R v Knight

This case considered the relevance of the absence of evidence of an apparent motive to lie in the assessment of a complainant’s credibility, in a case where the prosecutor had referred to the lack of such a motive in his closing address. The trial judge did not direct the jury to ignore the lack of evidence of a motive to lie. It was held that the absence of any such motive was irrelevant to the assessment of the complainant’s evidence and the jury should have been directed on this point. A retrial was therefore ordered.

Gotterson and McMurdo JJA and Mullins J

23 May 2017

The appellant was convicted of five counts of indecently dealing with a child under 16 years of age. [1]. All counts concerned the same child. [2]. He appealed his conviction on the ground that a miscarriage of justice had been occasioned by the Crown Prosecutor stating that the complainant had no motive to lie, and further that the direction by the trial judge to the jury on this subject constituted an error of law. [17].

The focus of the appeal concerned remarks made by the Crown Prosecutor in his closing address, in response to the defence case that the complainant had made up the allegations against the appellant and was not telling the truth:

“Now, in assessing [the complainant], I’d ask you to ask [or] to think could she have made all of this up? At the time of the offending, she was 11 going on 12. At the time that she reported the matter and was interviewed by the police, she was nearly 13. One year had passed. The defendant had moved away. There was no apparent motive for it. Now, there can be motives which are unknown to anyone but, certainly, there was no apparent motive for her to have done so” (emphasis added). [21].

The trial judge directed the jury as to the onus of proof and that if they were to reject the motive to lie advanced by the defence that did not mean that the complainant was telling the truth. [23].

The appellant submitted that it was not appropriate for the prosecutor to have told the jury that the complainant had no motive to lie, and that this “operated, in effect, to reverse the onus of proof”. [26]. The appellant submitted that a specific direction was required to instruct the jury to put motive out of their minds, and to remind them that “there could be many possible reasons why a person might make a false complaint and that, in any particular case, where there was a motive that had actuated the making of a false complaint, the accused may not know of it”. [27].

Gotterson JA (with whom McMurdo JA and Mullins J agreed) began with the principle in Palmer v The Queen (1998) 193 CLR 1 “that a complainant’s account gains no legitimate credibility from the absence of evidence of motive to lie”. [36]. Instead, the correct view is that the “absence of proof of motive is entirely neutral”. [36]. Gotterson JA also noted that in R v Kostaras (2002) 133 A Crim R 399, the Full Court of South Australia (Doyle CJ with whom Wicks and Besanko JJ agreed) held that these observations applied “with equal force to the prosecutor’s address to the jury”. [39].

His Honour was of the view that “the remarks of the prosecutor in his closing address in this case impermissibly transgressed the principle”. [40]. The rhetorical question whether the complainant could have “made all of [it] up” (extracted above) was followed by two references to the absence of an apparent motive for the complainant to have done so. [40]. Those words “conveyed to the jury that the absence of evidence of an apparent motive was relevant to their assessment of the credibility of the complainant’s evidence”, and that “the complainant’s evidence was the more credible on account of the absence of evidence of an apparent motive to lie”. [40].

His Honour also considered that the jury should have been directed expressly that the absence of evidence of a motive to lie was irrelevant to the assessment of the complainant’s credibility. “It was both appropriate and necessary to direct them that that was entirely neutral”. [41]. As no such direction was given in this case, the directions given were insufficient and failed to “neutralise the prejudice to the appellant arising from the prosecutor’s remarks”. [42], [46].

The appeal was allowed, the convictions set aside, and a retrial ordered on all counts. [48].

J English