36 Although Palmer v. R. was concerned with an accused who, when taxed with the question why should the complainant lie, was unable to suggest a reason, in our view the passage from R. v. Uhrig on which counsel now relies is to be viewed as a corollary to the rule that an accused ought not be cross-examined as to a complainant's motive to lie. The decision in Palmer v. R. was based upon the principle that the accused is under no obligation to explain why a complainant should lie, and the failure of an accused to do so has no effect, upon either the complainant's credibility or that of the accused. If the accused does suggest a motive to lie on the part of the complainant and the jury rejects that motive, there is potential for the jury to use that rejection in the same way as they might use an accused's failure to advance any motive to lie, namely, to conclude that the complainant's credibility is enhanced by the absence of a motive to lie.[5] In R. v. PLK[6] the accused in an incest trial in his record of interview suggested a motive on the part of the complainant to lie in making the allegations against him. The accused was not cross-examined about any motive to lie on the part of the complainant. During her address to the jury, the prosecutor dealt with the suggested motives to lie at some length. It was held that the trial judge erred in failing to give warning to the jury that rejection of a motive to lie attributed to the complainant by the defence did not render the complainant's evidence more credible.
37 We do not think that in every case in which the jury are asked to reject a specific motive to lie on the part of the complainant, the judge must give the jury a direction that rejection of the motive does not mean the complainant is telling the truth. In the present case, however, we consider such a direction was required. The prosecutor and counsel for the applicant in their addresses to the jury made the question whether the complainant had the motive to lie a significant issue. Accordingly, we think that there was a real danger that, if the jury rejected the motive to lie suggested by the applicant, they would regard the complainant as a witness with no motive to lie and whose credibility was thereby enhanced.
38 On more than one occasion in the course of his final address to the jury the prosecutor reminded the jury of the motive to lie on the part of the complainant advanced by the applicant in his record of interview, and contended that the suggested motive was false because the complainant had complained of the applicant's conduct to the social worker a month before the row about the state of the complainant's bedroom. For his part counsel for the applicant in his address to the jury countered the argument that had been described by the applicant in his record of interview. The absence of evidence by the applicant at the trial increased the importance of the record of interview. In the light of the importance which the evidence of motive played in the trial, in our view a firm and clear direction was called for, carrying the authority of a judge, to prevent a miscarriage of justice. Nowhere did his Honour give the jury any direction as to the manner in which they should deal with the motive suggested by the applicant and relied upon by his counsel.
39 The next ground was that the trial judge erred in his directions to the jury as to the evidence of complaint and, in particular, erred in his description of the use that could be made of that evidence. The evidence was that of the social worker, which we have recounted.
40 Counsel for the applicant submitted that the complainant said in her evidence that she had no intention of telling the social worker about sexual abuse, and only did so after several questions from the social worker suggesting that the complainant may have been sexually abused. On the other hand, the evidence elicited from the social worker was that she did not put any leading questions to the complainant. Counsel for the applicant also said that the prosecutor called the evidence, not for the purpose of buttressing the complainant's credibility, but rather for the purpose of rebutting the motive to lie on the part of the complainant suggested by the applicant in his record of interview, for the complaint was made before the incident relied upon by the applicant.
41 The complaint was made on 12 July 2001 and related to acts which occurred at about that time. In our view the evidence was capable of being treated as being made at the earliest available opportunity and was not the product of suggestion by the social worker.[7] The evidence was capable of being used by the jury to buttress the complainant's credit as a witness by demonstrating consistency. Accordingly, we think the trial judge was entitled to tell the jury that they could rely upon the evidence for that purpose, whether or not the prosecutor sought to make use of the evidence in the same fashion. In our view it is significant that no complaint was made by counsel for the applicant at the trial.
42 The next ground was that the trial judge erred in his directions to the jury by including in his description of uncharged acts the statement by the complainant to the social worker that "it had been going on for years."
43 The statement was, of course, hearsay. There was, however, admissible evidence to the same effect. The complainant said that not long after the family moved to Robertson's Beach the applicant would enter her bedroom at night and touch her breasts and genitals. She said that happened a couple of times a week. The complainant also said that the allegations she had made to others were true. In the light of that evidence, we do not consider that trial judge's slip occasioned any injustice to the applicant.
44 The final ground was that the trial judge failed to summarize the defence case. The trial judge did summarize the evidence led by the Crown, and in the course of doing so reminded the jury of the denials by the applicant in his record of interview. He did not, however, summarize the evidence of all the defence witnesses.
45 The defence case was that the acts alleged by the complainant did not take place. That was squarely put by the trial judge to the jury. The trial judge also reminded the jury of the evidence given by the applicant's son that the applicant had masturbated on the futon used by the complainant as a bed. In our view the evidence of the remaining defence witnesses was peripheral to the central issue in the trial, and the trial judge was not obliged to summarize that evidence. He did say to the jury that they were to consider all the evidence and not simply that evidence which he had referred to in the course of his charge, and said that the jury could be reminded of the evidence if the need arose. The jury in fact requested the judge to do so in respect of the evidence of two of the witnesses.
46 For the foregoing reasons we are of the opinion that the trial judge did err in failing to instruct the jury as to the manner in which they were to treat the motive of the complainant to lie, which was advanced by the applicant in his record of interview. Counsel for the respondent submitted that, if we arrived at that conclusion, nevertheless the appeal should be dismissed because no substantial miscarriage of justice actually occurred.[8]
47 The task we must undertake in determining whether the proviso applies is to make our own independent assessment of the evidence and decide whether, making due allowance for the fact that we are limited to proceeding on the record, the audio recording of the applicant's record of interview and two photographs of the applicant, the applicant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned their verdicts of guilty.[9]
48 The Crown case depended, to a significant degree, upon the testimony of the complainant. There was no other direct evidence of the commission of any of the counts. The evidence of confessions said to have been made by the applicant was capable of corroborating the evidence of the applicant, but it did not constitute evidence of the commission of any particular count. The DNA evidence was capable of corroborating the complainant's evidence with respect to count 4, although it was first necessary to evaluate the evidence of the applicant's son. The evidence of complaint made to the social worker was consistent with the complainant's evidence of the applicant's conduct in mid-2001. Some of the evidence as to confessions said to have been made by the applicant was attacked in the manner described in paragraph [30], above. On the other hand, the evidence of the final Crown witness described in paragraph [18], above, was unequivocal, striking and unshaken by cross-examination. The evidence of the complainant differed slightly from the evidence she gave at the committal. We do not think the differences were significant. Although he did not give evidence, the applicant denied each allegation of wrongdoing made to him in the course of his record of interview. His account of the surrounding circumstances was not shown to be false by any other evidence.
49 We are to have regard to the whole of the record of the trial, including the fact that the jury returned verdicts of guilty on four counts and acquitted the applicant on three counts. The acquittals are to be explained by the times at which the offences were alleged to have been committed. Counts 1 to 3 were alleged to have occurred between 1998 and 1999, count 4 was said to have occurred in February 2001 and counts 5 and 6 were said to have occurred in mid-2001. The trial judge instructed the jury that they could take the complaint made by the complainant to the social worker as bearing upon the complainant's credibility as to counts 5 and 6, but not as to counts 1 to 4, for the complaint was made too late to support the complainant's evidence as to the earlier offences. His Honour said that the jury could regard the absence of complaint of the offences the subject matter of counts 1 to 4 as inconsistent with the evidence given by the complainant as to those counts. He then said: