R v Miller [2000] VSCA 67

13. Three of the alleged offences were said to have been committed during a weekend fishing and camping trip in November 1997 undertaken by the applicant, the complainant, the complainant's father and one of his sisters. It was alleged by the complainant that on the Friday night when he had gone to bed in the back of the applicant's utility on a double bed mattress which he shared with the applicant, the applicant pulled the complainant over to himself and played with the complainant's penis. He further alleged that on the following day, while he and the applicant were sheltering from the rain under a canopy over the back of the applicant's utility, the applicant inserted the complainant's penis into his mouth and sucked it. The complainant further stated in his evidence that, when they reached home after the camping trip, the applicant said to him, "Don't tell Dad or I'll kill you."

16. The circumstances relating to the fourth offence were alleged to have occurred on a Friday in late March 1998 at the home of Mrs O'Brien and Mrs Ryles, which is located approximately two-and-a-half kilometres away from the complainant's home. For reasons which are not presently relevant, the applicant took the complainant with him to the O'Brien house, where he was to undertake some renovation work. The owners of the house had gone to Wangaratta, so that the applicant and the complainant were alone in the house. The complainant alleged that while he was sitting in the lounge room the applicant called him over and when he did not comply he came to him and pulled him out of the chair, nearly ripping his shirt, and pushed him to the floor, undid the complainant's trousers, took out his penis and sucked it.

19. On the following Sunday, 29 March 1998, the complainant told his father what the applicant had done to him. On the next day a VATE interview was conducted with the complainant, which was played to the jury as the complainant's evidence-in-chief.

22. The applicant was interviewed by the police on 31 March 1998. It is not necessary to summarise the contents of it. It is sufficient to say that the applicant initially denied having gone on the camping trip with the complainant and his family, but later admitted that he was there. At all relevant times he denied having engaged in any sexual conduct with the complainant.

25. The circumstances giving rise to the ground on which the applicant now relies for leave to appeal were as follows.

28. The trial commenced on the morning of 22 February 1999. At approximately 3.45 p.m. on that day the Crown Prosecutor began his address to the jury. On three separate occasions during the early part of his address, he in effect asked the jury rhetorically, why would the complainant make up the allegations against the applicant? After 15 minutes or so of the address the court adjourned for the day and, once the jury had departed, counsel for the applicant told the trial judge that he would seek an order for its discharge on the ground that the Crown Prosecutor had improperly raised with the jury the question whether the complainant had any motive to lie and thus fabricate the relevant events, contrary to Palmer v. R.[1]

31. It is convenient to interrupt this chronology and mention that during the cross-examination of the complainant it was suggested to him that the applicant had not improperly interfered with him, but this was denied by the complainant. It was not put to him, however, that he had lied about the applicant's alleged conduct with him. The applicant gave evidence denying the alleged wrongdoing, and he was not asked in cross-examination whether he could say why the complainant would make false accusations against him. Thus, the issue of whether the complainant had a motive to lie about the applicant was not raised during the evidence.

34. Continuing with the chronology, on the following morning, namely, 23 February 1999, counsel for the applicant made a formal application for the discharge of the jury, "as a consequence of comments made to the jury during [the prosecutor's] final address yesterday afternoon". Counsel said that the issue of whether the complainant had a motive to lie about the alleged offence was not the subject of any evidence and was not an issue at the trial, yet the thrust of the prosecutor's comments to the jury was that the complainant had no motive to lie. It was said that this was suggested to the jury by the prosecutor's rhetorical questions, which really amounted to asking why would the complainant lie. It was clear, said counsel, that such comments, albeit in the form of rhetorical questions, invited the jury to speculate as to whether the seven-year-old complainant had a motive to lie: this carried with it the risk that, unless the applicant provided a reason why the complainant would lie, the jury would take it that he had not lied, and thus, by illegitimate means, his credit would be bolstered to the prejudice of the applicant. The applicant's counsel contended that such prejudice could not be cured by a judicial direction and, therefore, the jury should be discharged.

37. His Honour ruled that the comments made by the prosecutor were not permissible, and during this appeal the Crown did not seek to challenge that aspect of the ruling. But his Honour went on to reject the application to discharge the jury because, essentially, he was of the view that any prejudice brought about by the prosecutor's comments could be cured by an appropriate direction from him. He concluded that in the circumstances a strong degree of necessity for discharging the jury was not made out.

40. His Honour then recalled the jury and gave them the following direction:

" You will recall that in the course of his final address he made a number of remarks to you which involved variations on the rhetorical question, which was, 'Why would the boy make up the allegations against the accused?' His point was that there was no likely motive and thus it is more probable that the allegations are true. I tell you now, as I will tell you in more detail at a later stage in the course of my charge to you, that those are remarks that should not have been directed to you, and the reason is that they involve a degree of speculation. They invite you to speculate about matters that have not been addressed in the evidence. This is a criminal trial and, as I am sure you already understand, but which I shall develop in the course of the charge to you, I hope later today, there are particular rules that apply to a criminal trial. A jury is required to be satisfied beyond reasonable doubt. A jury is prohibited from speculating about what is or is not shown by the evidence. In effect the remarks directed to you by Mr Perry invited you to speculate about matters that had not been addressed in the evidence. It would be unfair and improper for you to so speculate, particularly because this is a criminal trial of this character. Therefore you should not take into account the remarks addressed to you by Mr Perry last evening. I will expand on that point to some extent in the course of the charge that I give you later today."

44. The prosecutor then completed his address and was followed by counsel for the applicant. His Honour then charged the jury, emphasising, inter alia, as he had done from the very outset of the trial, that they were the judges of the facts and that it was their obligation to return their verdict based only on the evidence before them. In that context his Honour repeated his previous warning in relation to the prosecutor's comments:

"I want to repeat and emphasise the warning I gave you in the course of Mr Perry's address. In that address Mr Perry made various comments all based upon the rhetorical question, 'Why would [the complainant] make up these allegations against the accused?' I tell you as a matter of law that he should not have done that and that the reason that he should not have made those comments to you was that the comment is, in the context of a criminal trial, illogical. It is illogical because it invites you to speculate about something of which you know nothing and which you can know nothing, which has not been referred to in the evidence. The topic was not referred to in the evidence at all. The question is, 'Are there motives?' Well the response is that we do not know. The topic has not been discussed in the course of the evidence and it would be mere speculation on your part to guess as to the existence or otherwise, or to assume that there was no motive for [the complainant] to make up some sort of story against the accused man. Accordingly, you must exclude that argument and not employ it. You must decide the case according to the evidence that has been adduced before you and you cannot speculate about it."

At the conclusion of his charge, his Honour asked counsel for exceptions. In response, counsel for the applicant re-stated his earlier position that a judicial warning could not remove the prejudicial effect of the prosecutor's comments, but he did not submit that the form of his Honour's warning and direction was in any way deficient.

49. Mr Collins, who appeared for the applicant, submitted that his Honour erred in not discharging the jury and that in the result, the applicant was denied a fair trial. He contended first that the prejudice flowing from the prosecutor's comments in this case could not be cured by a judicial warning or direction. He submitted that the comments by the prosecutor were deliberate in the sense that he must have known that they were impermissible yet proceeded to address them to the jury, and that they had an immediate and prejudicial impact on the minds of the jury which could not be cured by a mere judicial direction. In support of this contention Mr Collins cited Crofts v. R.[2] In that case, the prosecutor pursued a line of questioning of the accused which was bound to produce, and did produce, the response that further sexual acts had been committed by the accused against the child (in respect of whom he had been charged with 13 counts of committing sexual offences). This was obviously highly prejudicial evidence. The prosecutor continued to press those questions notwithstanding that it was plain that he was on perilous ground, and notwithstanding that he had been effectively warned about the impropriety of such questions by counsel for the accused during the numerous objections to such questioning. The majority in that case considered the prosecutor's conduct was "deliberate". Their Honours said that the prejudicial answer was "produced by questioning which appears to have been deliberate and fraught with the dangers of producing the result that predictably ensued". They also said, in considering whether the jury should be discharged in those circumstances, that the deliberate conduct of the prosecutor should have been given "due weight". Mr Collins contended that in this case, the prosecutor's conduct was also deliberate and was a reason why a judicial direction could not cure the prejudice that flowed from the prosecutor's comment.

52. In my view, however, this case does not support Mr Collins's primary submission. First, their Honours recognised at 440 that inadvertent questions which lead to answers which are prejudicial to the accused may be capable of being cured by an appropriately worded judicial warning. It was just that in the circumstances of that case, the warning could not cure the prejudice. Secondly, the extent and the degree of prejudice brought about by the questioning in Crofts was significantly greater than the prejudice that arose in this case by reason of the prosecutor's comments and was of a different character. Furthermore, in Crofts, the prejudicial material "was left vividly etched on the mind of the jury over the long weekend adjournment which immediately followed". In this case, the matter could be addressed, as it was, the very next morning after the prosecutor's comments, which were made towards the end of the previous day.

55. In any event, in my opinion, the material does not support Mr Collins's claim that the prosecutor's comments to the jury were deliberate in the sense that they were made in the knowledge that they transgressed the principles stated by the High Court in Palmer. In my view, the interchange between the prosecutor and his Honour shows that the prosecutor believed when he made the comments that he did not thereby transgress Palmer. That the prejudice that flows from an inadvertent question may be cured by an appropriate judicial warning was also recognised by Dawson, J. in Crofts at 432 and by the majority in Palmer at 8-9.

58. In my view, having regard to the circumstances applicable to this case, which include those to which I will refer below, the prejudice flowing from the prosecutor's comments was capable of being cured by an appropriate warning. First, the jury had been directed by his Honour in clear terms on a number of occasions from the outset of the trial that their verdicts had to be based only on the evidence. The jury would readily understand, if so directed by his Honour, that the prosecutor's comments were just that and should be disregarded. Next, the trial was of short duration, so that it was likely that the jury would have no difficulty in retaining in their minds any direction given by his Honour. Furthermore, the warning was given immediately after the application for discharge was completed and in the midst of the prosecutor's final address. The rebuke that would be contained in such a warning would obviously be of forensic disadvantage to the prosecution. Moreover, whether to discharge the jury in the circumstances of this case called for the exercise of judgment which his Honour was best equipped to make. The discharge of a jury without verdict is a major and serious step which can only be taken when the trial judge considers that "a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained" (Winsor v. The Queen[3]; R. v. Boland[4]. Mr Collins accepted as applicable in this case what Dawson, J. said in Crofts at 432, namely:

" Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that 'a high degree of need for such discharge' must appear before a discharge will be ordered. [See Winsor v The Queen[5]; Swinburne v David Syme & Co.[6], and David Syme & Co. v Swinburne[7]; R v Boland[8].] When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury."

In addition, apart from exceptional cases, it must be assumed that juries heed directions that are appropriately phrased and act on them in the spirit in which they are intended. There are many cases which support this proposition. They include R. v. Miletic[9]; R. v. TJB[10]; Crofts at 441; R. v. Loguancio[11].

63. Mr Collins submitted that if the prejudice flowing from the prosecutor's comments was capable of being cured in this case by a judicial direction or warning, it was not so cured here because his Honour's direction was inadequate in at least three respects. First, Mr Collins said, it was limited to the jury being told that for the reasons given by his Honour, they were to disregard the prosecutor's comments. Mr Collins contended that the potential nevertheless remained for the jury to reason that, since the applicant did not explain why the complainant did not have a motive to lie, he must have been telling the truth about the events in question and thus, his credibility would have been bolstered through this impermissible reasoning. But this argument assumes that the jury would not heed his Honour's warning and for the reason that I have already given, that is an unfounded assumption in this case. Mr Collins next submitted that the direction was deficient because it did not explain sufficiently and in accordance with Palmer, the reason why the comments must be disregarded by them. In particular, it was said, his Honour failed to tell the jury that the complainant's account gained no legitimate credibility from the absence of a motive to lie. In my view, however, a fair reading of his Honour's directions makes it apparent that they properly reproduce the substance of the principles stated by the majority in Palmer. Lastly, Mr Collins contended that the direction should have followed that which was proposed by Charles, J.A. in R. v. Costin[12] as was suggested by this Court in R. v. PLK[13]. The material difference between his Honour's direction and that proposed in Costin was that the latter included a statement to the jury that there are many reasons why people may lie. Otherwise there is, in my view, no difference in substance between the two directions. But the circumstances in Costin which called for that particular proposed direction were materially different from those which were before his Honour. There, the contest between the prosecution and the accused was oath against oath, whereas in this case there was evidence of other factors to which the jury could have regard in assessing the credibility of the applicant and the complainant. Furthermore, in Costin the accused was in effect asked in cross-examination whether he could give a reason why the complainant would lie that he had raped her, to which the accused could not make a meaningful response. In those circumstances it may be appropriate to tell the jury, as part of the direction which relates to that impermissible questioning, that there are many reasons why people may lie. But no such direction was required in this case because this issue was never raised during the evidence. In any event, I doubt whether Charles, J.A. intended that his proposed direction be treated as if it were a statute and reproduced on every occasion where such impermissible questioning or comments are made.

66. What form a direction must take in order to cure the relevant prejudice must depend on all the relevant circumstances. In my opinion, the direction given by his Honour here was sufficient to cure any prejudice flowing from the prosecutor's comments.

69. It follows that in my view the application should be dismissed.

74. I agree. I merely add that, referring to the statement which should have been made to the jury in the opinion of Charles, J.A. in Costin's Case (p.668), Mr Collins was critical of the direction which had been given in the present case because it did not refer to a possible reversal of the onus of proof arising out of the Crown Prosecutor's remarks. It is true enough that in Costin's Case Charles, J.A. did say that the jury ought to have been told, with a view to curing the effect in question, that the critical issue was that the Crown at all times bears the onus of proof beyond reasonable doubt. I think it was not necessary, in the circumstances of this case, to say anything specifically about that in the course of the direction which was given with a view to curing the Crown Prosecutor's supposed indiscretion. In Palmer's Case itself, the majority judgment at p.21 of the report in the Australian Law Journal Reports indicated that the suggestion that a question raised as to whether a complainant had a motive to lie might have the effect of reversing the onus of proof might over-state the effect of the question in a particular case, especially if the trial judge gives the jury a direction to the contrary. Here, the judge had carefully instructed the jury, independently of the point which is now raised, on the importance of the onus of proof and of the Crown's meeting it. It was not, in my opinion, necessary to labour that point again in giving the corrective direction which the judge gave following the Crown Prosecutor's remark.

77. I agree that the application should be dismissed.

82. I agree with the reasons of Chernov, J.A. and the order proposed.

87. The judgment of the Court is that the application for leave to appeal against conviction is dismissed.

[3] (1866) L.R. 1 Q.B. 390 at 394-5 per Erle, C.J.

[4] [1974] V.R.849 at 866 per Full Court (Adam, Little and McInerney, JJ.).

[5] (1866) L.R. Q.B. 390 at 394.

[6] [1909] VicLawRp 92; [1909] V.L.R. 550 at 563.

[7] [1909] HCA 92; (1909) 10 C.L.R. 43.

[8] [1974] VicRp 100; [1974] V.R. 849 at 866.

[10] [1998] 4 V.R.621 at 631 per Callaway, J.A.

[11] [2000] VSCA 33 at [24] per Callaway, J.A.).

[13] [1999] VSCA 194 at [19] per Charles, J.A.