The Queen v T[1999] QCA 376

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 179 of 1999

Brisbane

THE QUEEN

v

T

Appellant

McMurdo P

Thomas JA

Chesterman J

Judgment delivered 10 September 1999

Separate reasons for judgment of each member of the Court; each concurring as to the order made

APPEAL ALLOWED. CONVICTIONS SET ASIDE. NO NEW TRIAL ORDERED.

1. MCMURDO P:  I agree with Chesterman J for the reasons given by him that the verdict is not unsafe and unsatisfactory.

2. As to the prosecution’s focus on the appellant’s inability to provide a motive for the complainant’s making and persisting in false accusations, I agree with what has been said both by Thomas JA and Chesterman J.  I agree that that error may have deprived the appellant of a significant possibility of acquittal and the convictions should subsequently be set aside.

3. Although this would ordinarily result in a retrial, this case is rightly described as a finely balanced one; there have already been two trials, one leading to a disagreement and one to a successful appeal; the appellant has served a substantial term of imprisonment in respect of these offences and is elderly and in poor health; the history of this case must also have taken its toll on the complainant and her family and friends.  I am finally persuaded that the interests of justice would not be served by ordering a retrial.  I agree with the orders proposed by Thomas JA and Chesterman J. 

4. THOMAS JA:  This is an appeal against convictions upon five counts of indecent dealing and one count of maintaining an unlawful sexual relationship.

5. Only three witnesses gave evidence in the trial - two for the Crown and one for the defence.  The Crown case consisted of evidence from the complainant and the complainant’s mother (who is the ex-wife of the appellant).  At the time of trial the complainant was 16 years old.  Her evidence concerned alleged incidents in 1993-1994 when she was aged 11-12.  Her mother was at time of trial a woman in her forties and the appellant a 65 year old man.

6. The complainant gave evidence of four (or arguably five) incidents alleged to have occurred at an address at Wynnum in 1993 and of one incident alleged to have occurred at Holland Park in 1994.  The mother’s evidence was mainly concerned with the dates when the respective parties lived at the relevant addresses and of her movements and those of the appellant.  She did not claim to have observed any conduct or attitude on the part of the appellant towards her daughter that caused her any concern.  She also described her relationship with the appellant, including her marriage to and divorce from him.  The appellant gave evidence confirming his presence in relevant households at various times and denied that any sexual impropriety in relation to the complainant had ever occurred.

7. There was no corroboration.  A jar of cream or a soap substitute which had been left behind at the household when the appellant went to Melbourne was produced as an exhibit as the complainant had alleged that he had rubbed such cream on her.  However the exhibit was entirely neutral.  There was no medical evidence.  Indeed the allegations were not such as to make medical evidence relevant, as they were confined to allegations of external touching with a hand or penis. 

8. Evidence was adduced, principally by cross-examination by defence counsel, that the relationship between the appellant and the complainant’s mother ended in February 1994, with some resentment on her part concerning his acquisition of a house and failure to make her a part owner.  The evidence suggests that the appellant had been of considerable help to the complainant’s mother, having married her in Greece and assisted in bringing her to Australia and assisting her financially and in other ways from time to time.  However their relationship was difficult to follow, largely because of the poor quality of the evidence and the difficulty of reconciling various disjointed statements that are not clearly in sequence or fixed in point of time.  A number of tensions arose between the appellant and the complainant’s mother at relevant times.  These included the consequences of his advancing money to her to enable her to buy a car.  After she had made seven repayments of $50 somebody put sugar in the petrol tank and she blamed the appellant for the incident and made no further repayments.  In November 1993 the appellant threatened to sue her for the outstanding money, and as already mentioned, they separated in February 1994 not long after his acquisition of a house at Holland Park.  The last offence was alleged to have occurred during an overnight stay by the complainant in this house.  Such an incident, if true, must have occurred not long before the separation.

9. In April 1997 the complainant’s mother told the appellant that the complainant had stolen a big amount of money from a friend.  The mother says that the conversation with the appellant  was unpleasant and that he reminded her that she owed him money for the car.  Subsequently she formed the opinion that the appellant was spreading stories about her.  In January 1998 she and the complainant went to the police and the complainant made her allegations.

10. The complainant admitted stealing money from a man named Z, who was one of the men with whom the complainant’s mother had relationships after she and the appellant had separated.  The complainant removed money from his wallet on numerous occasions.  Some time after being confronted by Mr Z about her thefts, the complainant told him that the appellant had molested her.  This would seem to have been in late 1997 and to have been the first occasion when any allegation of a sexual nature was raised against the appellant.  As Chesterman J has pointed out, this seems to have succeeded in mollifying Mr Z to some extent.  The complainant said that subsequently he “blurted out” her allegation in front of her mother and two other people on New Year’s eve and her mother subsequently took her to the police.

11. I propose now to consider whether any error occurred through cross-examination and comments by the Crown prosecutor on what was said to be the complainant’s absence of motive for false complaint and whether any error was later neutralised by directions by the learned trial judge.  I shall then examine the question whether having regard to the evidence and the conduct of the trial the verdict was unsafe and unsatisfactory, or to use the language of s 668E of the Criminal Code, “unreasonable”.

Motive for false allegation

12. I agree generally with what is written in paragraphs 16 to 31 of Chesterman J’s reasons.  In particular I agree that the Crown prosecutor erred in cross-examining the appellant as he did, and likewise in making capital during his address out of what he called inability to suggest motive.  I also agree that the directions that were given were not such as would undo the damage.

13. However the question of motive for a false complaint should not be regarded as territory which a Crown prosecutor may not enter.  In most if not all trials of this nature the critical question is whether the complainant is telling the truth.  In any such trial, and particularly when the contest is between the complainant’s version and a defence version which says nothing improper happened, and both corroboration and disproof are lacking, it is almost inevitable that counsel and for that matter the jury will seriously consider whether any motive exists for bringing a false complaint.  When it is shown that such a motive is likely, other things being equal this is likely to be the basis upon which a jury will entertain a reasonable doubt concerning the complainant’s veracity and will therefore acquit.  It is commonplace for defence counsel to canvass such issues.  I consider that defence counsel did so, albeit discreetly, in the present case.

14. In such a situation there is nothing improper in the Crown prosecutor attempting to counter such suggestions and to demonstrate and ultimately submit that the complainant did not have such a motive, or by any reasonable argument to endeavour to refute defence suggestions to the contrary.  What the Crown must not do, and what the court must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or that at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth.  I agree with the following comments of Pincus JA in W^[1]:

“Whether or not anyone turns the jury’s attention towards that topic, a jury may well give consideration to it and may ponder the problem of why a complainant in a sexual case, or indeed any other witness for either side, might invent his or her evidence.  There is nothing wrong with that approach; what must be avoided, in my opinion, is a summing-up which suggests to the jury that unless they can think of a good reason why a person complaining of an offence might make up his or her story they must be inclined to believe it, or one which says in effect that there is in truth no good reason to think the complainant has a motive to lie”.

15. W was a case where the defence put into issue certain possible reasons for a false complaint and where the learned trial judge’s directions adequately protected the defence from disadvantage in the event that the jury were not able to discern any such matters.

16. In my view it would be a mistake for Crown prosecutors to become unduly timid in dealing with matters of this kind which the defence may rightly raise.  It is important however that at all stages the potential damage recognised in Palmer^[2] be guarded against, perhaps by an early reminder by the learned trial judge that the defence has no onus in respect of such matters.

17. In the present case I agree that in a finely balanced trial the Crown went too far and the matter was not adequately corrected by directions from the learned trial judge.  In the circumstances of this case that error is sufficient to require the verdict to be set aside.

Whether the verdict is otherwise unsafe and unsatisfactory

18. Having reviewed the evidence in this case it must be said that the details given in evidence by the complainant are very vague and devoid of detail.  Five occasions were identified as having occurred at Wynnum, consisting of two occasions when having removed her pants the appellant rubbed her vagina with cream while they were both lying side by side on a bed facing one another while her legs were together; two occasions when she lay on top of him, on one of which she was dressed and on the other of which she was not; and one occasion when she sat on him.  On the latter occasions there was contact with his penis either directly or through his clothing.  She did not know on any occasion if his penis was hard or soft.  She did not know if he ever ejaculated but did not think so.

19. In her original statement, and under oath at the first trial (upon which the jury had disagreed), the complainant had claimed that the events at Wynnum occurred in January or February 1993, in summer time, and that on all such occasions, which occurred early in the morning before she went to school, her mother had already left to go to TAFE college.  However the defence had demonstrated at the previous trial that this combination of events was impossible, principally because it was established that the downstairs bedroom did not exist during that period and indeed that the appellant had only been in Brisbane, at least during the first half of that year, between late February and the end of April and that by the time he had left the downstairs accommodation had still not been completed.  Such details were of course one of the few facts in the complainant’s account that could be objectively disproved.  During the current trial the complainant was vague in her assertions as to the time when such events occurred.  It was however necessary for her to change her story to this extent in order to maintain the allegations.  In short, a worrying degree of unreliability was shown in her evidence as to time and place along with the commission of some acts of dishonesty on her part.  No corresponding weaknesses were shown in the appellant’s evidence or character.  Furthermore, whilst it cannot be said that any clear motive for a false complaint was demonstrated, the background evidence of tension between the three witnesses who gave evidence in this trial makes it a distinct possibility, as do the circumstances in which the complainant’s allegations first came to light.

20. If it were necessary to reach a conclusion on this question, I would with some hesitation regard the guilty verdict as unsafe and unsatisfactory, or in the words of s 668E of the Code, as unreasonable.  I have hesitated in reaching this conclusion as I think that the evidence in the present case falls very close to the borderline.  It is however unnecessary to consider on which side of that borderline the evidence actually falls, because the verdict must be set aside for reasons already given, and I do not consider that a retrial can be justified at this stage.  The appellant has already had two contested trials, the first resulting in a disagreement and the second in a miscarriage.  He has already served more than four months imprisonment in respect of these offences.  He is an elderly man in poor health.  Moreover on any view the capacity of the Crown case to sustain a safe conviction is very dubious.  In these circumstances I do not think that it would be in the interests of justice to put this appellant upon his trial for a third time. 

21. I would therefore allow the appeal, set aside the convictions and direct that there be no new trial.

22. CHESTERMAN J:  The appellant was tried and convicted in the District Court on an indictment which alleged six counts of indecently dealing with his step-daughter, a girl then under the age of twelve, and a further count of maintaining an unlawful relationship of a sexual nature with the girl.  The fourth count was withdrawn from the jury which convicted the appellant of the remaining offences.

23. The appellant urges two grounds of appeal.  The first is that the convictions are unsafe and unsatisfactory because:

1. the complainant’s version was uncorroborated;
2. no complaint was made for about four years; and
3. the complainant was shown to be of dubious honesty and her account of the offences was inaccurate in a material particular.

The second ground is that the trial miscarried because of the prosecutor’s emphasis in cross-examination and address on the appellant’s inability to provide any motive for the complainant to make false allegations against him.

24. The appellant was sentenced on each of counts 1, 2, 3, 5 and 6 to two years imprisonment to be served concurrently.  On count 7 he was sentenced to two and a half years imprisonment also to be served concurrently.  He had no previous criminal history. 

25. The appellant, who was an Australian citizen, had married the complainant’s mother in Greece in 1991.  The complainant and her mother, S, were citizens of the Slovak Republic.  They had gone to Greece as tourists and refused to return.  The appellant, while on holiday in Greece, met them.  S and he became friendly, and after an interval, they married.  Their relationship was unsettled and they spent much time separated.  The appellant was about sixty years of age, seventeen years older than S.  His home was in Melbourne but S had sisters in Sydney and Brisbane.  She eventually settled here and lived in a house at Wynnum with one of her sisters.  A flat was built downstairs for the separate residence of the appellant and his wife, though it was not certain that the marriage would persist. 

26. The complainant’s evidence was that the offences of indecent dealing, the subject of counts 1, 2, 3 and 5 occurred in the downstairs flat on school day mornings after S had left to attend a college course. 

27. The dates alleged were between 1 January 1993 and 1 November 1993.  No complaint was made until January 1998.  There was no corroboration for the complainant’s evidence.

28. It is apparent that the complainant was mistaken about the dates on which she alleged she had been indecently dealt with.  She had said it was in January and February of 1993.  However, the description of the offences was that they occurred in the downstairs flat, obviously when the appellant was living with her mother, and at a time when S was attending a college course.  Other evidence established that this combination of circumstances could not have existed until late June 1993.  The two time frames when the three circumstances coincided were between 21 June, 1993 and 21 July, 1993 and then 4 August, 1993 until 30 October, 1993.

29. The argument for the appellant is that the complainant’s mistake about the dates of the offences was critical to her evidence which must have been deprived of credibility when her error was exposed.  The convictions are said to be, for that reason, unsafe and unsatisfactory. 

30. The complainant admitted stealing money from a man by the name of Z with whom S took up co-habitation after she and the appellant separated.  She took money from his wallet on numerous occasions over a protracted period.  Her theft was eventually discovered and she was obliged to obtain a job in order to repay the money.  When confronted by Z with her dishonesty she told him of the appellant’s misconduct.  She did so for the purpose of deflecting his anger and to elicit his sympathy.  She seems to have succeeded.  When asked about it in cross-examination she was adamant that, although she told Z for the purpose mentioned, the substance of what she told him was true.  The jury was invited to disbelieve the complainant because of her admitted dishonesty. 

31. When the first ground of appeal is advanced the question which must be answered is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ... the ultimate question must always be the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

M v. The Queen (1994) 181 CLR 487 at 493-5.

32. Having read the record, particularly the evidence of the complainant and of the appellant, it appears to me that the question should be answered adversely to the appellant.  The evidence is not such as to give rise to an apprehension that there is a significant possibility that an innocent person has been convicted.  It was open to the jury to conclude that the complainant’s evidence was reliable despite her error as to timing and her admitted theft.  Her evidence of the offences was explicit and her description of the circumstances was attended by sufficient detail to allow the jury, if they were so minded, to think her account true.  Apart from the error as to the months of the year in which the offences occurred there is nothing in the complainant’s account which appears to “taint” it or make it appear inherently lacking in credibility.  Her mistake as to time was thoroughly explored before the jury who were invited to disbelieve her because of that demonstrated mistake.  It was a matter for the jury to decide whether they were satisfied beyond reasonable doubt the offences occurred at a time when the appellant was living in the downstairs flat with S and the complainant, who was attending school when her mother was attending college. 

33. The offence which was the subject of the sixth count was alleged to have occurred at a house in Holland Park between 1 January, 1994 and 1 July, 1994.  It was the only occasion of sexual misconduct in that house which had been purchased by the appellant in an unsuccessful attempt to effect a reconciliation with S.  That offence is not affected by the complainant’s particular error with respect to dates but, of course, all her evidence was said to be unreliable.

34. The trial judge very fairly warned the jury that they should scrutinise the complainant’s evidence with great care because of the inconsistencies it contained and because there was no corroboration for her allegations and no recent complaint.  His Honour said (R251.50-254.20):

“The critical issue for you the jury in this case is the truth and accuracy of the complainant’s evidence.  Preference for her evidence over the accused’s evidence or even disbelief of the accused’s evidence does not absolve you of your duty to acquit on all charges unless you are satisfied beyond reasonable doubt of the credibility and accuracy of the essentials of the complainant’s evidence. 

Ladies and gentlemen, there is a risk of accepting the complainant’s evidence in this case and I warn you that you should not convict the accused on anything unless you scrutinise her evidence with great care and heed the warnings that I’m about to give you in relation to her evidence.  There have been inconsistencies in her account, ...

There is no corroboration for the complainant’s version, and I’ve explained to you what “corroboration” means.  There is no evidence of recent complaint, and I’ve explained to you what that means ...

There is evidence that the complainant is a dishonest person in that she has admitted to having stolen money ...

I do not say ... that you cannot convict on the complainant’s evidence, that is your province not mine, and I do not want to unnecessarily intrude upon that.  What I do say, however, is that ...you should only convict after scrutinising her evidence with great care and heeding these warnings that I have given you concerning her evidence.”

Later in the summing up his Honour repeated the warning in summary form (R258.30-.40):

“The crucial issue is, as you will now all be aware, is whether the complainant can be believed, beyond reasonable doubt, as to whether these things, in fact, happened.  That seems to be, and is, the real issue in the case.”

35. Not uncommonly in cases of this type the complainant’s evidence was unsupported and the accused denied all wrongdoing.  The case was a finely balanced one.  However it was the jury which held the scales.  I am not persuaded by my reading of the evidence to conclude that they could not reasonably have accepted the complainant as a truthful witness.

36. In my opinion this ground of appeal is not made out.

37. The second ground complains that the prosecution in its cross-examination and subsequent address focused on the appellant’s inability to provide a motive for the complainant’s making and persisting in false accusations.  The prosecutor sought to bolster the complainant’s credibility by reason of that inability.  It is submitted that the issue is a false one such as to be likely to mislead the jury and deprive the appellant of a legitimate chance of acquittal. 

38. The matter appears to have developed in this way.  When cross-examining the complainant, counsel for the defence, to use his own phrase, “scratched around” for a basis for submitting that the complainant had a motive for concocting the allegations.  Nothing was found except, perhaps, her motive for revealing the incidents to Mr Z.  The complainant was adamant that what she told Z was true.  There was also some evidence that S was determined to make a success of her life in Australia and may have exhibited some ruthlessness in her use of people to achieve her ambition.  The effect was unsettling on the complainant who appears to have felt awkward and unaccepted in her schools and suburbs.  A hint was made that the complaint was a means of obtaining attention and sympathy.

39. When cross-examining the appellant the prosecutor asked (R146.15-.28):

“So there was nothing happened in the interim to make her dislike you as far as you know? --  No.

You can’t think of any reason why she would make up these terrible lies about you? --  I know why she make them, [they] push her into it.

It is all her mother’s doing, is it; is that right? --  Mother’s or boyfriend’s or whatever.

So someone has got her to do it to you? --  That is what I believe.”

40. In address defence counsel put to the jury (R201.30-.36):

“For the most part, I’m going to talk about the girl but it’s absolutely essential that you carefully consider the evidence of the mother and the personality and character of the mother because it may be that rather than her being able to point to a specific incident or a particular motive for this false allegation emerging, it’s something that’s come out of the shadows that the mother has cast.  And I’m not there talking about specifically putting her up to making the complaint but just the whole circumstances of the girl’s life have led to the remarkable false complaint.”

At R210.30-.35 he continued:

“But turn now to the mother.  That’s a reasonable point to make the move.  I put the suggestion that there may be a subtle motive behind all this by the daughter that has its origins in the mother ...”

41. The prosecutor’s argument was clear.  He said (R219.21, .35, .58):

“The whole case gets down to whether or not you are prepared to accept the word of the complainant ...

Remember she is endeavouring to relate to you, now for the third time, you have heard.  It has been before a Magistrate’s Court, there has been a previous trial ... for a third time to a complete group of strangers in this very formal atmosphere, very detailed intimate and upsetting things, things that happened a long time ago, things that happened many times.  I would simply ask you to bear that in mind ...

The question for you is who is telling the truth, it’s as difficult and as easy as that.  You see, someone is lying.  Either she is lying or the accused is lying. Unfortunately it’s a fact of life, it happens.  Unfortunately it is your duty to try to sort out the wheat from the hay ...”

He went on (R220.38-.45):

“What was your reaction to her ... Was that the practised evidence of an actress, a cunning, conniving, deceitful young woman who was prepared to get into the witness box and [perjure] herself for no apparent reason?  Or was your reaction to her, why on earth was she making this up, it certainly sounded believable?

There is no motive suggested her, other than some fanciful product ... by [defence counsel’s] imagination.  You see, the accused would attempt to say that it was a conspiracy between her and her mother and it was all put up by her mother.”

Having dealt with the error of dates and argued that it was not indicative of dishonesty the prosecutor said (R222.58):

“... Why would she persist with the allegation?  Why would she persist with saying ... it was before he went to Melbourne. ”

A little later her returned to the theme (R224.18)

“... you have to carefully assess [the complainant’s] evidence.  What your reaction to her was when she gave evidence.  She persists with the allegations.  You’ve heard she’s had a committal, this is the second trial.  She was cross-examined at length ... ”

His last word on the subject was (R225.40):

“It might show the desperation that has to be gone to to try and say, ‘Why on earth did this girl go through with this if it wasn’t true?’ ”

42. The implication in the prosecutor’s questions, and his argument to the jury, that the complainant’s evidence gained credibility because the appellant could not supply a motive for inventing the complaint, were impermissible.  They were irrelevant to the issue whether the Crown had proved beyond reasonable doubt that the appellant committed the offences with which he was charged.  The tactic is pernicious because it implies that an accused bears an onus of proving a false motive which, if not discharged, leads to acceptance of the complainant’s evidence.  The topic was discussed by the High Court in Palmer v. The Queen (1998) 193 CLR 1.  In their joint judgment Brennan CJ, Gaudron and Gummow JJ said (at 6, 7):

“Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations ... 

It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie.  It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant ... the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant ... might be inferred is generally irrelevant.

If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is ‘oath against oath’.  In such a case, to ask an accused the question: ‘why would the complainant lie?’ is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused.”

43. Their Honours addressed the second mischief on page 9:

“... as the question is irrelevant to any issue in the case, it ought not be asked.  As Hunt CJ at CL pointed out in R v. Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996 at 15-16) to ask the question ‘Why would the witness lie?’:

‘invites the jury to speculate ... to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict ... that danger of such illegitimate speculation is a sufficient reason for saying that of the rhetorical question should not be raised ...’

... a complainant’s account gains no legitimate credibility from the absence of evidence of motive.  If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished.”

44. The prosecutor’s question to the appellant and his address to the jury, particularly those passages at R220 and 225:

“There is no motive suggested here, other than some fanciful product ... [of] imagination ...

It might show the desperation that has to be gone to to try and say, ‘Why on earth did this girl go through with this if it wasn’t true?’”

offended against the prohibition.  The point was irrelevant and was illegitimately used to bolster the credibility of the complainant in a case in which she was shown (a) to be unreliable in a material particular; and (b) to have been seriously dishonest in a matter of money; and one where (c) the jury was told, unhelpfully, that either the complainant or the accused was lying and it was their task to choose between them. 

45. Two points are advanced to answer the claim that the conduct of the prosecution led to a mistrial.  They are that a sufficient direction was given to overcome the effect of the illegitimate enquiry, and that the prosecution tactic was a response to the defence probing in respect of motive. 

46. Brennan CJ, Gaudron and Gummow JJ had said in Palmer (at 9):

“A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry”.

At the conclusion of addresses (the prosecutor addressed second) defence counsel alerted the trial judge and his opponent to the lurking problem.  A discussion ensued from which emerged a form of direction which it was agreed should be included in the summing up.  The directions were included (R 254.29-255.12) in these terms:

“The Crown prosecutor said ... that the complainant had stuck to her story on a number of occasions.  I direct you that that does not necessarily mean she is telling the truth, nor does it necessarily strengthen the Crown case.

The defence has pointed to a number of matters, so have I, indicating that the complainant may have had a motive to make false allegations.  This in no way reverses the onus of proof ... The defence does not have to prove anything.

If you think the reasons put forward for possible lying on the part of the complainant are not reasonable you must still be satisfied, beyond reasonable doubt, about the truth and accuracy of the essentials of the complainant’s evidence before you convict the accused on anything.  And you must remember that there may be reasons, apart from those referred to for the complainant telling lies.  The complainant does not gain credibility by either the absence of a proven motive, or that she has repeated a certain story.”

47. The direction does not in fact address the problem which the High Court identified; which is that a jury may be misled into thinking that unless an accused establishes, by his own evidence, a motive for a false complaint the complainant’s evidence should be believed.  This is why questioning an accused about his knowledge of any such motive is forbidden.  It implies the accused has an onus of proving the motive.  The direction did not come to grips with this point.  It correctly explained:

1. persistence in an allegation did not indicate its truthfulness;
2. an accused’s attempt to show a motive for falsehood did not put any onus of proof on the defence;
3. the accused’s failure to prove a motive did not absolve the jury from the task of deciding whether the offences had been proved beyond reasonable doubt.

There was no mention, however, of the critical element: what was to be made of the fact that the appellant himself could not offer any evidence of motive?  The trial judge did not refer to the cross-examination of the appellant on the topic, or to the prosecutor’s arguments.  It was not explained to the jury that the question was irrelevant and the argument was mistaken.  Nor were they advised of the danger of falling into error from an inverted onus of proof.  No reference was made to the distinction between questioning the complainant about her motives for making a complaint and interrogating an accused about his ignorance of those motives.

48. The direction did not satisfy the description of “firm and clear”.  The trial judge is not really to be criticised for it.  His Honour gave the direction in the terms which were agreed upon by both prosecutor and defence.  It was, however, insufficient and did not overcome the potential for a mistrial created by the prosecution’s misplaced emphasis.

49. Nor does it matter that the appellant’s counsel acquiesced in that form of direction.  Its insufficiency is not rectified by the fact that at the time the appellant’s counsel thought it was good enough.  See the authorities collected by Kirby J in Palmer at 37, footnote 98.

50. The second point should also be answered in favour of the appellant.  It is clear from the discussion in Palmer that the examinations of complainant and accused as to motive for lying stand on different bases.  The questioning of the complainant is admissible because of the obvious relevance of motive for a false complaint and the complainant’s knowledge of her own motive.  The inability of the accused to adduce evidence of such a motive is irrelevant, except in those cases where the motive is such that, if it existed, the accused must know of it (Palmer at 7).  In other cases the question is irrelevant and ought not to be asked because “absence of proof of motive is entirely neutral” (Palmer at 9).  An accused’s ignorance of motive does not become relevant because the defence does seek to establish such a motive from cross-examination.  Such an attempt would permit a prosecutor to respond by evidence and address with respect to the suggested motives for dishonest complaint but not, as was done here, to embark upon the separate task of inviting the jury to believe the complainant because the accused could not give evidence of motive.

51. This seems to be implicit in the majority judgment in Palmer.  It is explicit in the judgment of Kirby J.  At 36 his Honour posed the question:

“If otherwise not permissible, was it rendered permissible by the way in which cross-examination of the complainant had opened the question up?”

Kirby J then assembled the arguments for and against allowing questions to be addressed to the accused as to his knowledge of motive and concluded (at 43):

“... I have concluded that it would not be harmonious with the principle adopted in Robinson v. The Queen 180 CLR 531 to permit questions to be asked or suggestions to be made that the accused’s evidence is weakened, or the complainant’s strengthened, by the inability of the accused to explain why the complainant would lie.  In Robinson, this Court adopted a rule forbidding questions or comment which would suggest that the accused’s evidence, denying the offences charged, is to be the subject of close scrutiny because of the interest which the accused necessarily has in the outcome of the trial ... If the one is forbidden ... it is impossible, as a matter of principle, to permit the other.  Each has a tendency to undermine the protection afforded by the burden and onus which rest upon the prosecution throughout the trial.”

52. The error in the prosecution occurred in a case which, as I have described it, was finely balanced and where the trial judge thought it necessary to alert the jury to a number of circumstances which might make them hesitate to accept the complainant’s evidence.  In that context an invitation to believe her and to find the case against the appellant proved beyond reasonable doubt, on the basis that the appellant could not demonstrate why she should make up her story, is such as to have deprived the appellant of a significant possibility of acquittal.  The convictions should be set aside.

53. I have been concerned whether the appellant should be retried.  Logically such an order should follow from the conclusion that, although the prosecution case had substantial deficiencies it was open to a jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  I note that Thomas JA is of the opinion that the jury could not reasonably convict on the evidence of the complainant which was all the prosecution can rely upon.  The disagreement underscores the difficulty in deciding on which side of the borderline the evidence falls.  For that reason together with the other matters identified by Thomas JA in paragraph 20, I would concur that the appellant should not be put on trial for a third time.