The Queen v E[1997] QCA 99

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 013 of 1997

Brisbane

THE QUEEN

v.

E

Appellant

Davies JA

McPherson JA

Mackenzie J

Judgment delivered 2 May 1997.

Joint reasons for judgment of McPherson JA and Mackenzie J., separate concurring reasons of Davies JA

APPEAL ALLOWED; CONVICTIONS AND VERDICTS SET ASIDE; AND A NEW TRIAL ORDERED.

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 2 May 1997

I agree with the joint reasons for judgment of McPherson J.A. and Mackenzie J. and with the orders they propose.

JOINT REASONS FOR JUDGMENT - McPHERSON JA & MACKENZIE J

Judgment delivered 2 May 1997

In December 1996, the appellant was convicted after a trial in the District Court of nine counts of indecently dealing with a girl, who was his niece.  The offences were alleged to have taken place on dates between January 1978 and December 1984 at times when the complainant was between eight and 14 years of age.

The main ground of appeal, as it is described in the appellant’s written outlines, is that the verdicts were unsafe and unsatisfactory.  The complainant’s evidence was not directly corroborated; her first complaint about the matters of complaint was not made until some time had elapsed; and the events about which she gave evidence at the trial had all happened some 13 to 20 years before.  At the trial a considerable number of witnesses was called and testified.  In the prosecution case, some members of the complainant’s family also gave evidence that supported the complainant but did so only in relation to peripheral matters, such as the appellant’s opportunity for committing the offence on particular occasions.  Similarly, members of the appellant’s family gave evidence that in some respects contradicted that of the complainant or those who supported her, but again only as regards acts or events that were related indirectly, rather than directly, to proof of the offences charged.  Overall, it can fairly be said that, although, some inconsistencies were revealed in the evidence of both principal protagonists at the trial, none of the discrepancies disclosed in that way can be considered so serious as to have destroyed the credibility of either the complainant or the appellant. In the end, as so often happens in prosecutions of this kind, the jury were left with the task of deciding, essentially on the basis of the impression they formed of the credibility of those two witnesses, whether the prosecution had established the charges beyond reasonable doubt.

If the matters stood there, it would no doubt be difficult for this Court to interfere with the verdicts were it not that, on appeal, the appellant was given leave to amend the notice of appeal by adding further grounds, of which it is sufficient now to consider only ground 1A.  It is expressed in the form that the learned trial judge erred in his summing up by leaving for the consideration of the jury the question, “Why would the complainant lie?”.

The principal target of this ground of appeal is the following passage in the judge’s summing up:

“Crown counsel asked, why would the complainant put herself through this knowing what she would be put through, particularly after the magistrates court hearing?  Why would she come to this Court for an unpleasant experience in relation to her own uncle.  If her own uncle did not do this and she got on quite well with him otherwise, why did she put herself through this and continue to put herself through this?”

A direction on somewhat similar lines has recently been the subject of adverse judicial comment in two decisions at appellate level.  In R. v. G. [1994] 1 Qd.R. 540, 544-545, the summing up under review contained a direction to the jury that referred to the complainant’s evidence in the following terms:

“You will also take into account the evidence here and any differences, any inconsistences, can they be explained away by mistake or stress, or are they explained away because the complainant is unreliable or because he is a liar; because he is a wicked malicious person who for some reason or other, or for no reason at all, has decided to make an allegation of one of the most serious offences on the criminal calendar against his own father?”

As Davies JA pointed out ([1994] 1 Qd.R. 540, 543), a direction like that could have led the jury to think that, unless satisfied that the complainant was a liar, they should convict; and that the trial judge had failed to indicate that there was a further possibility; namely, that they might not be satisfied beyond reasonable doubt that the complainant’s story was true.  In the opinion of Davies JA the judge’s failure to present that possibility to the jury amounted to a misdirection.  A further direction given in the summing up in R. v. G was:

“You have heard submissions on why would the complainant make this up against his own father and put himself through this?”

As to that Pincus JA, with whom Davies JA agreed on this point ([1994] 1 Qd.R. 540, 545), said that a direction in those terms might be taken as implying that a young complainant in a sexual abuse case was unlikely to invent and adhere to allegations of the kind made by him against his father, and that such a direction, which was erroneous, might have influenced the jury in arriving at their verdict of guilty.

A similar question was considered by the Court of Appeal in New South Wales in R. v. E (1996) 39 N.S.W.L.R. 450, where (in reasons which were concurred in by Handley JA and Abadee J.) Sperling J. identified three basis of objection to directing a jury in those terms.  His Honour said (39 N.S.W.L.R. 450, at 464):

“It needs to be emphasised that we are dealing here with a case where there is no direct evidence of an actual motive to lie, nor evidence from which a specific motive to lie could reasonably be inferred.  To ask, ‘Why would he or she lie?’ in such a case is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood.  That is not to try the case on the evidence, but to speculate concerning unproven facts. The absence of evidence of a motive for lying and of a plausible explanation for lying is not proof that there was no motive for lying.  Yet to pose the question at all is to give legitimacy to that method of reasoning and to that conclusion.

Secondly, the question is unfair to the accused. How can the accused or his counsel be expected to see into the mind of the complainant, and be held accountable for failing to discern whatever motive there may be for a false story?  The task imposed by the question is particularly unfair when the complainant is a child.  In B. v. The Queen (1992) 175 C.L.R. 599 at 616, Dawson J. and Gaurdon J. recognised ‘the fact that young children ... are apt to allow their imaginations to run away with them and to invent untrue stories ...’.

Thirdly, the effect of the question is to reverse the onus of proof.  The question implies that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant’s evidence and convict.  In R. v. G. [1994] 1 Qd.R. 540, the trial judge had posed for the jury’s consideration whether the complainant’s evidence could be explained away because, ‘for some reason or other, or for no reason at all’, the complainant had decided to make a false allegation. On appeal, Davies JA said (at 543) that this passage could have led the jury to think that, unless they were satisfied that the complainant was a liar, they should convict; the direction by-passed the possibility that the jury might not be satisfied beyond reasonable doubt that the complainant’s story was true.  I respectfully agree with Davies JA’s analysis.”

It ought perhaps to be mentioned that in the passage quoted from the summing up in the present case, the trial judge was evidently repeating the effect of a submission made by counsel for the Crown in the course of his address to the jury.  However, by doing so without criticising or correcting it, his Honour conferred on it a degree of legitimacy to which it was not entitled and which it might not otherwise have enjoyed.  The same is true of what had been said by the judge in the summing up in R. v. G.; but, as Pincus JA there observed, the passage in question was, in consequence, capable of being considered as a direction by the judge that the argument presented by counsel was one that might properly be accepted by the jury.

The fundamental vice inherent in the direction adopted in those cases and in this is that, particularly where the task of assessing credibility is not necessarily an easy task, it presents the jury with a facile method of reaching a verdict but one that is fraught with the risk of serious injustice to the accused.  In substance, it constitutes an invitation to the jury to conclude that the allegations would not have been made if they were not true.  In a criminal case, such reasoning has a real potential to reverse the onus of proof, and to do so in a way that is open to much the same objection as a direction that the credibility of an accused person is to be assessed according to his obvious interest in the outcome of the proceedings against him. See Robinson v. The Queen (1991) 180 C.L.R. 531, which in R. v. G. [1994] 1 Qd.R. 540, 545, Pincus JA referred to as affording a possible analogy with a direction of this kind.

Taken as a whole, the summing up in the present case was, factually speaking, detailed and painstaking.  The direction in question appears in a portion of it where the judge was directing attention to a particular count in the indictment.  It was, however, not specifically restricted to that count, but was expressed in general terms which were capable of being regarded by the jury as equally applicable to the other counts against the appellant.  It is true that no redirection was sought in respect of it at the end of the summing up; but, although that is always a consideration that weighs against an appellant, it is, in this instance, one that cannot be allowed decisive significance.  In criminal proceedings the “golden rule” that the onus of proof rests on the prosecution throughout the trial is so fundamental that the effect of misstating it is not often capable of being accommodated by applying the proviso to s. 668E(1) of the Criminal Code.

The question remains whether a retrial should be ordered.  To subject those involved to the additional stress and (in the appellant’s case) expense of yet another trial is a course not lightly to be undertaken.  Nevertheless, the matter is one in which the admissible evidence at the original trial was, if the jury accepted the complainant as a reliable witness, sufficiently cogent to justify conviction, and any injustice in making the appellant stand trial for a second time is, we consider, outweighed by the need to protect the public interest in the proper administration of justice.  See Director of Public Prosecutions (Nauru) v. Fowler (1984) 154 C.L.R. 627, 630.

It follows that the appeal should be allowed; the convictions and verdicts set aside; a new trial ordered.