R v KOSTARAS No. SCCRM-03-106 [2003] SASC 323

R v KOSTARAS No. SCCRM-03-106 [2003] SASC 323 - SASC 2003 case summary — Zoe

[139]

I will discuss what you have from Kostaras himself later because it is a little different insofar as it is not evidence that you saw him give; it is evidence from a prior trial, and you were at a slight disadvantage in assessing his evidence because you didn't see him give it at the last trial. So you only got the words, you didn't get the other parts you can consider in forming a view about whether you believe someone or not. I will come back to that, but I suggest, even with that disadvantage - that is not having seen him give evidence - that Mr Kostaras's evidence from the last trial is plainly unconvincing and unsatisfactory. To put it mildly, at his last trial, Mr Kostaras crumbled in cross-examination and by the end of his cross-examination, his credibility was naught.

...

I want to turn to the accused's evidence from the last trial because you might be wondering why it was tendered as part of the prosecution case in this trial. The reason is I suggest some of what was said in evidence last time was true, some of it was partly true and some of it was a complete lie. As a legal matter, if we want to use parts of his evidence from the last trial as part of our case, we are obliged to put it all before you so you can hear both for and against him.

As his Honour will probably tell you, the evidence, whilst it was part of the prosecution case, Mr Kostaras's evidence from last time can be used both for and against him in the trial. So you'll have to think about whether it helps you think he is innocent or not been proved guilty, as well as think whether it helps you to be satisfied he is guilty.

...

When you look at the accused's evidence in the last trial, there are a number of problems with it, and there is no gentle way of saying it, but I suggest he told lie after lie. His evidence was unconvincing and he was quite evasive. Unfortunately, it might not come out so well when it is just read out the once. You don't get to see him, see him thinking, you don't get to hear if there are pauses between questions and answers, you don't get to hear the tone of voice he uses but even just looking at the bare words we have, I suggest in his evidence he came across quite evasively and not credibly.

[148]

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. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F:

'the 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie'? That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.'

[154]

But remember, it is wrong to ask yourselves, in the context of the accused, why should [the complainant] lie? That's not a question which the accused can answer. It is a question which requires a speculative answer, and the conclusion in this case is not to be reached by speculation.

It is impossible for the accused to account to you for what he says is a false story told by [the complainant]. He is unable to see into the mind of [the complainant], and so the question is unfair.

You will see now that to question yourselves in this way is actually reversing the onus of proof, and you know that must not occur. The onus stays with the Crown, and the accused is innocent until you are satisfied beyond reasonable doubt as to his guilt.

If you conclude that [the complainant] has such a motive that, in itself, would not necessarily mean that he was not telling the truth, but it will be relevant to your assessment of his credibility and the weight which you are prepared to give his evidence in the Crown case.

If you understand that you have been asked by the Crown to consider that there is a suggestion by the defence that the many persons whose names were mentioned to you, who were Crown witnesses, are involved in a conspiracy with the accused as its target, then I want you to carefully understand what I know say to you.

Firstly, [counsel for the accused] has made it clear to you that the defence is not suggesting that there is a conspiracy by the prosecution witnesses. The accused's defence is that he did not do it, he did not have sexual relations with [the complainant] at all in 1987 or at any time. Secondly, to the extent that there is a question posed for the accused to answer, 'why would the Crown witnesses conspire?', I repeat what I have said to you a moment ago about the question 'why would [the complainant] lie?' It is not a question which can concern you, because to do so means that there is some expectation on the accused to answer it. As you know, there can be no such expectation, because to have it would require speculation on your part, and would reverse the onus of proof. You know that is wrong. There is no onus on the accused. The onus is always with the Crown to prove each count beyond reasonable doubt, and that cannot be achieved by asking that the accused supply answers and explanations where there is no obligation upon him to do so.

As I have direct you, the law is that such a question cannot be asked, even rhetorically, and you should put it out of your minds and concentrate on whether the evidence that you accept beyond reasonable doubt is sufficient to discharge the onus of proof borne by the Crown in relation to each separate count and not go off into areas requiring speculation.

Ask yourself whether the evidence which you accept supports [the complainant] so that you can be satisfied that his evidence is reliable.

[187]

The evidence about them is led in order that you have some understanding of how it was, it is said, that the relationship between [the complainant] and the accused developed in 1987, after the first alleged sexual incident at West Lakes which [the complainant] put from about May to mid year.

This evidence helps explain to you why it is that these offences are alleged to be part of ongoing sexual conduct between them. Were it not before you - that is, the evidence - it is perhaps likely that there would be no link or continuity in activity and you'd have a false background against which to consider the Crown case. In addition, it goes to explain why [the complainant] may be unclear about the precise date of the offences charged. It also helps to explain acquiescence. It may suggest that the accused had developed an influence over [the complainant], and so explain his confidence in repeatedly committing acts of a sexual nature with [the complainant] during 1987. Further, this evidence, if you are satisfied about it, may provide strong evidence that the accused was sexually attracted to [the complainant].

You must consider this evidence in the setting of the nonsexual relationship which began and developed from the commencement of the school year. Did the accused pay attention to [the complainant] and did he, [the complainant] respond? If so, you may ask yourselves whether it is likely that [the complainant] considered that he stood in a special relationship with the accused.

When, in the whole context of the evidence, you come to consider what weight you will give to the evidence of the uncharged acts of sexual activity, I direct you that you must not act upon the evidence of that activity, or any of it, unless and until you are satisfied of its truth. If you are satisfied of its truth, or the truth of any part of it, then you may use that evidence of which you are so satisfied when you consider each count on the information, and whether you are satisfied that any of those counts occurred.

I direct you, however, that there is one use which you may not make of evidence of this type. You must not reason that because you may be satisfied that some or all of the uncharged acts are proven, then that, in itself, indicates that the accused is the type of person who is likely to have committed these offences. To so reason would be wrong, and you must not do it.

As I said, this evidence sets out how it is that [the complainant] says these offences came about, and describes the atmosphere in which he says they occurred.

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Cases Cited (27)

R v KOSTARAS No. SCCRM-03-106 [2003] SASC 323 (8 October 2003)