- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Bevinetto  QCA 219
CA No 10 of 2018
DC No 220 of 2017
Court of Appeal
Appeal against Conviction
District Court at Maroochydore – Date of Conviction: 14 December 2017 (Devereaux SC DCJ)
18 September 2018
12 June 2018
Sofronoff P and Henry and Crow JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT AGAINST EVIDENCE – where the appellant was convicted of one count of rape – where the appellant’s girlfriend walked in on the appellant engaged in intercourse with the complainant – where the complainant and the appellant’s girlfriend both gave evidence that the complainant was asleep at the time that the appellant was penetrating her – where the appellant gave evidence that the complainant was awake and had given her consent to sexual intercourse – where the complainant gave evidence that the appellant’s girlfriend woke her up, yelling at her that the appellant had “tried to rape” her – where the appellant’s girlfriend was firm in her recollection that she did not use the term “rape” – where the appellant submits that the appellant’s girlfriend was a reliable witness and that her insistence that she did not use the term “rape” was destructive of the reliability of the complainant’s evidence – whether the verdict was unreasonable or not supported by the evidence, having regard to this inconsistency between the complainant and appellant’s girlfriend as to whether the word “rape” had been used
CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the complainant gave evidence that she felt no pain in her vagina after she woke up – where the appellant’s girlfriend gave evidence that she heard the complainant moaning, but was not prepared to ascribe any reason for these sounds made by the complainant – where defence counsel submitted that the jury ought to have a reasonable doubt concerning the issue of consent, given the evidence as to moaning and absence of vaginal discomfort – where the Crown prosecutor submitted in his closing address that the jury, using their common sense and life experience, may find that the moaning was simply unconscious moaning made in the course of the complainant’s sleep – where the Crown prosecutor submitted that the jury, using their common sense and life experience, could find that the absence of vaginal discomfort is not necessarily inconsistent with the appellant having raped the complainant – whether the comments made by the Crown prosecutor regarding moaning and vaginal discomfort went beyond the bounds of appropriate comment and thereby gave rise to a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant submits that the trial judge erred in failing to direct the jury as to the complainant’s motive to lie – where the defence case was that the complainant was motivated to fabricate the allegation of rape against the appellant because of two possible motives – where the first motive suggested was that the complainant was afraid that the appellant’s girlfriend would have assaulted her if she admitted that the intercourse was consensual – where the second motive suggested was that the complainant would be embarrassed at work if she admitted that she had consensual intercourse with the appellant – where the trial judge gave no directions as to the complainant’s motive to lie – where no such direction was sought – whether the case was run in such a way that the trial judge’s failure to direct the jury as to the complainant’s motive to lie gave rise to a miscarriage of justice
Criminal Code (Qld), s 348
Alford v Magee (1952) 85 CLR 437;  HCA 3, cited
Ali v The Queen (2000) 79 ALJR 662;  HCA 8, quoted
Dhanhoa v The Queen (2003) 217 CLR 1;  HCA 40, cited
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
Palmer v The Queen (1998) 193 CLR 1;  HCA 2, cited
R v Callaghan  2 Qd R 300;  QCA 419, distinguished
R v Cupid  VSCA 183, distinguished
R v F (1995) 83 A Crim R 502, distinguished
R v PLK (1999) 3 VR 567;  VSCA 194, quoted
R v T  QCA 376, distinguished
R v Taylor  QCA 96, discussed
R v Thaiday  QCA 27, distinguished
R v W  QCA 90, discussed
RPS v The Queen (2000) 199 CLR 620;  HCA 3, cited
P D Lange for the appellant
C N Marco for the respondent
Hanna Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: A jury found the appellant guilty of raping a sleeping woman.
The complainant worked in a tavern together with Ms Jessica Peters. They were not close but they socialised together from time to time. Having regard to the opening hours of the tavern, it was common for the complainant to go out with friends very late on a Sunday night because on a Monday she did not start work until evening. Ms Peters was engaged to the appellant and lived with him. On the night of Sunday 7 August 2016, the complainant and Ms Peters arranged to meet the appellant so that the three of them could go out together to a bar. The complainant drove Ms Peters to the house that she shared with the appellant. The three of them had something to drink there and Ms Peters and the appellant produced some MDMA. The complainant had never used that drug before but the three of them each swallowed a pill.
A taxi then took them to O’Malley’s, a bar at Mooloolaba. There they drank spirit mixtures and danced.
At about 3 am they caught a cab together back to Ms Peters and the appellant’s home. It had earlier been agreed that the complainant would stay the night. By then it was almost to 4 am. They began to play some music and turned on a smoke machine and laser lights and continued dancing and drinking. Soon Ms Peters went to bed but the complainant and the appellant remained on the patio talking for a while longer. It was close to dawn.
In her evidence, the complainant said that she was exhausted. She felt that she had had a big night and day and wanted to go to bed. Her leg began jolting up and down nervously, perhaps as a result of the drug that she had taken. She said that the appellant put his hand on her leg to feel the jolting but then slipped his hand up her thigh and touched her in the vaginal area through her underwear. She told him, “Just don’t, stop.”
She testified that she then got up and walked towards the bedroom that she had been allocated by Ms Peters earlier that evening. The appellant followed her and confronted her in the dining room area and tried to kiss her on the lips. Again she pushed him away and said “no”. She felt uncomfortable. At that point she saw Ms Peters come down the hallway. She had evidently just been to the toilet down the hall. They saw each other. The complainant went to her room, followed by the appellant, and said “good night” and closed the door. She laid down fully clothed and fell asleep. She was wearing a three-quarter length white collared business shirt, a black skirt and black stockings. She had a g-string as underwear. The appellant had given her one of his sweaters to wear to ward off the cold and she was still wearing that when she fell asleep.
Her next recollection was being woken by Ms Peters “yelling at me”. Her evidence was:
“… and I’ve opened my eyes, and yeah, she’s just yelling, ‘Wake up’, Jess - ‘Chris just tried to rape you. Call the police.’ That’s how I was woken up, and I just didn’t know what – what she was talking about.
All right. What was your state of mind, or alertness, or orientation, at that point? --- I was confused, like, half asleep, like, just, yeah. It took me a little while to realise what she was actually meaning, because that’s – she told me to pull up my – my undies. So I looked down, and they were down to my knees, my stockings and my – my G-string I was wearing were both pulled down to my knees, and yeah, so it all started to ---
All right? --- Mmm.
Well, did you know how your underwear and stockings --- ? --- No, I ---
--- how they came to be about your knees? --- I had no idea. That’s why, yeah, what she was saying started ---
Yep? --- To freak me out and – and realise what [might have] happened.
Well, did you have any idea – well, did you – of what had happened after laying down on the bed and her yelling at you? Do you have any idea of what happened between then? --- No, I don’t know anything.
The complainant could hear Ms Peters loudly berating the appellant and the appellant repeatedly apologising. The complainant collected her belongings, got into her car and drove home. On the way she telephoned her ex-partner, the father of her two boys. She felt hysterical and tearful.
Jessica Peters gave evidence. Her account of events largely coincided with the complainant’s evidence. She recalled going to bed where she remained awake for some time. She then got up and went to the toilet. As she was returning to her bedroom she noticed the complainant and the appellant coming through the lounge room from the patio where they had been towards the hallway leading to the bedrooms. In cross-examination she said that, in hindsight, the appellant and the complainant looked “a bit weird”. The complainant was “a little bit, like, wobbly”. She herself returned to her bedroom and lay down. The appellant followed her into their bedroom, removed his clothes and came to bed wearing his boxer shorts. They began “making out and fondling”. The appellant’s penis was erect. After 10 or 15 minutes Ms Peters felt she had to go to the bathroom again and said to the appellant, “Ok, just hold on and let me use the bathroom”. She got up and walked down the hall to the toilet. She noticed that the door to the complainant’s room was closed. Leaving the toilet about a minute and a half later she noticed that the door to the complainant’s room was now open slightly. The sun was rising. She observed “quite a lot of movement” and pushed the door open. The bed was moving. She said:
“I seen [the complainant] laying on her belly; she wasn’t wearing any pants – sorry, skirts or tights, just the white jumper that she had on. I seen Chris leaning over the top of her, just – he was still wearing his boxers, obviously the penis was out sort of thing. And they were both kind of moaning in – well, Chris was moaning in a pleasurable way, and, yeah, [the complainant] was also moaning as well.”
Ms Peters said that the complainant’s head was “sort of smothered into the pillow”, obscuring her face, and her arms were by her side. They were not moving. Her legs were straight. The appellant was positioned over her with his waist “kind of … between her legs”. He was supporting his own weight and moving backwards and forwards in a motion consistent with vaginal intercourse and he was obviously engaging in sex with the complainant. He was moaning with pleasure. The complainant was not moving. Ms Peters could hear the complainant also moaning but was unable to say whether it was, in the terms used by defence counsel, a “pleasurable type of moaning”.
Ms Peters immediately punched the appellant in the face with her right fist, giving him a black eye, and said, “Are you fucking kidding me?”
It emerged in evidence that Ms Peters had previously assaulted a woman in a fit of jealous rage and had served a term of imprisonment as a result.
He scooted away, saying, “I’m sorry. I’m sorry, I was horny.”
As the appellant was shuffling to the end of the bed, evidently to avoid any further beating, Ms Peters saw:
“…that [the complainant’s] sat herself up and then sort of twisted around and faced --- ? --- All right.
--- both Chris and I.
What did she say? – She said, “What’s going on?”
All right. Did you make any observations of her face, at that point? --- Just looked puffy, as if she was sleeping.
Ms Peters told the complainant “He was having sex with you.” She was firm in her recollection that she did not use the word “rape”. The complainant looked “confused and shocked”. She told the complainant to go into her, Ms Peters’, bedroom and to lock the door. She then followed the appellant and continued shouting at him.
Her evidence was not challenged and her cross-examination was brief. She was not asked whether she was in a position to observe the appellant and the complainant flirting at the bar or whether they had been flirting or behaving amorously towards each other.
TS confirmed that the complainant called him that morning:
“I answered that phone call and [the complainant] was very upset, crying through the phone and sounding very erratic and speaking very quickly – just telling me that she’d been raped which, obviously, caught me by surprise. I was trying to calm her down and get her to speak a bit more clearly to me about what she was on about. She just kept on repeating that she had been raped [indistinct] I think it was.”
He described her as “very upset” and “erratic and crying”. He telephoned police who later attended at the complainant’s home.
At the end of the Crown case, the defence formally admitted that the appellant had penetrated the complainant’s vagina with his penis.
The defence case had emerged in cross-examination of the complainant. It was put to her that she had been “flirting” with the appellant while they were at O’Malley’s and that she had continued to flirt with him when they went back to the appellant’s home. No detail of this “flirting” was put to the complainant for her response. Nor was it put to her or explained how she could have been “flirting” with Ms Peters’ fiancé without Ms Peters noticing.
It was put to her that after they had all returned home, the appellant and complainant began kissing each other while they were out on the patio and that the complainant rubbed the appellant’s leg and penis through the outside of his clothing.
It was put to her that after she had gone to bed, there was a knock on the door and the appellant said, “It’s me. Do you want to finish what we started?” It was put to her that she answered “Yes”. On the defence case, the appellant then entered her room and said, “We’re going to have to make this quick.” It was put to her that “you lifted your bottom up and you took your lower clothes off”. This was inconsistent with the state of her clothing seen by Ms Peters, who said that the complainant’s underwear was around her knees.
The appellant elected to give evidence. He described the manner of the complainant’s “flirting” at the bar. He said that she would “play with her hair and [get] close to me”. He did not explain whether Ms Peters was in a position to see this and, if not, why not.
He said that upon their return home, and after Ms Peters had gone to bed, the complainant had “pulled her chair closer to me” and then “said to me that she is very wet and opened her legs and started rubbing herself”. He said that they then began kissing and fondling each other but, after 15 minutes, for a reason that he did not explain, he then immediately decided to go to bed. He turned the smoke machine off and entered his bedroom where he and Ms Peters began “cuddling and kissing”.
All of this emerged for the first time when the appellant volunteered it during his examination in chief. None of it had been put to the complainant in cross-examination.
On the prosecution case the act of sexual intercourse took place, to use the words of s 348 of the Criminal Code, without “consent freely and voluntarily given by a person with the cognitive capacity to give the consent’. The complainant expressly denied having given her consent. Moreover, she did not give evidence of any act of sexual intercourse for on her account she was asleep through the whole event and only awoke when the appellant moved away from her body in response to Ms Peters’ loud and violent intrusion. It was Ms Peters who gave evidence of sexual intercourse and the element of penetration was established conclusively by the appellant’s admission. The complainant’s answer to the proposition that she had made a false complaint of rape was:
“It’s not a false claim. I didn’t make a claim. I was – I didn’t even know what happened. And that’s what I wanted to find out, what happened. So it’s not a claim. I just wanted to know what happened.
… I did not consent to anything. I was asleep. And I woke up to Jess telling me that.”
Her evidence to that effect was supported by Ms Peter’s evidence that it was only after she, Ms Peters, had punched the appellant in the face that the complainant sat up, appearing confused about what had happened and puffy faced as though she had just woken up from sleep. The jury may have noticed that nothing in Ms Peters’ evidence suggested that she had seen anything evidencing that the sexual intercourse had been consensual.
The appellant now appeals against the jury’s guilty verdict on three grounds. First, he contends that the verdict was unreasonable or that it cannot be supported having regard to the evidence. Second, he contends that certain submissions made by the prosecutor were unsupported by any evidence and occasioned a miscarriage of justice. Third, he submits that the learned trial judge, Devereaux SC DCJ, ought to have given directions to the jury concerning the complainant’s motive to lie, but failed to do so and that this resulted in a miscarriage of justice.
The appellant seeks to support his first ground of appeal upon the basis that the evidence of Ms Peters “was accurate and reliable” and on the basis that there “is no rational basis on which the jury could not have accepted her evidence”. The appellant points to the evidence of Ms Peters that she did not use the word “rape” while the complainant had insisted that Ms Peters had told her that the appellant had “raped” her. In addition, he submits the Ms Peters “heard both the appellant and the complainant moaning”.
These matters, it is said, are “destructive of the reliability of the complainant’s evidence about the incident in question”.
That conclusion does not follow from the premises of the argument. It is true that the evidence of Ms Peters and the complainant were inconsistent concerning the words used by Ms Peters. However, the jury might well have thought that the complainant’s evidence about whether Ms Peters used the word “rape” was unreliable because of her frame of mind when suddenly woken from a drunken sleep by Ms Peters’ loud physical interventions. Since the witness to the act of sexual intercourse was not the complainant but Ms Peters, nothing appears to turn upon this difference in recollection. Second, since Ms Peters could not say whether the “moaning” of the complainant was the result of experiencing pleasure or discomfort from the appellant’s penetration of her, or whether it was due to something else entirely, nothing appears to turn upon that evidence either.
The appellant sought to rely upon the dicta of Keane JA in R v Thaiday. That was a case in which the complainant gave evidence at trial that the appellant, who had been drinking and whom she identified, entered her bedroom and lay on the bed with her. She gave detailed evidence that he smelled of alcohol, put his hand over her mouth and inserted his fingers and then his penis into her vagina. This evidence, given 20 years after the alleged event, was inconsistent with the complainant’s preliminary complaint to another witness. That witness said that the complainant had told her that “someone had entered her room” as she was sleeping and that that person had “sat on the bed and just touched her underneath the sheets in her private parts”. In respect of that evidence, Keane JA observed that the evidence of the witness of preliminary complaint “was not only inconsistent with the complainant’s evidence at trial, but actually destructive of the reliability of the complainant’s evidence about the incident in question”.
That is far from the present case. The complainant’s and Ms Peters’ recollections about whether the word “rape” had been used and about what might have engendered the “moaning” was entirely peripheral to the alleged criminal act, if they were relevant at all.
I would reject this submission as a basis upon which to conclude that the jury’s verdict was either unreasonable or that it was not supported by the evidence.
The second ground of appeal involves a complaint about submissions made by the prosecutor in his closing address. In order to understand the significance of the prosecutor’s submission it is necessary to consider defence counsel’s address. In order to make good his submission that the jury ought have had a reasonable doubt concerning the issue of consent, defence counsel, Mr Richards, said:
“On that point, my basic submission is that there are two basic points that would lead you to have a reasonable doubt. Firstly, [Ms Peters] heard [the complainant], moaning; and, secondly, the complainant’s evidence is that she felt no discomfort in her vagina. You might think common sense dictates that those two pieces of evidence would lead you to a reasonable doubt about the lack of consent.”
Counsel then referred the jury to passages of the evidence concerning Ms Peters hearing the moaning sounds. He then submitted:
“Now, perception is everything, isn’t it? We use our cognition. We look at something and we go, ‘That doesn’t seem quite right.’ So looking back now, she looks back at seeing them earlier on and thinks, ‘There’s something not quite right about that.’ What does that suggest to you, ladies and gentlemen? A little bit of insight into what was going on, perhaps, outside. Anyway, I’ll leave that to you for own [sic] edification.”
That was a legitimate submission. The absence of the complainant’s feeling of discomfort in her vagina might well tend to suggest to the jury that the sexual intercourse had been consensual. On the other hand, it might suggest nothing at all. It seemed to be common ground at the trial that, at the time she went to bed, the complainant was drunk. The continuing influence of the drug, if any, was unknown. In those circumstances, a jury might conclude that the absence of any pain was inconclusive and ought to be put to one side.
As to the “moaning”, Ms Peters was certain that the appellant was moaning in pleasure, but she was not prepared to ascribe any reason for the sounds made by the complainant. Again, it was legitimate for defence counsel to draw the jury’s attention to the possibility that the sounds made by the complainant indicated that she was taking pleasure in the act of intercourse and that, as a consequence, it could be inferred that she had consented to it.
There having been no suggestion that the act of penetration had been forceful, there was no reason to suppose that any injury that might cause pain had been inflicted. It is difficult to think what possible evidence might have been called on the subject. What the jury was being asked to do was to draw an inference of consent from the fact of the sounds made by the complainant and from the fact of lack of injury and defence counsel was entitled to submit that the jury could apply knowledge of human affairs to that question.
What is good for the goose is good for the gander. That submission having been made by defence counsel, the prosecutor was entitled to respond to that argument. On the issue of “moaning”, the prosecutor said:
“Now, yes, Mr Richards has raised some points for your consideration and they are important points. Moaning, well, use your common sense and life experience of sleeping people, perhaps, even yourself sleeping in terms – or a person you know sleeping. Firstly, there’s the matter of unconscious responses people may make when they’re sleeping. But, moreover, you would have your experience, common sense or life experience of when you try and sort of shake someone who’s sleeping, shake them vigorously, of the noises they may make, and – consistent with moaning, especially if someone’s in a fairly heavy sleep. And Mr Richards himself referred to the passage where Jessica seemed to be, but there was some distinction that he, the defendant, was certainly moaning, pleasurably, but she wasn’t quite so sure about [the complainant] moaning pleasurably, and he did read that question to you, out of fairness, and that’s at page 80, line 25:
Just to be clear, the moaning you heard from [the complainant] was pleasurable-type moaning?---I’m not really sure. I – I just – sorry, I just know that she was moaning.
So there does seem to be a distinction between his moaning and hers, especially as it’s his moaning she hears outside.”
This was an appeal directly to the jurors’ common experience and it was rendered necessary only because of the appeal made by defence counsel to that same resource, the jury’s common sense.
As to the absence of vaginal pain, the prosecutor said:
“Now, Mr Richards also brought up the point, well, there’s no pain to her vaginal area, and in fairness to himself, he also referred, at a later point to the cold, clinical, sterile environment of the courtroom. But – and it’s easy to offer an opinion as to what may – the vicissitudes or the variety of what may happen with female anatomy in these circumstances. But you could – you would apply your own common sense and life experience, but that’s highly variable. These things can happen with no pain or no injury. They’re highly variable. It would depend from – it’s one circumstance to the next. And that’s, of course, setting aside any unconscious response that may occur in a sleeping person, or such things as the ease of use of one’s own saliva to lubricate things.”
Notwithstanding that the appeal to the jury’s experience had first been made by defence counsel upon these very issues, the appellant relies upon R v Callaghan as authority for the proposition that the prosecutor ought not have made that submission.
Callaghan was an entirely difference case. The appellant had been found guilty by a jury of a charge of unlawful use of a motor vehicle. Witnesses had identified him as the driver of the car. However, the appellant denied that he had been the driver and said that he had unluckily been in the location where the actual driver had disappeared and that he had been mistakenly apprehended. An argument made to the jury on his behalf was that the appellant had been so drunk that it was not possible that he could have driven the car in the way described by witnesses.
In response to that submission, the Crown prosecutor had said words to the effect “I can tell you as a Crown prosecutor of this State that that is just nonsense” and “I am telling you that every day people are picked up with very high levels of alcohol”.
Pincus JA and Thomas J held that these statements amounted to giving evidence from the bar table and that they should not have been made. Crown counsel on appeal conceded that point. It was in that context that their Honours said:
“We observe however that it is not appropriate that Crown prosecutors use the dignity of their office in order to ‘tell’ a jury something that is not in evidence. It should not be forgotten that whether the address is to a judge or to a jury, counsel’s role is to make submissions, not express personal opinions or enter the fray as a contestant.”
The present case does not involve a prosecutor telling the jury anything. The prosecutor did not offer the jury the benefit of his experience, if he had any, on the subject of vaginal pain after intercourse or the pathology of moaning during the sexual act. Rather, he invited the jury to consider, in accordance with their own experience, whether the noises and the absence of pain were not inconsistent with the appellant having had non-consensual sexual intercourse with a sleeping woman.
This was a legitimate appeal to the jury’s judgment and did not result in any miscarriage of justice. There is nothing in this ground and I would reject it.
Finally, the appellant submits that the learned trial judge should have directed the jury about the complainant’s motive to invent her allegations.
When a complainant alleges that an accused has committed a sexual offence it is natural for a jury to ask whether or not the complainant had any motive to make a false allegation. The law does not require that the jury be directed not to ask why a complainant would lie. Indeed, as Pincus JA said in R v Taylor a jury would, reasonably enough, regard such a direction as an impermissible intrusion into their function. The inquiry is permissible because the proven existence of a motive in a complainant to make a false allegation makes it more likely, but does not prove, that the allegation actually made is false. The corollary is that the proven lack of any motive in a complainant to make a false allegation against an accused renders the allegation more credible.
However, the mere absence of evidence that a complainant has a motive to lie does not prove the non-existence of any motive to fabricate an allegation. The mere absence of proof will, therefore, usually be neutral on the question of the existence of a motive to lie, although one cannot foreclose the possibility that there may be cases in which the rejection of a particular suggested motive leaves no room to conclude that there might be any other motive. However, generally, the complainant’s credibility is neither enhanced nor reduced by a jury’s rejection of a motive that is proffered by the defence.
The raising of an issue whether a complainant, or another witness, has a motive to make and maintain a false allegation creates a potential for the jury to be misled into engaging in illogical reasoning in several ways.
First, a jury’s rejection of the suggested motive may lead it to conclude, from that rejection alone, that there can be no motive to lie and that the complainant’s credibility is thereby enhanced. That would be a mistake. Such a rejection will not establish the actual absence of any motive to fabricate the allegation but only the absence of the suggested motive.
Second, an inquiry into a complainant’s motive to lie might wrongly imply to a jury that, since it might be thought that the accused should be well placed to identify the complainant’s motive to fabricate the allegation if one exists, the accused’s failure to identify or prove such a motive tends, by itself, to prove that there is no motive. That would also be a mistake. An inquiry into a motive to make a false allegation is an inquiry into a person’s state of mind. A person’s state of mind will usually be proved by inference from facts. The accused may not be in a position to know the complainant’s state of mind. The accused may not be in a position to know any facts from which such a motive might be inferred. That an accused person does not know any reason why the complainant would make a false allegation proves nothing and it would be wrong for a jury to infer anything from such lack of knowledge.
Third, the process of reasoning would involve the jury in unwittingly placing the burden of proving the absence of motive upon the accused contrary to the fundamental proposition that the onus of proof is always on the prosecution. Consequently, it is prone to distort the process of a fair trial.
Nevertheless, motive to make a false allegation and, more rarely, the proved non-existence of a motive to make a false allegation, are matters that are relevant to the assessment of a complainant’s credibility. The defence and the prosecution are entitled to litigate that issue. However, such litigation must not be allowed to lead the jury, expressly or implicitly, to engage in the invalid processes of reasoning referred to above.
Consequently, any submissions made by the prosecution upon the issue of proof of motive to make false allegations must be made in a way that does not lead the jury into such erroneous paths of reasoning and the trial judge must be alert to ensure that the way the issue had been dealt with by the parties does not lead to such errors. It is the trial judge’s responsibility to determine whether a risk of error has arisen and to determine how to direct a jury so that the error does not crystallise.
It is not a judge’s function to tell a jury how to reason to a conclusion but a judge has a duty to warn a jury appropriately how to avoid irrational or impermissible modes of reasoning. In appropriate cases, therefore, a judge will need to warn a jury against engaging in the kind of erroneous reasoning to which this issue is prone to give rise. That is not to say that it is necessary to burden the jury with such warnings if they are not necessary. Alford v Magee remains good law. The only law that it is necessary for the jury to know is so much as to guide them to a decision on the real issues in the case and it is for the judge to decide what are the real issues in the case. Consequently, it will not be in every case that the issue of motive to lie will give rise to the risks to which I have referred.
The need to give a warning arose in R v F because the trial judge had informed the jury that “the central theme” of the trial was the complainant’s motive to lie. It also did so in Palmer v The Queen and in R v T because the prosecutor had cross-examined the accused about whether he could offer any explanation for the complainant’s making a false allegation against him. It also did so in R v PLK because the issue had “been made a significant issue by the unusual circumstances of the case, the cross-examination of the complainant and the entirely understandable emphasis placed on the issue by the prosecutor … [a]pproximately one quarter of the prosecutor’s address to the jury was in fact devoted to this issue.” The Queen v Cupid was another case in which a direction should have been given because the complainant’s motive to make the allegation “had assumed more than the usual importance by the end of the trial”.
In R v W and in R v Taylor it was held that the directions given were adequate to protect against the jury engaging in erroneous reasoning. In R v W the judge had directed the jury that it was open to ask what motive the complainant might have to fabricate the allegation against the accused, but having said that, the judge went on to warn the jury that they must not reason from a rejection of the proffered motive that there could be no motive at all. In Taylor the judge also raised the rhetorical question as to why the complainant might fabricate an allegation if there was no motive to do so. In each case, the trial judge did not regard it as necessary to warn the jury about other potential errors in reasoning but the Court of Appeal did not find any fault for that reason.
The principle that must guide a trial judge about whether a direction must be given on the subject of a complainant’s motive to fabricate an allegation is that a direction is necessary if, having regard to the real issues in the case and having regard to how the parties have conducted their respective cases, there is a risk that the jury might:
reason, from a rejection of the motive suggested by the defence, to a conclusion that there is in fact no motive, thereby wrongly enhancing the complainant’s credit;
reason, from such a rejection, that the accused’s failure to offer a plausible motive is probative of the absence of motive and of the truth of the complainant’s allegation.
In this particular case, the defence raised as an issue that the complainant had been motivated to fabricate her allegation of rape against the appellant because of two possible motives. First, it was suggested that she feared that if she admitted that she had engaged in consensual sexual intercourse with the appellant, Ms Peters might assault her. Second, it was suggested that if she made such an admission she would be embarrassed at work.
The cross-examination of the complainant was recorded in just 12 pages of transcript. Within those 12 pages, defence counsel, having established that the complainant knew of Ms Peters’ conviction for assault, put a single question to her about her own fear of being assaulted as her motive to fabricate her allegation of rape. No other motive was suggested to her. Nevertheless, in his address to the jury, defence counsel submitted that the complainant might have concocted her allegation because of a fear of embarrassment in the work place and a motive founded in the complainant’s fear of being bashed was referred to in only a single sentence.
Otherwise, in his succinct address, defence counsel concentrated upon the significance of the absence of any vaginal discomfort, the conflict in the evidence of the complainant and Ms Peters about the use of the word “rape” and upon the sounds made by the complainant when Ms Peters went into the bedroom. He emphasised everybody’s state of intoxication. The ultimate plea was that these were matters that ought to raise a reasonable doubt:
“We are trying to examine human behaviour, with all its frailties and all of its unexpectedness when under the influence of alcohol and, perhaps, to some degree, MDMA.”
In his own address to the jury the prosecutor compared the demeanour of the complainant and the demeanour of the accused in giving evidence. He dealt with the use of the word “rape” and the question of the absence of pain as well as the significance of the sounds made by the complainant. He developed an argument about the implausibility of the appellant’s evidence and the consistency of the complainant’s evidence both internally and with the evidence of Ms Peters and Mr TS.
He touched upon motive in a single sentence.
Devereaux SC DCJ did not refer to motive at all in his directions and, in particular, did not suggest to the jury, as the trial judge had done in R v W and R v Taylor, that they might consider the question “why would the complainant make the allegation if it was not true”.
The onus is on the appellant to demonstrate that there has been such a miscarriage. In this case, no direction about motive was sought by defence counsel and so, if the lack of direction resulted in a miscarriage, counsel’s conduct contributed to it. In such cases “it is necessary to exercise considerable care” in judging the significance of counsel’s conduct. The question is whether there could be a reasonable explanation for the course that was adopted. If there was, then there will have been no miscarriage of justice. Further, if a direction ought have been given, then there will only have been a miscarriage of justice if it is reasonably possible that the failure to direct the jury may have affected the verdict.
It is, therefore, necessary to consider the way the trial was conducted.
The complainant’s motive to fabricate an allegation was a minor and very weak part of the defence case and lack of motive was no part of the prosecution case. This is understandable because the motive that the complainant feared being assaulted by Ms Peters did not hold water. Ms Peters was protective of her immediately upon her interruption. She advised the complainant to go to her bedroom and lock the door. The complainant immediately left the house and sought comfort with Mr TS. There was simply no opportunity for there to be a spontaneous violent assault. The other motive was not even put to the complainant. Nor was its nature explained. There was no inquiry into the situation in their workplace, who was involved there, what their relationship might be to the complainant and Ms Peters, who would spill the beans to them and why, in the particular circumstances, the complainant might be embarrassed if it were known that she had slept with the appellant.
That being so, it is understandable why no direction was sought. It would draw attention to these grave deficiencies.
A client’s instructions must be put; however, having been put, counsel may well think that any damage those instructions might inflict upon the case can be best dealt with by minimising reference to the issue so raised. If, as may be inferred, those instructions involved asserting the two motives in the complainant in this case to lie, then those motives had to be aired. But it is understandable why a highly experienced defence counsel and the highly experienced trial judge did not regard a warning about the use of motive to be necessary or, indeed, desirable. Motive did not loom large and further reference might not have helped.
I am not convinced that any direction about motive was necessary. There was no risk that, absent such a direction, the jury might have reasoned from a rejection of motive directly to a conclusion that the complainant was telling the truth. For the same reasons, I am not satisfied that counsel’s omission to ask for such a direction was other than a decision taken for good reasons.
Finally, in any case, having regard to the evidence given by the three Crown witnesses, and the contrary evidence given by the appellant, attended by some evident difficulties in its delivery, I am not persuaded that the directions now said to have been necessary would have made any difference to the jury’s decision. There were ample reasons for the jury to reject the appellant’s evidence. He volunteered a vivid and fantastic sexual invitation from the complainant that had not been put to her. His description of her flirtatious acts had likewise not been put to her. He did not explain how these acts, which were very noticeable acts if they occurred, had not been observed by Ms Peters’, a woman whom the defence asserted was prone to jealousy. There was his odd answer to his counsel’s question about the appellant’s belief that the complainant had given her consent:
“And with respect to the sexual intercourse, what did you believe when you started to have sexual intercourse with her? --- What’s the word for it? One of the – was definitely consent.”
Once the jury had rejected the appellant’s evidence, as it must have done, it was left with the Crown evidence. In accordance with his Honour’s direction, that rejection did not inexorably lead to a verdict of guilty. The jury had to first be satisfied that the complainant was telling the truth. That depended, in part, upon whether the jury accepted that she might have been motivated to lie by fear of violence from Ms Peters or by fear of some kind of embarrassment. If the jury were minded to reject them, then there was nothing in this case, having regard to how those factors about motive were litigated, which would raise a concern that the jury might have reasoned along the impermissible paths outlined above.
I would dismiss the appeal.
HENRY J: I have read the reasons of Sofronoff P. I agree with those reasons and the order proposed.
CROW J: I have read the reasons of Sofronoff P and agree with the order his Honour proposes.
  QCA 27 at  and .
 Supra at .
 Supra at .
 R v Jansen  SASR 531 at 554.
  2 Qd R 300 at 306.
 Supra at 306.
 M v The Queen (1994) 181 CLR 487 at 535 per McHugh J; R v F (1995) 83 A Crim R 502 at 511 per Gleeson CJ, Grove and Abadee JJ; Palmer v The Queen (1998) 193 CLR 1 at  per Kirby J and cf. McHugh J in dissent at ; R v W  QCA 90 per Pincus JA; R v T  QCA 376 at  per Thomas JA.
 Hargraves v The Queen (2011) 245 CLR 257 at  per Heydon J.
  QCA 96 at 6.
 Palmer, supra, at , , .
 Palmer, supra, at ; cf. Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 per Gibbs “The fact that a witness is disbelieved does not prove the opposite of what he asserted… the result is simply that there is no evidence on the subject.”
 RPS v The Queen (2000) 199 CLR 620 at - per Gaudron A-CJ, Gummow, Kirby and Hayne JJ.
 (1952) 85 CLR 437 at 466.
 (1995) 83 A Crim R 502.
 (1998) 193 CLR 1.
  QCA 376.
  3 VR 567.
 supra, at .
  VSCA 183.
 Supra, at 29 per Callaway JA; see also The Queen v PFG  VSCA 130 at -.
 Dhanhoa v The Queen (2003) 217 CLR 1 at 49 per McHugh and Gummow JJ; Simic v The Queen (1980) 144 CLR 319 at 332 per Gibbs, Stephen, Mason, Murphy and Wilson JJ.
 Ali v The Queen (2000) 79 ALJR 662 at  per Hayne J with whom McHugh J agreed.
 Dhanhoa, supra, at  per McHugh and Gummow JJ.
- Published Case Name:
R v Bevinetto
- Shortened Case Name:
R v Bevinetto
 QCA 219
Sofronoff P, Henry J, Crow J
18 Sep 2018
- White Star Case:
No Litigation History