about their allegations against the applicant;

(2) From the prosecuting counsel's argument in his final address supporting those witnesses' credibility, by asserting their absence of motive to lie;

(3) From the learned judge's repetition in his charge of a summary of the prosecutor's final address raising the same argument but without giving any warning as to the dangers of using any such argument to bolster or give undue weight to the credibility of the complainant or GED.

One may accept, at least since the judgment of the High Court in Palmer v. The Queen [1998] HCA 2; (1998) 72 A.L.J.R. 254, that it is ordinarily irrelevant in a criminal trial, especially of this kind, that the accused has no knowledge of any reason why a complainant should make up the allegations. As was said by the majority in Palmer (Brennan, C.J., Gaudron and Gummow, JJ.) at 257 (para.7):

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant."

As the majority in the High Court also considered, it is the complainant only who knows of an absence of motive to lie, whatever specific matters may be raised from which a motive to lie may be inferred. It is thus not irrelevant to examine possible specific motives or events likely to give rise to motives, but it would seem that a bare question, unsupported by specific evidence, as to another's absence of any motive to lie is irrelevant, as it is, ex hypothesi, outside the accused's knowledge. For myself, however, there seems much substance in the matters raised in the dissenting judgment of McHugh, J. and in the qualified acceptance of the rule by Kirby, J. A question not based on any specific allegation may ordinarily be seen as incapable of proving anything and arguably capable of being misunderstood, but the issue of want of motive rarely arises on its own inasmuch as counsel for the accused will frequently have instructions which are used as a means of throwing doubt on the complainant's account. As has been recognised (cf. R. v. Uhrig, Court of Criminal Appeal (N.S.W.), 24 November 1996, unreported at 16-17, cited in Palmer at 258 para.10), the rebuttal or attempted rebuttal of possible motives put to a complainant frequently leaves unspoken a question which must occur in the minds of many jurors:

"Well, if we are satisfied that none of these motives to lie has been made out, what motive did the complainant have to make up this appalling story and put herself [or himself] through the ordeal she [or he] has just endured?"

Thus it has been held, and approved by the majority in Palmer (at 257-258), that the judge must give an appropriate warning by way of direction even if no direct question as to the absence of motive has been put, whenever there have been questions as to specific motives to lie which the jury are being asked to reject.

Apart from the conclusion that it is irrelevant and impermissible to ask the simple question about want of motive where there can be no circumstantial basis for it, these questions as to motive to lie are of the essence of vigorous criminal and common law trials; they are not matters which have escaped into the light of day because of the recent spate of sexual abuse trials. I would suggest, with great respect, that to add yet another direction to the catalogue of directions required in trials of this kind is likely to add further confusion and may well be lost among all other required directions on matters of evidence. Any observation as to want of motive can hardly prove a case if the jury is properly directed as to the use of inferences and the onus of proof. I would venture to say that questions as to whom the jury should believe or disbelieve are questions of fact ordinarily contested with vigour by counsel on each side, well capable of pointing out any weaknesses in the other side's case. Appellate courts sometimes have a tendency to forget that the critical stage for juries to assess the evidence as a whole is when counsel make their final addresses, leaving the necessarily colourless and anonymous judge to fill in the legalities and formalities in the course of the charge. In my judicial experience, extending over 15 years, the transcripts of final addresses are very rarely reproduced, certainly in this State, so that courts of appeal have been and are aware only in the broadest terms of how counsel on each side have put their factual arguments to the jury.

Nevertheless, whatever be the precise proper content of the rule, there would seem to be ordinarily little foundation in logic for allowing the bare question whether the accused can think of any reason why the complainant or any other witness would wish to lie about the charged acts. It is simply not relevant to ask a witness about the thinking processes of another person, especially the complainant. (This is not to say, however, that one cannot ask questions about a continuing relationship between complainant and accused or as to any changes which had occurred in that relationship.)

Here, one may conclude that most of the questions asked by the prosecutor were specific or sufficiently specific for it to be said that they could be treated as legitimately enquiring about the parties' relationship or as to matters which might throw doubt on the complainant's version of events. But at the end of the prosecutor's cross-examination of the accused, prosecuting counsel asked a series of questions designed to examine the complainant's and the witness's motives, or more accurately, want of motive, for making the allegations against the accused. So he asked at one stage:

"Can you think of any reason why [SMH] would make that up against you?"

This provoked an answer from the accused (likewise irrelevant) that he thought it was for money purposes. Then a few questions later he asked a similar question about the witness GED:

"Can you think of any reason why she would have said what she said about her conversation with you if it didn't happen?"

The cross-examination continued along not dissimilar lines, so that a few pages later on the transcript a virtually identical question was put to the accused about the witness GED. Finally, and not insignificantly, the question was repeated in the following form about the complainant's evidence:

"You can't think of any reason other than money why [SMH] would be saying what she is saying?"

In essence the latter question enquired whether, if the jury were to accept that there was no monetary or other motive and thus to exclude any such motives from their considerations, the applicant could put forward any reason for the making by the complainant of a false allegation. With his customary fairness, counsel for the Crown on this appeal (who was not counsel who had put the questions at the trial) conceded that the question went beyond a question as to any specific motive, by which he had sought to characterise the earlier questions put by the prosecutor at the trial. He agreed that he was not able to justify the question having regard to the rule laid down in Palmer. Of course virtually the same question, having the same connotation, had been put to the accused about the witness GED a few minutes earlier.

On that basis I would conclude that the questioning of the accused went beyond genuine enquiries as to the specific motives of either the complainant or the witness GED. The questions having been asked and no reason being proffered, (other than one which the jury was being invited to reject), the proscribed mode of reasoning was thus adopted as part of the prosecution case and was apparently made a cardinal point of counsel's address to the jury, and his argument was summarised and repeated, without qualification or criticism, by the trial judge in the course of his charge. In the absence of any directions to disregard those questions and to disregard any inferences resulting therefrom, I am compelled to conclude that there was a miscarriage of justice in the sense that the course of the trial in this respect contravened the reasoning formulated by the majority in Palmer's Case.

A second trial relating to counts 23, 24 and 25 charging various sexual offences relating to another girl had resulted in three verdicts of acquittal before the third trial commenced. The latter concerned seven counts arising out of complaints made by a 13 year old girl, LJC, extending from July or August 1995 to 14 February 1996 which resulted in convictions on all seven counts, albeit that two convictions were for alternative offences. Thus the applicant was convicted on two counts of committing an indecent act with LJC, a child under the age of 16 (counts 2 and 4); on two counts of taking part in an act of sexual penetration with LJC, a person between the ages of 10 and 16 (counts 10 and 12); one count of assault with intent to take part in an act of sexual penetration with LJC, a person aged between 10 and 16, as an alternative to the count of taking part in an act of penile penetration (count 13); on one count of indecent assault on LJC, as an alternative to the count of digital penetration of a child aged between 10 and 16 (count 19); and on one count of wilfully committing an indecent act in the presence of LJC, a child under the age of 16 (count 20).

The allegations here made spread over the period of the occurrence of the offences which were the subject of the other three trials, two witnesses being the subject of offences separately charged but not directly related to the seven counts tried on this occasion. (LJC was also a witness to one of the other charged events.) It should again be noted that the matters here summarised consist essentially of the allegations which should be treated as no more than such because, again for reasons to be discussed, they will have to be the subject of a new trial. Although there are a number of counts, the single ground relied on in this appeal, again asserting a wrongful contention by the prosecution of a want of any motive to lie, means that it will be necessary only to sketch the facts making up the basis of the allegations.

It seems that at about the time of the events constituting the first charge at this trial LJC had been wagging school nearly every day and spending her time with friends. One of those young friends, MLM, introduced her to the applicant when they went to his flat. At first they were paid $5 for merely pulling grey hairs out of his head. The next day they were offered scotch whisky. On one of these earlier visits the applicant asked if he could give LJC a massage which was conducted on a double bed in the spare bedroom. The complainant was told to take off her top and bra and lie on the bed on her stomach while the applicant rubbed cream, at first, on her back. However, he then put his fingers under her and rubbed her breasts, which was the event constituting count 2. LJC continued to visit the applicant's flat. In January 1996 it was alleged that a further indecent act took place, which constituted count 4. On this occasion the applicant asked LJC to give him a massage which again was carried out on the double bed. He asked LJC to massage his groin after taking off his shorts. She said she rubbed cream into that area of his body and at one stage spilt cream onto his penis. Although requested to rub it in LJC had merely wiped it off with a towel.

Some time in February, probably on about the 5th, LJC went to the applicant's flat after she and MLM had been swimming. She said that the applicant told her it was her turn for a back massage which again took place on the bed while she was dressed only in a towel. She said he had commenced by rubbing her legs but then moved up to a point where he started to touch her vagina, putting his fingers in on about three or four occasions, which were the events which constituted count 10.

A few days later, noted by LJC in her diary as 13 February 1996, she was again at the flat when according to her the applicant told her that he wanted to make her "ready" for CT, "a boyfriend" of LJC. She went into the bedroom for a back massage, again lying on her stomach while the applicant rubbed cream into her back and onto her breasts. She said that the applicant, having undone her jeans and pulled them below her knees, began to massage her vagina and again put his fingers in, which constituted count 12. The applicant, according to LJC, then started to rub his penis up and down her vagina but eventually she told him to stop. These were the events constituting count 13, but it is clear that the jury did not accept the whole of her version inasmuch as they brought in a verdict of assault with intent to take part in an act of sexual penetration.

The following day LJC again returned to the applicant's flat and said that he again asked her to massage him and then that he had massaged her. Again it was alleged (in count 19) that he touched her vagina and put his fingers into her vagina, but it seems that the jury did not accept that the assault ended in that way and therefore brought in a verdict on the lesser count of indecent assault.

Finally, in order to support count 20, LJC alleged that, after leaving the bedroom following the last assault, the applicant began to masturbate in her presence.

LJC also gave evidence that on the occasions when the massages took place he also gave her money, usually between $50 and $60, and that on other occasions she was given gifts of between $10 and $20 and some Avon products. The evidence of MLM and of another girl, MAC, served to confirm that there had been some form of assault on some occasions inasmuch as the applicant and LJC had been seen naked in the bedroom, but the evidence that they gave went no further. It seems that LJC made no complaint at the time but only made the allegations when the police were making their investigations.

The applicant in his evidence, although admitting that he had been introduced to LJC and that she had visited his flat on a number of occasions, denied each of the allegations. He admitted only that she had given him one back massage and that was while they were in the lounge room when he had also given her a massage. He had not given her gifts but had paid her for doing jobs around the house. She had also ordered Avon products through him.

The application for leave to appeal originally had six grounds but, upon application shortly before the hearing, a single additional ground of appeal was added, which was the only ground argued, to the following effect:

"A miscarriage of justice resulted from: (a) The prosecutor's cross-examination of the applicant as to his knowledge of motives for the complainant, and the witnesses [MAC] and [MLM] to lie ... (b) The trial judge's summing up in that his Honour left to the jury an argument which: (i) invited the jury to speculate as to why the complainant might lie; (ii) had a tendency to cast upon the applicant an onus of imputing to the complainant a motive to lie ... (c) The judge's failure to direct the jury to the effect: (i) that there was no onus on the applicant to establish motives for the complainant and other witnesses to lie; (ii) that, even if it were to reject any suggested motives, that would not mean that the complainant and the other witnesses were necessarily telling the truth; (iii) that it would remain for the Crown to satisfy it that the complainant and the other witnesses were telling the truth."

The specific passages of evidence relied upon will be referred to in the course of dealing with this ground.

Ground based on contention that witnesses had no motive to lie

Again the claimed miscarriage of justice is said to arise from a combination of events which were intended to raise in the jury's mind an issue as to what motives the complainant and the witnesses would have to lie about the various alleged acts charged against the applicant. The combination of events is very similar to those dealt with in relation to the first trial and it is unnecessary to repeat the matters of principle there referred to, except to the extent that the circumstances vary, if they vary at all to any significant extent.

The only difference in this trial was that there were put to the complainant by counsel for the applicant (who again was not counsel who appeared for him on this appeal) a number of specific motives which may have induced the complainant LJC to make this series of allegations. In short, those three motives may be identified in the following way from the cross-examination. First, it was put to her that in her statement the applicant had told her that he was going "to leave me stuff in his will when he dies", but that she later came to know, at a time not entirely made clear in the cross-examination, that he no longer intended to do so. Secondly, it was put to her that she knew what crimes compensation was, that she had seen a solicitor and that she wished to get money in this way, although it seems that she did not keep the appointment with the solicitor. Finally, she was cross-examined about her relationship with her boyfriend CT and the nature of her affections towards him. In due course she had discovered that her affections were not in fact reciprocated and it was suggested that in some way she blamed the applicant for all this. It seems most likely that this came about because the applicant was said to have encouraged her original belief by telling LJC of CT's affection. There was also some questioning of the complainant's mother as to the first two of these possible motives. On the other hand, and significantly, there was no relevant cross-examination of MLM and MAC as to their motives for giving evidence against the applicant.

In the course of cross-examination of the applicant by counsel for the Crown (who is likewise not counsel who appeared on this appeal) there were various questions put relating to the suggested motives of LJC and as to the relationship between the applicant and LJC. The applicant denied that there was "any bad blood" between him and LJC, which led to the following exchange:

"So you must be at a total loss then as to why [LJC] has made these allegations against you --- True. Because you could see nothing in your relationship --- We had no relationship. Friendship? --- We were just friends. Nothing in your friendship; you must be scratching your head then as to why someone who'd ... ? --- No, I don't have to scratch my head."

Then a short time later the applicant was cross-examined about the motives of the witnesses, as follows:

"In the time that you knew [MAC], did you ever have any falling out with [MAC]? --- Never. So there would be no reason for her to, that you could think of ... ? --- Never. In relation to [MLM], did you have a falling out with [MLM]? --- [MLM], yeah, that 'cos she told me too many lies and I had to kick her out. So you had a falling out with [MLM], did you --- Yes, 'cos she weren't telling her mother and father the truth. But nothing in relation to [MAC]? --- Nothing. Are you able to give any reason as to why [MAC] would come and give that evidence against you; are you able to think of a reason? --- No, I don't know what her reason was."

Again, the Court does not have available to it the addresses of counsel, but it is relatively easy to see what the principal contentions were. In fact the learned judge's summary of them extended over only two pages. It seems that counsel for the applicant, who of course followed the prosecutor, put considerable emphasis on the possible motives of the complainant, asserting that revenge was really her motive for the false story because of the applicant's unfortunate intervention in her relationship with CT. However, the learned judge commenced his summary by referring to the arguments on behalf of the Crown in these terms:

"In its essence they are really quite short. The Crown says that you should accept [LJC]. It says, why would she lie? Why would she invent? What motive would she have?"

The judge's charge proceeded then briefly, by way of summary only, to refer to the arguments put by the prosecution that the supposed motives of the complainant were of no consequence and that she would have had no reason to lie. There was in this summary no reference to the lack of motive of the two witnesses, nor to the questioning of the applicant about that topic. Finally, it should be noted that no warning and no directions were given as to how the jury might use the questions and answers and the arguments put to them about motive.

Again, the questions and answers and the subsequent conduct of the trial would appear to offend against the principle stated in Palmer. The questions have a similar connotation and the only difference is that more possible motives were put to the complainant in the course of cross-examination. That would not deny counsel a fair opportunity to deny those motives in the course of his address to the jury. However, any assumed conclusion that the jury may have reached that there was no such motive was raised in terms which required immediate correction and some firm direction to the jury in the course of his charge. Counsel did not take the point, unfortunately, and so the prosecutor considered himself free in his address to ask the proscribed rhetorical questions about want of motive; indeed, they would appear to have been one of the principal points in his address to the jury. The learned judge merely compounded that by repeating that argument, indeed perhaps emphasising it, but failed to make clear its irrelevance in the jury's deliberations. The questions about the two witnesses seem more starkly to offend the rule. Counsel did not advert to any reason why they should lie, inasmuch as none had been put forward. The questions were inadmissible.

In accordance with the principle stated in Palmer, which cannot fairly be distinguished, the course of the trial in these respects must have led to a miscarriage of justice. I am reluctant so to hold, but there was no other direct evidence as to motive, the jury may have drawn the wrong conclusions and the applicant lost the opportunity to be acquitted on the only admissible evidence. The ground is made out and the seven convictions should be set aside and retrials ordered, but, in the case of counts 13 and 19, on the lesser charges.

The fourth trial was not able to be heard in the Latrobe Valley and was transferred to Melbourne where it was conducted in March this year before a different judge. On this occasion the applicant faced eight counts. They related to incidents alleged by three girls, but were heard together because all three said that they were in the applicant's flat over the same night, when most of the events were said to have occurred, although the events constituting three counts were alleged to have occurred earlier. The essence of the three girls' allegations were that they visited the applicant's flat late on 13 February 1996 where they said he performed a number of acts with or upon two of them. The other counts related to events said to have occurred in the applicant's flat when two or more different groups of girls were present shortly before 13 February, these events constituting the allegations in counts 7, 8, 9 and 11. The events constituting the allegations in counts 14, 15, 16 and 18 are said all to have taken place on either the night of 13 February or early the following morning.

At the end of the trial the applicant was found guilty on only three of the counts, counts 9, 14 and 15 and sentenced to various terms of imprisonment which need not here be elaborated. So again it will be necessary to remember that much of what is set out below is mere allegation, the jury accepting that only three of the alleged events took place. It is impossible to avoid setting out the material relating to the other counts because it is said that the three guilty verdicts were unsafe and unsatisfactory by reason, essentially, of their inconsistency inasmuch as the jury appeared not to accept the credibility of the complainants on some counts but did on others.

The first in time of the alleged events were not accepted by the jury, so the applicant was acquitted on counts 7 and 8 which need only briefly be described. A 13-year-old girl, AMB, said she had also been to the applicant's flat up to two weeks before the events which she had already described as occurring on 13 February 1996. It seemed to form part of a pattern of her and the other girls' wagging school and on this occasion she went to the flat with another 13 year old, MLM, and another girl from her class, CJH. AMB alleged that both MLM and CJH had pinned her down while the applicant got on top of her and gave her a love bite on the right side of her neck. She was "pretty sure" that he tried to put his hand down her pants. This evidence was said to support count 7 in which it was alleged that the applicant had wilfully committed an indecent act with AMB and, in the alternative, constituting the charge in count 8, had assaulted AMB. Neither of the other two girls present gave evidence confirming the applicant's attempt to put his hand down AMB's pants, although CJH said that AMB had received a love bite on the neck which she characterised as "mucking around". There was no evidence from MLM confirming these events and the complainant agreed that she had not mentioned the applicant's attempt to put his hand down her pants when making her police statement, so it is not difficult to see why the jury returned not guilty verdicts on each of these counts 7 and 8.

The complainant MLM gave evidence about her going to the applicant's flat in early February with another school friend LJC. This had led to the events which constituted count 9 on the presentment, which alleged that the applicant took part in an act of sexual penetration with MLM in that he introduced his finger into her vagina, a count upon which the jury found the applicant guilty. MLM said that the applicant had asked her if he could massage her and then they had gone into a spare bedroom leaving LJC peeling potatoes in the kitchen. The applicant massaged her chest and put his finger in her vagina, at which stage LJC walked in and immediately went out again. The applicant and MLM then both got dressed and went outside. LJC also gave brief evidence confirming the fact that she had gone to the flat and had been peeling potatoes when MLM and the applicant went to the spare bedroom. When she had walked in she had seen MLM lying naked on her back in the middle of the double bed with the applicant sitting between her legs, with his clothes down and with his hands on the top part of MLM's thigh. She said she immediately went out of the bedroom as she did not like what she had seen.

On the other hand a further count of taking part in an act of sexual penetration of MLM two days later, count 11, was not supported by the complainant inasmuch as she said in her evidence-in-chief that she could not remember what happened and had become distressed on giving evidence on this subject. The learned judge properly directed the jury that there was no evidence upon which they might find him guilty of this count so that they returned a verdict accordingly.

The rest of the evidence at this trial related to four counts alleged to have occurred on 13 and 14 February 1996, namely counts 14, 15, 16 and 18. All the events charged occurred at the applicant's flat at which MLM, AMB and a third girl, MD, first arrived at about 11 or 12 o'clock at night. The reasons for their arrival are important and not largely in dispute. Both MLM and AMB were in the habit of missing school. On 13 February they had done so but MLM was afraid that she was likely to be caught out by her father so that she persuaded her good friend AMB to run away to Melbourne. They told the older girl MD, who was 15 and lived in a hostel run by the Department of Human & Community Services. Although none of them had any money and few clothes, MD encouraged them to leave their home town in case the police caught them. It seems it was MLM who suggested that they should first go to the applicant's flat in the hope, at least in the mind of MLM, that he would "give" them some money.

It was in those circumstances that the three girls arrived in the applicant's flat at some time about 11 o'clock or later that night. MLM claims that she immediately asked the applicant for money. She said the applicant took her into a bedroom and had then asked MD for a massage. According to MD, the applicant said he would give her $20 for a simple back massage. MLM then left the bedroom and joined AMB in the lounge room, which was in darkness, according to them, but MD in her evidence thought that the lights were on.

MD gave evidence of what the applicant and she did in the bedroom, which constituted the events alleged in counts 14 and 15, on both of which the applicant was found guilty. MD said that the applicant had asked her to take her clothes off and to lie on the bed, which she did. The applicant by then was undressed. She said that the applicant started by giving her a simple massage with baby oil. Then, as she said, "he started getting a bit carried away" and put his fingers in her vagina (count 14). She was shocked, but the applicant lifted her legs, putting them on his shoulders, and then inserted his penis into her vagina. She said he told her to make groaning noises, which she did, and after about 10 to 15 minutes he stopped (count 15). Both the applicant and MD, wearing only dressing gowns, went into the lounge room where they found MLM and AMB. Each of the latter were able to provide some confirmation of what had occurred but in slightly different ways. MLM had called MD into the bedroom but had left them, going to sit in the lounge room with AMB. However, she said she could hear through an open door what she described as "just heavy breathing". Then when they had come out of the bedroom later, they were both naked according to her. AMB confirmed that she saw MD go into a bedroom of the applicant. She said that, while seated with MLM in the darkened lounge room, she had heard noises which she thought was "breathing or ... sexual orgasm". Likewise according to her the applicant and MD were both naked when they came out, although MD had soon found a dressing gown to put on.

The next stage resulted in rather more dispute in evidence but constituted the events making up count 16, of which the applicant was acquitted. MD said that the applicant had asked her to return to the bedroom to give him a massage. She began to do so but refused to rub his penis. While seated on the bed beside her the applicant had played with her breasts, but soon afterwards they dressed and returned to the lounge room. Immediately before this occurred the applicant, according to MD, had said that he would give her $200, to be used "to look after the girls". MLM gave no evidence of this later incident, saying only that they had all stayed in the lounge room before going to bed at about 1 a.m. The girls had all slept in the one bed in the spare bedroom. AMB was likewise unable to confirm the alleged return to the bedroom by the applicant and MD saying also that they sat in the lounge room until they went to bed. In addition she said that the applicant had discussed what they had done in the bedroom and how MD "knew how to please him", a conversation denied by MLM.

The final incident leading to the charge in count 18 was said by MLM to have occurred the next morning, but the jury again acquitted the applicant on this count. MLM alleged that after waking and dressing at about 7.30, she had found the applicant already in the lounge room. She had arrived there first and the applicant had given her a massage while she was wearing her bikini top and bottom. He had asked her to lie on her back, the applicant first pulling her bikini so as to expose her breasts which he massaged. She said that then he pulled her bikini bottom to one side and put his finger in her vagina. AMB had then come out, the applicant had asked MLM if she liked what he was doing and she had said no. As AMB walked out the applicant ceased massaging MLM. Of this alleged incident MD gave no evidence. She said that when she came into the lounge room in the morning MLM was fully dressed. The applicant had then told MD that his brother would have sexual intercourse with her for money. He had given her $70 but said he would forward the rest to Melbourne when he knew their address. AMB, however, had confirmed in her evidence that MLM had been wearing only a bikini and that, when she had come into the lounge room, MLM was lying on her back with her breasts and vagina exposed and the applicant leaning over her rubbing her belly. She had also confirmed that MD had $70, but had not seen the applicant giving it to her.

Each of the girls then said that they had been picked up by the applicant's brother who had driven them to the bus station. They went to Melbourne but had fallen out within a short time. In consequence, MLM and AMB had returned to their home town within a few days. MLM had been placed in a foster home at least by 22 February but it seems that there were a number of allegations made by her to friends about the applicant's behaviour. She had first told the police only what she alleged against the applicant as to his behaviour with MD, but not at first about the acts she herself directly alleged against the applicant. AMB had likewise made a statement to the police before MD returned. There was considerable cross-examination as to the making of these statements, suggesting fabrication and in particular suggesting that MLM and AMB had worked out their stories together.

At this trial the applicant did not give evidence.

Counsel for the applicant stated that grounds 1 and 2 of his client's application should be treated as abandoned, leaving for argument only one ground, elaborately expressed, that the verdicts were unsafe or unsatisfactory. The terms of the ground were all relied upon in one way or another on this appeal, so they should be set out:

"The verdicts are unsafe and unsatisfactory in that: (a) Proof of counts 14 and 15 depended on acceptance of witness [MD] whom the jury had rejected on count 16. Counts 14 and 15 are in part, as to opportunity, corroborated by [MLM], a witness whom the jury rejected on count 18, and [AMB], whom the jury had rejected on counts 7 and 8. (b) Proof of count 9 depended on acceptance of [MLM], a witness whom the jury had rejected on count 18. Count 9 is corroborated, as to opportunity, by [LJC], a 13 year old friend of [MLM], who admitted to not being sure of what she had seen and who had given a different version to police than that of her own evidence and different to that of [MLM]. (c) The sequence of events as to counts 14, 15 and 16 as told by [MLM], [MD] and [AMB] are all significantly different. (d) The complainant [MD] was a schizophrenic. (e) The prosecution case did not adequately deal with the question of who visited the witness [CS] when and what was said and done at the flat. (f) The prosecution did not adequately deal with the question of a meeting between [MLM], [MD] and [AMB] before [MD] made a statement to police as to what was said at that meeting."

In essence what is complained of is the inconsistency of the verdicts, although counsel conceded that they were not inconsistent in the strict sense, only that the jury's acceptance of certain witnesses on particular counts was in a number of cases inconsistent with its apparent findings on others. There were, of course, inconsistencies in the evidence but for the most part the learned judge, in a notably fair charge, drew attention to most of those inconsistencies. Moreover, he fairly described the witnesses as being prone to lie, so that their evidence should be closely scrutinized and upon which it would be dangerous to convict unless firmly satisfied that their evidence was true. He likewise drew attention to MD's schizophrenia and the fact that it might have interfered with her memory. Accordingly, it is not surprising that the jury acquitted the applicant on five out of the eight counts.

The remaining three counts seem, on analysis, all cases where the word of one of the complainants is supported directly or indirectly by the evidence of others, and where the other asserted inconsistencies seem to be of little consequence. The judge's warnings were, for the most part, given proper heed by the jury. What was left was the principal allegation at this final trial relating to the older girl and the earlier incident of the same kind relating to MLM. Each was confirmed in one way or another by one or more of the witnesses, although the jury did not consider that kind of confirmation necessarily was sufficient or satisfactory. So the allegation that the applicant had penetrated MD on the morning of 14 February, though seemingly confirmed by AMB, was not accepted, whilst LJC's confirmation of MLM's allegation of penetration by the applicant on 5 February was accepted. One can say, as is obvious, that the jury rejected the evidence seen as a whole in one case but not in the other. Perhaps the absence of any support for MD in relation to the allegation of this last attack on her left the jury in sufficient doubt. In each case the jury was entitled to look at the whole of the evidence.

Moreover, I can see little virtue in saying that because the jury had "rejected" the evidence of a witness on one count, it was bound to reject that witness's evidence on another. That inverts the jury's task. In each case the jury must be satisfied beyond reasonable doubt on the whole of the relevant evidence. If there be factors causing doubt on one count, then they must acquit. It is ordinarily only where the witness in question is the sole witness to the relevant events that true "inconsistencies" are likely to arise, but even then surrounding circumstances may relevantly differ.

Thus the applicant complains in his grounds and the argument put on his behalf that the jury accepted MD whom the jury "had rejected" on count 16. That assumes that they had dealt with the later count first and found her incredible of belief, but even if they did, this Court knows only that they were not satisfied beyond reasonable doubt, and cannot tell if they specifically disbelieved her. Counts 14 and 15 not only depended on MD's evidence but on that of two other supporting witnesses. Moreover, assuming that the jury accepted that the three girls were anxious to leave their hometown, had no money to do so but turned up at the flat of a man 40 years their senior at 11.30 at night, it is not surprising that they also accepted that some sexual activity took place in return for money at that time. When they came to count 16, only in part confirmed and relating to events later that night, they may have viewed as an attempt "to gild the lily", especially as there is no confirmation by either of the other two who were present.

Likewise it was not necessarily the case that the jury had already "rejected" MLM in relation to count 18, when they accepted her evidence as to count 9. The latter evidence was confirmed by LJC who, although a member of the same group of friends, was not involved in the escapade to Melbourne, and may well have been seen by the jury as sufficiently impartial an observer to add weight to MLM's allegations as to count 9, notwithstanding that she had been vigorously cross-examined in detail as to that event. There were certain inconsistencies, which is almost invariably the case, certainly in cases of this kind, but LJC's confirmation as the essential point was clear and capable of being accepted by the jury. (It is interesting to note, in hindsight, that LJC was the complainant all of whose allegations led to convictions by a different jury at the third trial.)

Then it was said that the jury ought not to have accepted either AMB or MLM as reliable witnesses to provide confirmation of the two counts alleged against the applicant relating to the sexual penetration of MD on the night of 13 February. MLM's evidence has not been seen by the jury to be entirely unreliable in relation to her allegations and the rejection of AMB's claim which led to acquittal on counts 7 and 8 arose out of events of seemingly a quite different kind. On those counts one of the principal issues was whether or not the relatively inoffensive acts were mere horseplay and not sexual attacks by the applicant, and it was clearly open to the jury to consider that there was a reasonable doubt as to the nature of that earlier attack. Again the confirming witnesses' evidence as to what they observed in relation to the attack on MD was clear, even though many of the surrounding circumstances were confused in their minds. The jury was entitled to treat that as mere detail and the kind of matter upon which there might be genuine confusion in recollection. On the critical issue there could be no real doubt. It was also suggested, though without great enthusiasm, that, although what they said might have been confirmation of the penile penetration alleged in count 15, it could not amount to corroboration of the digital penetration alleged in count 14. That appeared to take an over-technical view of what they could confirm because there could be no doubt, if the events generally were accepted by the jury, that they knew why and under what circumstances MD had gone to the bedroom with the applicant, what generally had occurred and how they appeared shortly thereafter.

For the rest the complaints were about acceptance of evidence as to incidental matters, such as the timing of the visit to the flat of CS, who was not in fact a witness. It is perhaps easy for an appellate court to read the transcript of evidence given at a trial and reach a conclusion that certain evidence is incapable of being accepted because of doubts and inconsistencies of its own and by comparison with that of other witnesses. Experience tells, however, that witnesses very rarely tell precisely consistent stories and indeed judges and juries are frequently suspicious of versions which precisely coincide. In each case it is for the jury to be satisfied beyond reasonable doubt as to the essentials of each count. The circumstances surrounding the events are easily forgotten with time and, although effective cross-examination as to detail may show that a particular witness is a congenital liar, that is no more to be assumed than that others have a propensity to commit sins of a different kind.

Nevertheless, making due allowance for all these things and applying the tests recently laid down in the High Court in cases such as Jones v. The Queen (1997) 191 C.L.R. 439 at 451-452, I have not been persuaded that the verdicts in this case were either unsafe or unsatisfactory.

It follows that the application in relation to counts 9, 14 and 15 has not been made out, so that the application in respect of the fourth trial should be refused. As I have stated earlier the applications in respect of the first and third trials should be granted, the appeals allowed and a re-trial ordered on each of those counts, except that in respect of those counts where a lesser verdict was brought in, a re-trial should be ordered on the lesser counts.

I have had the benefit of reading in draft the reasons for judgment of Ormiston, J.A. I agree in the conclusions at which his Honour arrives and, save for any differences in emphasis that there may be in what follows, in the reasons which he assigns for those conclusions. I desire, however, to set out briefly in my own words the reasons which lead me to the same conclusions in respect of the first and third trials and to add some brief comments in relation to the sole ground argued in respect of the fourth trial.

The statements by the complainant and GED that are the subject of this ground suggest sexual misconduct with other girls and have a compounding effect as between themselves. The statements were both inadmissible and highly prejudicial. The appeal is not against the refusal to discharge the jury but against the conviction (Maric v. The Queen (1978) 52 A.L.J.R. 631 at 634-635), and the question on this appeal is, therefore, whether in the circumstances the refusals to discharge the jury occasioned the risk of a substantial miscarriage of justice or, perhaps more accurately, whether, but for the admission of the inadmissible evidence, the conviction was inevitable: Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 at 421. At basis the question is whether the Court can be satisfied that the irregularity has not affected the verdict and that the jury would certainly have returned the same verdict: Maric at 635.

It is impossible to be satisfied of this. The applicant was facing only one count. No specific direction was given following GED's impugned utterance. The complainant in particular and GED were central witnesses to the Crown case and their credibility was in question. One cannot exclude the possibility that the jury's assessment of them was affected by hearing their mutually supportive assertions of uncharged acts. The judge's direction when he intervened after the complainant's three impugned utterances and the direction in his charge not to "speculate on other matters" were, in my opinion, insufficient, even in combination, to overcome the risk of substantial miscarriage. Defence counsel's request to the judge not to deal with the statements specifically in his charge cannot assist the Crown, for that was the best course he had left to him after the refusal of his two applications for discharge. In those circumstances, contrary to the submission to this Court on behalf of the respondent, the request does not "flag the atmosphere" at the trial. In the circumstances of the refusal of the two applications for discharge and the request not to deal with the statements specifically in the charge, there was no point in taking an exception to the charge and accordingly the absence of exception does not assist the Crown.

There having been an irregularity amounting to a "miscarriage", the Crown has failed to show that it was not a substantial miscarriage of justice and accordingly the proviso does not apply.

Clearly the motive of a witness to lie is relevant and important. The witness may be cross-examined on that topic and evidence to contradict the answers of the witness and to suggest a motive is admissible: Piddington v. Bennett & Wood Pty. Ltd. [1940] HCA 2; (1940) 63 C.L.R. 533 at 545. Despite what defence counsel said to the judge immediately before the luncheon adjournment on the third day, it may be accepted that the cross-examination of the complainant suggested, even if weakly, a motive to lie. But, since neither that cross-examination nor the evidence in chief of the applicant suggested any personal knowledge on his part of the facts relating to the motive put forward, and since that motive was not one on which it might in advance be thought the applicant had personal knowledge, he should not have been cross-examined even about that, because "the facts from which an inference of motive might be drawn" were not "facts that the [applicant] would know if they existed": Palmer v. The Queen [1998] HCA 2; (1998) 72 A.L.J.R. 254 at 257 (para.7). In any event, any cross-examination should have been confined to probing the applicant's personal knowledge of the motive put forward.

Even if the foregoing reading of Palmer be considered too strict in the light of the passage from R. v. Uhrig (unreported, New South Wales Court of Criminal Appeal, 24 October 1996) quoted in the joint judgment in Palmer at 258 (para.10) (from which judgment alone, it may be observed in passing, may any ratio or ratios be distilled), nevertheless the principles enunciated in Palmer were contravened in that -

(a) cross-examination of the applicant concerning motive commenced in a general fashion, and cross-examination of him later as to a reason "other than money" did not arise out of cross-examination on behalf of the applicant or out of his evidence in chief; and, it may readily be inferred, the prosecutor used a general, and not specific, rhetorical question in his address, and the judge repeated this;

(b) although the judge in his charge correctly stated the onus of proof and correctly stated that by giving evidence the applicant did not undertake any onus of proof, he failed to give a direction in accordance with the passage in Uhrig approved in Palmer (cf. R. v. Jovanovic (1997) 42 N.S.W.L.R. 520 at 542) or even in accordance with the charge set out in R. v. DJT (unreported, Court of Appeal, 15 May 1998) at p.9;

(c) no motive having been put to GED in cross-examination on behalf of the applicant, cross-examination of him as to any motive on her part was improper according to Palmer and not justified by DJT.

As to point (a), counsel for the respondent very fairly acknowledged that questioning as to a reason "other than money" went beyond what was proper and that the prosecutor had addressed on this and the judge had failed to correct those transgressions. As to point (b) above, the direction commended in the passage in Uhrig there mentioned is a direction that, even if the jury rejects the motive to lie put forward by the accused, that does not mean that the witness concerned is necessarily telling the truth, and that it is to be emphasised that the Crown must still satisfy the jury that the witness was telling the truth. Even if point (c) be said to be immaterial by itself, as only one question was asked on the topic (cf. R. v. Arundell [1998] VSCA 102 at 62), the three points in combination show that a miscarriage of justice occurred. Even if the impropriety of the cross-examination mentioned in points (a) and (c) could have been removed by a clear and firm direction from the judge at the time or even in his charge, no such direction was given.

The lack of objection to the questioning and the lack of exception to the charge are, in my view, explicable, as in R. v. Hewitt (unreported, Court of Appeal, 14 May 1998) at p.10, on the ground that Palmer had not at that time been decided and the law in Victoria was still as stated in R. v. Rodriguez [1998] 2 V.R. 167 at 184. The passage in DJT at pp.10-11 rejecting such an explanation is, I consider, distinguishable on the facts.

The parties in argument referred the Court to several cases on motive to lie besides Palmer, including a further High Court case of Graham v. The Queen [1998] HCA 61; (1998) 72 A.L.J.R. 1491 at [1998] HCA 61; 1497; 157 A.L.R. 404 at 412, per Callinan, J. (with whom Gleeson, C.J. agreed); Hewitt; DJT; R. v. Somers (unreported, Court of Appeal, 15 June 1998); R. v. Noonan (unreported, Court of Appeal, 14 August 1998); R. v. JMS (unreported, Court of Appeal, 20 August 1998) and R. v. GET (unreported, New South Wales Court of Criminal Appeal, 25 June 1998). I do not, however, consider it profitable to consider them closely, for they are all distinguishable to a greater or lesser degree on their facts. I would make only three comments. First, in DJT and GET the accused had given evidence (and in GET also called evidence) as to the complainant's motive or motives, about which he was held to be liable to be cross-examined. Secondly, the trial judge in DJT had in his charge given a direction which went a significant way towards satisfying the requirements of Uhrig. Thirdly, as regards the prosecutor's general rhetorical question, repeated by the judge, I consider applicable here the comments of Buchanan, J.A. in Hewitt at p.8, with which I respectfully agree, when he said that to respond to the suggestion in cross-examination of a complainant of a particular motive to lie with the rhetorical question is to suggest that, if the jury rejects the defence suggestion, it is to be concluded that because no credible has been put forward the complainant's evidence should be accepted, which is at odds with the correct view that the absence of proof of motive is entirely neutral.

In my view, the single additional ground of appeal based on Palmer, which alone was argued, is made out in that:

(a) as counsel for the respondent again very fairly conceded, cross-examination of the applicant as to motive to lie on the part of the witnesses [MAC] and [MLM] did not arise out of his counsel's cross-examination of them or his own evidence in chief;

(b) the cross-examination of the applicant himself as to motive to lie on the part of the complainant was wider, with its suggestion of his being "at a total loss", than his counsel's cross-examination of her warranted;

(c) the prosecutor, it is reasonable to infer, asked, and the judge in his charge repeated, general rhetorical questions as to motive; and

(d) the judge failed to give directions in accordance with the passage in Uhrig approved in Palmer or even in terms of the charge set out in DJT.

Point (b) may be considered a little technical, but it is unnecessary to consider what would be its effect if it stood in isolation, for it does not do so.

The sole ground argued, that the verdicts of guilty were, in the well understood but non-statutory expression, "unsafe and unsatisfactory", was based principally on the contention that those verdicts were inconsistent with the verdicts of acquittal on the other counts the subject of this trial. The few comments which I wish to make are confined to that contention. As Gaudron, Gummow and Kirby, JJ. noted in MacKenzie v. The Queen (1996) 190 C.L.R. 348 at 367, "the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led the courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense." Substantially the same view was expressed by King, C.J. in a passage in R. v. Kirkman (1987) 44 S.A.S.R. 591 at 593, which their Honours went on to quote in MacKenzie at 367-368. The ground of appeal so far as based on the contention that the verdicts were inconsistent is the ground that succeeded in Jones v. The Queen (1997) 191 C.L.R. 439, but that case was not cited by counsel for the applicant in his written or oral submissions. There was, in my view, good reason for this, in that, as appears from the reasons of Ormiston, J.A., the verdicts of acquittal here do not, as they did in the particular circumstances in Jones, necessarily mean that the complainants in the counts on which the applicant was convicted were disbelieved in respect of the counts relating to them on which the applicant was acquitted. As explained in the judgment of the President in R. v. KET [1998] VSCA 73 and the cases there cited, the jury may simply have not been prepared to convict without confirmatory (by which I mean corroborative) evidence or may have been prepared to accord the applicant the benefit of some doubt which in the circumstances disclosed they felt. Finally, I consider that this Court, in reaching the conclusion that the ground is not made out, is entitled to place some weight upon the report to it as to this ground by the very experienced trial judge and in particular upon his statement, "I did not consider the jury's selection to be unreasonable".

Although there have, for the reasons of fairness and practicality, already been four trials to clear the presentment, none of them was a re-trial. There is no discretionary or other consideration pointing against the re-trial of the applicant, and accordingly a re-trial should be ordered on each of the counts of which he was convicted in the first and third trials save that in respect of counts 13 and 19 the re-trial should be on the lesser charges of which he was convicted. This Court will at least have to substitute a non-parole period in respect of the sentences, imposed after the fourth trial, on counts 1, 9, 14 and 15.

CRIMINAL LAW - Sexual offences with children under 16 - Evidence of sexual misconduct with other girls - Failure to give appropriate directions - Questions and argument directed to complainant and witnesses' absence of motive to lie - Palmer v. R. [1998] HCA 2; (1998) 72 A.L.J.R. 254 - Claim that verdicts unsafe or unsatisfactory because jury appeared to accept witnesses on one count but not on others.

At a glance

Court

Decision date

Before

Source

Judgment (102 paragraphs)

Parties

Cases Cited (2)