Grounds 5 and 6 - motive to lie
90 In the course of his address, the Crown Prosecutor dealt with the complainant's nomination, to Ms Combo, and to Constable Whitely, of the person "Rob" as the person who had just assaulted her. He continued:
"Now that's what she's telling Constable Whitely moments after she's fled from this scene near the toilet block. Now is she making it up members of the jury? I tell you I think not. If so, why? Why would she be making this up? I suppose there are many answers to that and I certainly don't ask you to speculate because she tells you who did it; she tells you it's this person Rob, a person that she doesn't know particularly well, but knows him well enough to recognise him and also knows it's him because he's the bloke she went to the toilet block in the first place when she was fully aware as to what she was doing in terms of being quite keen on the fellow and being prepared to go along with him. So she knows who it was."
91 Later in the address, the Crown Prosecutor said:
"You will recall the evidence of the accused himself. I asked him some questions as to whether there was any animosity, I think I said, or disagreement or something like that, between he and DR; there was none, they were friendly. Members of the jury DR is not making up first the fact of these things happening to her, nor the second as to who did them to her. She has no reason to in my submission to you members of the jury and she has not made it up."
92 The invitation to the jury that was said to arise from this submission gave rise to the fifth ground of appeal, it being submitted that it led to a miscarriage of justice. The manner in which it was dealt with by his Honour gave rise to the sixth ground of appeal, it being submitted that his Honour failed to give appropriate directions to the jury concerning the argument advanced.
93 The posing of a question, in the course of a closing address, that is designed as an invitation to the jury to consider why the complainant would be making her evidence up, is both imprudent and inadvisable, that is where the question of motive has not been ventilated in the evidence. This follows from the decisions of this court in Davies NSWCCA 8 December 1994; F (1995) 83 A Crim R 502; E (1996) 39 NSWLR 450; Uhrig NSWCCA 24 October 1996; Graham NSWCCA 2 September 1997 (reversed on other grounds 1998 HCA 61); and Jovanovic (1997) 42 NSWLR 520; and of the High Court in Palmer (1998) 72 ALJR 254.
94 However, what was said by the Crown Prosecutor, in this case, must be viewed in context, and in particular by reference to the fact that he made it clear to the jury that they were not to speculate about the matter. Understood in its full context, the Crown Prosecutor was conveying the message that the complainant had no reason to make up the allegation and was not doing so. He did not directly suggest to the jury that they should ask the offending question of themselves.
95 When his Honour came to deal with this part of the address in the same context in which it had arisen, ie in relation to the complaint to Constable Whitely, he did so in a way that did also not pose the question in a prohibited way. What he said was this:
"The Crown agrees that there are two versions by Ms Ross but the Crown says however that the version is consistent with the offence occurring and refers to the yellow and white stripe shirt that was being worn by the accused on that night. However, you may recall the evidence in relation to the trousers. Ms Ross says that on one part of the evidence that he has baggy brown trousers on and I think she tells the police that she does not recall what he was wearing on the bottom, again that is a matter for you. The Crown also says " Well look, is she making it up?" The Crown then goes on to say "Well, ladies and gentlemen, you are just not to speculate". And you may recall the directions I gave you about not guessing or speculating, you must determine this matter on the evidence that is before you."
96 The potential vice in posing the kind of question, discussed in the cases earlier mentioned, lies in the fact that it is a rhetorical question that implies its own answer, namely that in the absence of a reason being identified for the complainant to lie, none existed. It risks consciously or unconsciously reversing the onus of proof, so far as it might imply, unless accompanied by a direction to the contrary (Palmer at 258), that it is for the accused to provide a reason or motive, and that if he or she cannot do so, then the complainant can all the more readily be accepted.
97 As Sperling J, pointed out in E (at 462) the absence of motive cannot be inferred from the absence of evidence of motive, yet to pose the question is to give legitimacy to a line of reasoning that would support such an inference. Moreover, an unfairness can arise so far as a question, posed in such terms, may leave an accused accountable for failing to discern a motive in the mind of the complainant, even though no ready or reliable means exists of accessing another person's mind to discern the reasons for what he or she does or says. (see E at 464).
98 As a matter of common sense and everyday experience of life, one of the first matters that will occur to the jury is the prohibited question - why, unless it is true, would the complainant make the allegation up and go through all the trouble and stress to himself or herself, as well as to the accused and their respective families, that would be associated with an investigation and trial?
99 The reality of that circumstance has not been overlooked by appellate Courts, e.g. F at 511 per Gleeson CJ; Robinson (1996) 1 VR 402; Palmer Vic CA 10 September 1996; Rodriguez (1997) 93 A Crim R 535 at 553 per Callaway JA; Graham at 28 per Levine J and Jovanovic per Cole JA at 527-528 and especially by McHugh and Kirby JJ at 269 and 276 in Palmer.
100 Notwithstanding, the rigours of the criminal law have held the line by reference to the foundational principle that it is for the Crown to prove its case beyond reasonable doubt , and not for the accused to prove his innocence. The only exception allowed has been where a motive to lie has been asserted, on the part of the complainant, or by some other witness essential to the prosecution case, or where such a motive could reasonably be inferred from the evidence. In such a circumstance, justice requires that it be dealt with, and that the jury give consideration to the question whether there was a reason for the complainant to lie.
101 As Hunt CJ at CL said in Uhrig at 16-17:
"A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by S 103 of the Evidence Act 1995 for admissibility. If the alleged motive is denied by the witness, other evidence may be led to rebut that denial in accordance with S 106.
What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth."
102 In the various decisions, where the prohibited question has resulted in a conviction being set aside, it has been left in a way giving the matter prominence as a "central theme or issue", see F at 15-16; Rodriguez at 541, 544, and 549, or endorsing its legitimacy or otherwise describing it as an "appropriate" or a "reasonable" or "proper" question to ponder: see E at 454 and 467; Rodriguez at 542; and Jovanovic at 538.
103 That was not how his Honour dealt with the matter in the present case. Moreover, the immediate response to the question supplied by the Crown Prosecutor and repeated by his Honour, in my view, served sufficiently to overcome the potential problem.
104 The relevance and permissibility of cross examining a complainant to establish motive (but not the cross examination of an accused to show a lack of awareness of any motive unless its existence has already been raised by him), was confirmed in Palmer (per Brennan CJ, Gaudron and Gummow JJ at 257-258, and per Kirby J at 275 and 278).
105 The correctness of the passage in Uhrig cited above, as a statement of the law, was also recognised in Jovanovic per Priestley JA at 522. His Honour went on to explain that the reference, in that passage, to it being "appropriate" for the trial judge to give the direction as to what should follow in the event of the jury rejecting the motive, appeared to him to have been a reference to it being something that should necessarily be done.
106 Although some support for this view exists in the judgment of Kirby J in Palmer at 275, I would prefer to read the expression in a less rigid way, leaving it to the trial Judge to frame a direction suitable to the way in which, and the firmness with which, the possibility of motive has been opened up on the evidence, and in the closing addresses. In some cases, particularly where the motive is offered by the accused himself or herself, then the additional direction would normally be appropriate, lest the jury think it proper to penalise the accused for offering a reason which they find to be spurious or hollow, or designed unfairly to denigrate the complainant.
107 Where the evidence of a possible motive comes from another witness, or where the matter arises in some half-hearted way, in passing, as I believe it did in this case, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence, it being for the Crown to establish guilt beyond reasonable doubt, and that they ought not to speculate about matters that are not established upon the evidence.
108 The possibility of a motive for giving false evidence did in fact emerge, by inference, in the course of the cross examination of the complainant when she was asked about a conversation with Nathan Lenton, which allegedly took place at Tilly's night club, in December 1998.
"Q. And do you recall an occasion when Nathan Lenton was with Jacko and Adam at Tilly's nightclub in or about December of last year? A. No.
Q. And I suggest to you that you were introduced to Nathan as Robert's cousin. Do you remember an occasion when that occurred? A. No.
Q. And I suggest to you that you said to him that after you were finished with Robert you wanted fifty thousand dollars? A. No.
Q. That conversation took place didn't it? A. No.
Q. Did it take place anywhere? A. No.
Q. You see I suggest to you that you were saying to Nathan words to the effect that you were going to get Robert? A. No."
109 In the way in which the cross examination was developed, particularly in the absence of any direct question suggesting that the contemplation of monetary gain provided a motive for the complainant to pursue the claim, and to give false evidence, it would seem to have been more directed towards an issue of credit. However, it was capable of raising an inference as to motive, at least for persisting with the allegation; although possibly not for the initial complaint unless the complainant had been particularly venal in setting out, from the very beginning, to establish a case for compensation - in which event the plan went terribly wrong for her.
110 The defence called Nathan Lenton in its case, to contradict the complainant's denial. He gave evidence of a conversation along the lines put to the complainant, although this occurred, he said, at Colours nightclub at St Mary's, rather than at Tilly's. There was no objection to the evidence which, in any event, could have been called as an exception to the general rule that a witness's evidence, on a question going to credit cannot be contradicted by other evidence noted by Brennan CJ, Gaudron and Gummow JJ in Palmer at 257, or alternatively as a matter going to a fact in issue (per McHugh in Palmer at 265).
111 In cross examination, Mr Lenton agreed that the complainant had given no indication to him on this occasion, of having made up her account of the assault. There was no other evidence touching upon this aspect of the case.
112 For completeness I add, since it is a material consideration for the way in which the case was left, that the appellant gave no evidence suggesting the existence of a motive on the part of the complainant to lie, and was not cross examined in a way inviting him to offer one. At the highest, he was asked to agree, and did agree, that he and the complainant had been on friendly terms. This occurred in the context of questions designed to show that they knew each other, and that he was aware that she liked him - he agreed to having "had some indication" of that. This had a direct relevance so far as it tended to support the complainant's version that they went for a walk and kissed, after their meeting on the corner.
113 The Crown Prosecutor did not deal with the Lenton conversation in his address at all. However, counsel for the accused did take it up, after emphasising the need for the jury to "pull (the complainant's) evidence to bits, (to) scrutinise it, (and to) put it under the magnifying glass", and to look for any support for it, as well as for any matters that supported the defence case. This occurred in the course of his analysis of the matters which, he suggested, should leave the jury with a reasonable doubt about the complainant's credibility and reliability.
114 When he came to the evidence of Mr. Lenton, and her denial, he said:
"What do you do with that? Is it a motive perhaps? Who do you believe on that? Why does she deny it? Why does she deny it but she does. 'How much would it cost me to have you for the night?', words to that effect. She says 'Nuh', never said it. The accused said it happened on many occasions in his interview and in his evidence. Angelo says it happened. Glen says it happened. Melissa said it happened. What do you do with that? So you give him the benefit of the doubt, that's what you do with it. That's what you're required to do. Why would she deny saying it? It's all odd. It's very odd. Her whole evidence is odd. It's not enough."