Jovanovic Direction

Hunt CJ at CL

At 1

The appellant (Anthony Robert Uhrig) was charged in the District Court with three separate sexual assaults upon his male companion (Geoffrey Michael Smith, also known as Jason Lee Phelps), the second of the three immediately after he had maliciously inflicted actual bodily harm upon the complainant. The jury found the appellant not guilty of the first and third of those charges, but guilty of the second (more serious) charge. Judge McGuire imposed a total sentence of penal servitude for two years, consisting of a minimum term of eighteen months and an additional term of six months.

At 13

Ground of Appeal 2 complains that the judge erred by inviting the jury in his summing up to consider a Crown submission concerning the absence of any suggestion by the applicant of any motive for Ms Priestley to tell lies. Ms Priestley was the sister of the applicant's fiancee, and the person who confronted the accused with a number of allegations of sexual assault upon the complainant which, for the reasons already identified, the applicant did not deny. What the judge did say was this:

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At 15 and 16

There remains, however, some danger in the simple rhetorical question, why would the witness lie? This was discussed in some detail in the recent decision of this Court in Regina v E. Sperling J (with whom the other members of the Court agreed) described the illegitimacy of the question to this effect. The rhetorical question "Why would the witness lie?" implies its own answer, that there is no apparent reason why the witness would lie. That leads the jury to infer that, there being no apparent reason, there was in fact no reason, and then to conclude that, as there was no reason to lie, the witness must be telling the truth. Sperling J went on to hold that, in a case where there is no direct evidence of an actual motive to lie, or evidence from which a specific motive to lie could reasonably be inferred, the rhetorical question should not be permitted to be raised for the jury's consideration, because it invites the jury to speculate in the illegitimate way already described 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. In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case. His Honour gave other reasons, some of which (with respect) I would not necessarily endorse, but it is unnecessary here to consider them.

At 16 and 17

What this Court said in Regina v F and in Regina v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all.

In the present case, there was no basis for asserting that Ms Priestley had a motive to lie. In my view, what the judge said clearly did invite the illegitimate speculation to which this Court referred in E's Case. There was a dispute between the evidence of Ms Priestley and that of the appellant in relation to the teens of the conversation which preceded the taped conversation. I am satisfied that, in the circumstances of this case, the direction led to a miscarriage of justice so that the appellant is entitled to rely upon this ground of appeal, notwithstanding that no point was taken at the trial. I would therefore uphold Ground of Appeal 2 as well.

Newman J

At 24

I agree with both the orders proposed and the reasons given by the presiding judge.

Ireland J

At 24

I also agree.

Priestley JA (would allow the appeal)

At 521

So far as concerns ground 3, I think the critical point can be decided by reference to R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported). In that case Hunt CJ at CL discussed the authorities bearing on the question when and when not arguments relating to a motive to lie on the part of a complainant or witness may be put to a jury. Two of the principal authorities were R v F (1995) 83 A Crim R 502 and R v E (1996) 39 NSWLR 450.

Hunt CJ at CL identified two main situations. One is the case “where there is no direct evidence of an actual motive to lie, or evidence from which a specific motive to lie could reasonably be inferred …” (at 16). The other case is where a motive to lie is asserted in relation to the evidence of the complainant or witness.

In the former case, to allow the question to be put to the jury in address “Why would the complainant lie?” is to run the risk that the jury may think it open to them to infer that because the complainant had no apparent motive for lying that fact of itself showed the complainant was telling the truth. Hunt CJ at CL's opinion (in my view in accordance with the authorities) was “that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case”: see at 15-16.

At 522

Hunt CJ at CL in the long paragraph above set out recognised that the two main types of case could overlap where, for example, a motive to lie on the part of a vital witness had been asserted by the accused, and it would be open to the jury to reject that asserted motive. In such a case, he said, “it would be appropriate” for the judge to direct the jury that if they rejected the motive that did not mean the witness was necessarily telling the truth and to emphasise that the Crown still had to satisfy them the witness was telling the truth. In the light of the totality of his discussion of this point in his reasons, I think “appropriate” was being used here in the sense of something necessary to be done in the circumstances. If it were not done it would be left open to the jury to proceed to the illegitimate speculation proscribed in the first class of case.

At 523

This is sufficient to lead me to the same conclusion in regard to ground 3 of the appeal as that reached by Sperling J. I agree with him also that the correctness of R v E should not be considered in this case. I accept the way in which it was explained in R v Uhrig as correct.

I therefore agree with the orders proposed by Sperling J.

Cole JA (would dismiss the appeal)

At 523

I have had the advantage of reading in draft the judgment of Sperling J. I agree with his Honour in that ground 5 should be rejected. However, I am unable to agree that ground 3 should be upheld.

Ground 3:

(a)His Honour erred in declining to discharge the jury after the Crown Prosecutor in her final address submitted that there appeared to be no reason why the complainant would fabricate his evidence.

(b)His Honour erred in inviting the jury to consider that submission made by the Crown Prosecutor.

It is important to appreciate the nature and course of the trial. The appellant was charged with three counts of homosexual intercourse. Not unusually, there were no independent or corroborative witnesses. The outcome of the trial was thus dependent upon whether the jury accepted the complainant's evidence, he being a fifteen-year-old boy, so as to discharge the onus on the Crown to establish guilt. The appellant gave sworn evidence denying each alleged act of non-consensual intercourse and accompanying violence.

At 526

After the Crown Prosecutor's address had concluded, counsel for the appellant sought a discharge of the jury on the basis that she had said to the jury: “Why would the boy make these things up? What reason could he have for doing it?” Reliance was placed upon the decision of Hunt CJ at CL in this Court in R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported). The trial judge rejected the application expressing the view that the question why a complainant would fabricate serious allegations would, as a matter of commonsense, be in the forefront of the jury's deliberations.

At 527

The law in relation to the appropriateness of a trial judge addressing the question in his summing-up “Why would the witness lie?” is, in my respectful opinion, correctly analysed by Hunt CJ at CL in R v Uhrig. His Honour discussed both R v F (1995) 83 A Crim R 502 and R v E (1996) 39 NSWLR 450. I respectfully agree with his Honour that R v F was a very special case, and that case is no authority for the proposition that it is never permissible for a trial judge to address the question: “Why would the witness lie?” Further, I agree with Hunt CJ at CL that R v E was an unusual case in which there was no basis for asserting that the witness did have a motive to lie, and where the question was raised for the first time by the prosecutor in address. That is quite a different factual situation to the present case where the complainant himself had raised the issue of “why would I lie”, and the accused had, in evidence, ascribed a motive. R v E is thus to be distinguished from the present appeal.

At 527 and 528

For my part I do not find that logic persuasive. The argument depends entirely upon the premise that by posing the question “Why would the witness lie” one is asking a rhetorical question to which the answer is implied that there is no reason why he would do so. I do not think that conclusion follows at all. A mere inquiry regarding why a person adopts a course of conduct does not necessarily suggest the answer, and such a question is not necessarily rhetorical. Commonsense and general experience indicates that when one is considering a person's actions one tends to consider reasons for those actions. Where, as here, when the question is posed by the complainant: “Why would I make accusations like this if they never really happened?” (a question different to “why would I lie?”, because it asserts a reason for not lying), and the accused responds in evidence by suggesting a motive, it can no longer be said that the question remains either rhetorical or that it suggests its own answer, or if it does suggest an answer that answer is challenged by the accused ascribing a motive.

Sperling J (allowing the appeal)

At 535

The gravamen of the question, “Why would the complainant lie?” is that it suggests an answer and is, therefore, in substance, a positive argument. The argument is that because there is no apparent reason for the complainant to lie, the complainant is likely to be telling the truth and should, therefore, be believed. The reasons why an invitation to follow this line of reasoning is illegitimate in a criminal trial were provided in R v E (1996) 39 NSWLR 450 at 461-466, and affirmed in R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported). For a further illustration of the need to trim the sails of everyday thinking to the winds of legal principle: see now R v OGD (Court of Criminal Appeal, 3 June 1997, unreported).

At 535

Neither the reservation in R v E nor the reservation in R v Uhrig detract from the point that it is not permissible to invite the jury to bolster the complainant's credibility with an argument that there is no apparent reason for the complainant to have lied. That line of reasoning — being in support of the complainant's credibility — cannot be justified by pointing to a legitimate area for debate as to whether — as against the complainant's credibility — the complainant had some particular motive to lie.

Neither R v E nor R v Uhrig should be read as justifying an impermissible line of reasoning whenever the quite different question of a particular motive to lie is raised at a trial. That should only have to be stated to be apparent. The existence or non-existence of a particular motive to lie can be debated without inhibition at the trial without contravening the principle that truthfulness is not to be inferred from the absence of any apparent motive to lie.

At 538 and 539

The first thing to be noticed about the relevant passage in the summing-up is that his Honour recognised that what he was conveying to the jury was an argument. He described it as “a reasonable argument”. The argument, he said, was the question: “Why would this young man make the allegations he has?” That only makes sense if the question was a rhetorical one, suggesting its own answer.

In the course of argument at the hearing of this appeal, counsel for the Crown was asked what the Crown said “the argument” was, if it was not that, there being no apparent reason for the complainant to lie, he must be telling the truth. The answer was that the argument was either of the following: first, that, the witnesses having sworn to tell the truth, prima facie he had done so; or, secondly, that the particular motive suggested in evidence (the scapegoat point) might be true.

The first suggested meaning is, on analysis, not an alternative meaning. A witness may say what he or she says either because it is true or because there is a motive to lie. (The further possibility of honest error of recollection can be put to one side for present purposes.) To ask why a witness might not be telling the truth and to say that is an argument, is to suggest the very line of reasoning which is criticised in R v E and R v Uhrig.

Furthermore, to instruct a jury to start with the presumption that a Crown witness is telling the truth is inconsistent with the concepts underlying a criminal trial, embodied in the standard directions concerning onus of proof and the jury's obligation to consider what evidence to accept and what evidence to reject. Juries are correctly encouraged to be sceptical. They should not be encouraged to begin with a presumption that evidence led against the accused is true for no better reason than that it is given on oath.

At 541

The Crown has submitted that a necessary corollary of the approach in this judgment would be that, in every case, a trial judge would be bound to give directions to the jury as to how they should deal with the natural question: Why would the complainant have made up these serious allegations? That may be so. I do not think the point detracts from the approach to the problem in R v E, in R v Uhrig or in this judgment. But I am happy to take the point head on. If juries require assistance on this point, in order to avoid error in legal principle, then assistance should be provided.

At 542

Whilst it may not be necessary to give a particular direction in every case involving complainant evidence, the following would, in my view, be a suitable direction:

“It would be natural to ask yourselves why the complainant, X, would make up such serious allegations against the accused. I give you the following directions about that question:

1. As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns on the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth.

2. As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part. X is no exception to that.

3. It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about.”

I provide the foregoing draft direction, not because I am satisfied that such a D direction is necessarily required in every case such as the present case, but in order to answer the suggestion that the approach in this judgment leads in some way to an unmanageable situation in the context of a criminal trial.

Brennan CJ, Gaudron and Gummow JJ (would allow the appeal on the Jovanovic point and the unsafe and unsatisfactory point)

6. In the course of L's cross-examination by counsel for the appellant, the following exchange occurred:

"All this bloke had done is take you out and for some reason you have taken a fancy to him, isn't that right?---No, he took me back to his place.

This is some sort of pay back on him for some indiscretion he doesn't even know about, isn't that right?---No, I am not lying."

When the appellant gave evidence, his cross-examination by counsel for the prosecution commenced thus:

"Mr Palmer, as I understand it, from the questions that were put to [L] yesterday, you would really, it seems, be at an absolute loss to think as to why she should make up the allegations?---You are asking me what - - -

Yes?---I have no idea why she has said what she has.

You would have heard Mr Montgomery mention to her yesterday, 'It was a pay back for some indiscretion he does not even know about'; did you hear Mr Montgomery say that to [L]?---I think he did, yes.

So far as you are concerned there is absolutely nothing about your behaviour towards [L] in the past prior to the 4th July, or at all, that would account for her making such an allegation against you?---I have, as I said before, under question from Mr Montgomery, in reference to this - no, I have done nothing.

So even with the benefit of hindsight, or as in the time that has elapsed from the time you were questioned by police - which is about August of 1994 - until now, you are still at a loss?---Yes."

At the end of a lengthy cross-examination the following occurred:

"I suggest what [L] said you did and said to her over the days leading up to and on the 4th of July is exactly how it happened?---I am telling you it is not.

At this stage, as you sit there today, you can't think of any reason, or anything you have done to her - - -?---No, I haven't.

As to why she would make this up?---I am saying that to you, that is correct."

No objection was taken to these questions at the time…

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7. 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. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

8. 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. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F:

"the 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie'? That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant."

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11. In our opinion, the view adopted in Queensland and New South Wales is correct in principle. In the present case, although counsel for the appellant in cross-examination of the complainant made it quite clear that the appellant had no known basis for alleging a "pay back" motive, counsel for the prosecution sought to capitalise on that concession. Presumably by reason of the view current in Victoria, no objection was taken to the cross-examination by counsel for the prosecution and the trial judge did not intervene to prevent her from pressing the question and, at the end of the cross-examination, repeating it. The effect of that cross-examination must have been significant. The objectionable questions which opened the cross-examination were put immediately after L had manifested in the presence of the jury her rejection of the appellant's evidence of his innocence. The trial judge had sent the jury out while he instructed L not to cry or to do anything to attract the jury's attention. Then the jury were brought back and the prosecutor opened her cross-examination with the questions that were designed to highlight the fact that the appellant had no ground for imputing to L a motive to lie.

McHugh J (would dismiss the appeal on the Jovanovic point but allow it on the unsafe and unsatisfactory point, and also still endorse the direction proposed)

26. In my opinion, the questioning of an accused person as to his or her knowledge of facts that could throw light on the complainant's motivation for fabricating a charge of sexual assault is relevant in determining whether the accused is guilty of the charge. Cross-examination of the appellant as to whether there was anything in his behaviour that would account for the complaints against him was therefore admissible. His first contention fails. However, on the whole of the evidence, the appellant's convictions are unsafe and unsatisfactory. The strength of the appellant's alibi was so great that it was not open to the jury to be convinced beyond a reasonable doubt that he committed the alleged offences on the date put forward by the Crown, a date that was central to the Crown case. The appellant's second contention therefore succeeds with the result that his conviction must be quashed and acquittals entered in respect of all charges.

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58 In this case, the complainant's motivation or lack of it for fabricating her allegations could fairly influence the belief of the jury as to the probability of the occurrence of the alleged offences. When a serious allegation is made against a person, one of the first inquiries most persons make in testing the truth of the allegation is to ask whether the person making the allegation has any motive for fabricating it. Any facts that suggest a motive are regarded as throwing light on the probability of the allegation being untrue. Conversely, where no facts suggesting a motive are known, the probability of the allegation being true is frequently enhanced. This is particularly so when the case depends, as it so often does in cases concerning sexual charges, on the complainant's word against the word of the accused.

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62. The fact that an accused knows of no facts suggesting a motive for fabricating a charge does not mean that there is no motive or that the evidence of the complainant is true. As the learned trial judge carefully explained to the jury in this case, a person may give false evidence for many reasons. But the accused is ordinarily the person in the best position to know whether any such facts exist. If the accused can give no evidence as to such facts, it increases the probability that there is no motive unless one accepts the view - which I do not think a court can act upon in the absence of empirical evidence - that most firsthand evidence involving a serious complaint against an accused person is concocted.

63. It must be acknowledged, however, that there are dangers in allowing the accused to be cross-examined as to his or her knowledge of facts suggesting motive. If the accused cannot suggest a reason, it may influence the tribunal of fact, consciously or unconsciously, to reverse the onus of proof. That is to say, it may lead the tribunal of fact to conclude that the inability of the accused to point to facts suggesting a motive for concocting the allegation suggests that he or she must be guilty - at all events in those cases where the accused cannot point to evidence contradicting the allegation except his or her denial.

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69. In my opinion, the view expressed by Sperling J in R v E is premised on an unrealistic view of jury deliberations. The speculation to which his Honour referred is an unavoidable and, I would venture to suggest, expected part of jury deliberations. To pretend otherwise would be to ignore the realities of the manner in which ordinary people reason and by which juries presumably accept or reject evidence in cases such as the present. The jurors are almost certain to ask themselves the question, why would the complainant invent this terrible allegation? That being so, it is better to give them directions on the matter. At all events, it is a course to be preferred to that of ignoring the process of reasoning that is almost certain to dominate the jury's discussion of the issues when the case comes down to word against word. Even if the law did not permit an accused to be cross-examined as to his or her knowledge of facts suggesting a motive, I think the proper administration of justice would nevertheless require a full direction along the lines given by the trial judge in this case. The need for such a direction is more important than ever having regard to the large number of cases of sexual offences coming before the courts. And once it is accepted that the jury must be directed on the subject, they should be permitted to hear whether the accused can suggest a motive for the complaint.

Kirby J (would allow the appeal on the Jovanovic point but dismiss it on the unsafe and unsatisfactory point)

94. Both parties approached that issue by asking three questions: Was the cross-examination permissible of itself? If otherwise not permissible, was it rendered permissible by the way in which cross-examination of the complainant had opened the question up? In either event, did the directions given to the jury by the primary judge sufficiently remove any risk that a miscarriage of justice had occurred so as to sustain the application of the proviso?

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101. The foregoing arguments of legal principle and legal policy are evenly balanced. For my own part, I would generally favour an approach which accepts the capacity of a jury, with appropriate judicial assistance, to give such weight to evidence and submissions about the accuser's motivations as they consider proper in the context of a trial in which the Crown must prove all elements of the charges brought and do so beyond reasonable doubt.

102. However, although no authority of this Court binds us to a particular outcome, I have concluded that it would not be harmonious with the principle adopted in Robinson v The Queen 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. This Court held that to permit, in that case, judicial directions (but by inference also questions making the same suggestions) would undermine the presumption of innocence which the law accords to an accused person. This ruling has attracted some criticism. It has been said that it has given rise to different interpretations as to the strictness of the principle established. But as I read the rule in Robinson, it is a simple one, easy to apply. Neither by questions nor submissions, nor by judicial directions may it be suggested that an accused's denial is undermined, and an accuser's accusation strengthened, by the obvious fact that the accused has an interest in acquittal. The forbidden imputation about the accused's motive to lie to secure acquittal has, as its counterpart, a prohibition on the investigation of the motivation, if known, of the accuser to lie, realising as the accuser must that this could result in the accused's conviction and punishment. If the one is forbidden by the authority of this Court, 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.

Giles JA

1. I agree with Wood CJ at CL.

Wood CJ at CL

2. The appellant was convicted, after trial, of aggravated sexual intercourse without consent, contrary to s61J(1)(2)(a) Crimes Act. The circumstances of aggravation were that, at the time of the offence, the appellant maliciously inflicted actual bodily harm on the victim. For that offence he was sentenced to a minimum term of two years six months imprisonment and to an additional term of two years six months. He now appeals against that conviction, but not against the sentence.

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90. In the course of his address, the Crown Prosecutor dealt with the complainant's nomination, to Ms Combo, and to Constable Whitely, of the person "Rob" as the person who had just assaulted her. He continued:

"Now that's what she's telling Constable Whitely moments after she's fled from this scene near the toilet block. Now is she making it up members of the jury? I tell you I think not. If so, why? Why would she be making this up? I suppose there are many answers to that and I certainly don't ask you to speculate because she tells you who did it; she tells you it's this person Rob, a person that she doesn't know particularly well, but knows him well enough to recognise him and also knows it's him because he's the bloke she went to the toilet block in the first place when she was fully aware as to what she was doing in terms of being quite keen on the fellow and being prepared to go along with him. So she knows who it was."

91. Later in the address, the Crown Prosecutor said:

"You will recall the evidence of the accused himself. I asked him some questions as to whether there was any animosity, I think I said, or disagreement or something like that, between he and DR; there was none, they were friendly. Members of the jury DR is not making up first the fact of these things happening to her, nor the second as to who did them to her. She has no reason to in my submission to you members of the jury and she has not made it up."

92. The invitation to the jury that was said to arise from this submission gave rise to the fifth ground of appeal, it being submitted that it led to a miscarriage of justice. The manner in which it was dealt with by his Honour gave rise to the sixth ground of appeal, it being submitted that his Honour failed to give appropriate directions to the jury concerning the argument advanced.

93. The posing of a question, in the course of a closing address, that is designed as an invitation to the jury to consider why the complainant would be making her evidence up, is both imprudent and inadvisable, that is where the question of motive has not been ventilated in the evidence. This follows from the decisions of this court in Davies NSWCCA 8 December 1994; F (1995) 83 A Crim R 502; E (1996) 39 NSWLR 450; Uhrig NSWCCA 24 October 1996; Graham NSWCCA 2 September 1997 (reversed on other grounds 1998 HCA 61); and Jovanovic (1997) 42 NSWLR 520; and of the High Court in Palmer (1998) 72 ALJR 254.

94. However, what was said by the Crown Prosecutor, in this case, must be viewed in context, and in particular by reference to the fact that he made it clear to the jury that they were not to speculate about the matter. Understood in its full context, the Crown Prosecutor was conveying the message that the complainant had no reason to make up the allegation and was not doing so. He did not directly suggest to the jury that they should ask the offending question of themselves.

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96. The potential vice in posing the kind of question, discussed in the cases earlier mentioned, lies in the fact that it is a rhetorical question that implies its own answer, namely that in the absence of a reason being identified for the complainant to lie, none existed. It risks consciously or unconsciously reversing the onus of proof, so far as it might imply, unless accompanied by a direction to the contrary (Palmer at 258), that it is for the accused to provide a reason or motive, and that if he or she cannot do so, then the complainant can all the more readily be accepted.

97. As Sperling J, pointed out in E (at 462) the absence of motive cannot be inferred from the absence of evidence of motive, yet to pose the question is to give legitimacy to a line of reasoning that would support such an inference. Moreover, an unfairness can arise so far as a question, posed in such terms, may leave an accused accountable for failing to discern a motive in the mind of the complainant, even though no ready or reliable means exists of accessing another person's mind to discern the reasons for what he or she does or says. (see E at 464).

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100. Notwithstanding, the rigours of the criminal law have held the line by reference to the foundational principle that it is for the Crown to prove its case beyond reasonable doubt, and not for the accused to prove his innocence. The only exception allowed has been where a motive to lie has been asserted, on the part of the complainant, or by some other witness essential to the prosecution case, or where such a motive could reasonably be inferred from the evidence. In such a circumstance, justice requires that it be dealt with, and that the jury give consideration to the question whether there was a reason for the complainant to lie.

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106. Although some support for this view exists in the judgment of Kirby J in Palmer at 275, I would prefer to read the expression in a less rigid way, leaving it to the trial Judge to frame a direction suitable to the way in which, and the firmness with which, the possibility of motive has been opened up on the evidence, and in the closing addresses. In some cases, particularly where the motive is offered by the accused himself or herself, then the additional direction would normally be appropriate, lest the jury think it proper to penalise the accused for offering a reason which they find to be spurious or hollow, or designed unfairly to denigrate the complainant.

107. Where the evidence of a possible motive comes from another witness, or where the matter arises in some half-hearted way, in passing, as I believe it did in this case, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence, it being for the Crown to establish guilt beyond reasonable doubt, and that they ought not to speculate about matters that are not established upon the evidence.

James J

120. I agree with Wood CJ at CL

Spigleman CJ

1. I agree with Latham J.

Hidden J

2. I agree with Latham J.

Latham J

3. Aisson Doe appeals against his conviction after trial on four (4) counts of Sexual Intercourse without Consent pursuant to s 61I of the Crimes Act 1900 and one count of Indecent Assault pursuant to s 61L of the Crimes Act. There is no appeal against sentence.

4. The narrow focus of the appeal renders it unnecessary to relate the circumstances of the offences in any detail. Of particular relevance to the appeal is the evidence of a critical witness in the Crown case, Justino Mulima, to whom the appellant made a disputed admission. The trial advocate’s comment, namely, “there is no suggestion that Mr Mulima had any axe to grind with the accused at all”, is said to give rise to a miscarriage of justice, in that the remark was equivalent to “why would he lie?” : see F (1995) 83 A Crim R 502; R v Uhrig CCA 24 October 1996 ; South v R [2007] NSWCCA 117. In summarising that submission, it is said that the trial judge compounded the error.

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21. At the heart of the issue raised by this appeal is the risk that, in the search for an explanation for why false allegations might be made against the accused, the onus of proof is transferred from the Crown to the accused.

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58. Having regard to these authorities, the following propositions emerge. Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive (“the central theme”), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.

59. Where there is no direct evidence of a motive to lie on the part of a central Crown witness, or evidence from which one can be reasonably inferred, a miscarriage of justice may be occasioned by:

(i)cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case ;

(ii)a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie ;

(iii)a Crown submission to the jury which directly invites them to ask the question “Why would he/she lie ?” in order to promote the acceptance of the witness as a witness of truth;

(iv)a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect.

60. Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case.

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76. Neither the trial advocate’s submission, nor the trial judge’s summary of that submission, encouraged the jury to ask themselves “Why would Mr Mulima lie?” (see Smith) Even if the risk of that interpretation arose from the trial advocate’s comment, the summing up did not repeat the trial advocate’s comment verbatim, but qualified it in a material respect. By casting the Crown’s submissions in terms of how Mr Mulima appeared to present as a witness, the jury were being told no more than they were told at the outset of the summing up, namely, it was legitimate to assess a witness’ honesty according to the impression that the witness made upon them. That aspect of the summing up followed the directions which emphasised that acceptance of Mr Mulima’s evidence about the admission depended upon proof beyond reasonable doubt of his honesty and accuracy, and that the accused bore no onus of proof.

Ward JA

1. I agree with Adamson J

Price J

2. I agree with Adamson J

Adamson J

3. RB appeals against his conviction following a trial by jury before Payne DCJ at the District Court at Griffith. The sole ground of appeal is that:

“There was a miscarriage of justice as a result of the Crown’s address effectively inviting the jury to reason, ‘why would they lie?’”

4. The appellant was convicted of all five counts on the indictment: one count of commit act of indecency towards the complainant (his natural daughter) who was under 16 years of age and under his authority; three counts of sexual intercourse with the complainant who was then between the ages of 10 and 14 years in circumstances of aggravation (being under his authority); and one count of sexual intercourse with the complainant who was between the ages of 14 and 16 years in circumstances of aggravation (being under his authority).

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35. The appellant contended that a miscarriage of justice was occasioned by the fact that the direction set out above addressed only the fact that the appellant did not have to establish motive to lie on behalf of the complainant. He submitted that the direction ought to have extended to the other witnesses relied on by the Crown, KA and Mr O’Loughlin, and ought to have specifically referred to the rhetorical questions asked by the Crown in final address.

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44. However, this circumstance does not prevent the Crown from responding when an accused person advances motive as impugning the Crown’s witnesses. The various “principles” have been summarised in cases such as Doe v R [2008] NSWCCA 203 (per Latham J at [58]-[60]). However, ultimately the question is to be resolved by a consideration of the facts and circumstances of the particular trial and a determination made whether the jury has been correctly instructed as to the onus of proof, including that the accused bears no onus to prove a motive to lie.

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47. The direction given by the trial judge which is set out in the narrative above is in terms of the draft direction in R v Jovanovic and concentrates on the complainant’s evidence. The reason for the concentration on the complainant’s evidence is clear: the complainant was the only person other than the appellant who was present when the acts constituting the five offences were said to have occurred. Therefore it was open to the jury to convict the appellant of all five counts as long as they were satisfied beyond reasonable doubt that the complainant was telling the truth.

48. It was not necessary that the jury be satisfied that either KA or Mr O’Loughlin was telling the truth…

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51. Having considered the way in which the Crown led the evidence from the complainant, KA and Mr O’Loughlin; the challenges to their evidence in cross-examination; the Crown address; and the summing up (which included not only a Jovanovic direction but a reiteration, in the context of the recorded interview, of the onus of proof), I do not consider that the jury would have been left with any impression that the applicant had to prove that any of these witnesses had a motive to lie. In my view, the trial judge, by her Honour’s careful directions set out above, amply and correctly directed the jury as to the onus of proof and the need for the jury to be satisfied beyond reasonable doubt of the truth of the complainant’s evidence.

52. The sole ground of appeal has not been made out. No miscarriage of justice, much less error, has been established.