Palmer v The Queen M41/1997 [1997] HCATrans 356 (7 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M41 of 1997

B e t w e e n -

COLIN VAUGHAN PALMER

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 NOVEMBER 1997, AT 10.22 AM

Copyright in the High Court of Australia

MR R.K. KENT, QC: If the Court pleases, I appear with my learned friend, MR M.R. SIMON, for the appellant. (instructed by Jonathan Kemp & Associates)

MR W.H. MORGAN-PAYLER, QC: If it please the Court, I appear with my learned friend, MR G.J.C. SILBERT, on behalf of the respondent. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Vic))

BRENNAN CJ: Yes, Mr Kent.

MR KENT: Thank you, your Honour. If I could just indicate to the Court, with respect to the appellant's list of authorities, there is reference there to the judgment of the Court of Criminal Appeal in New South Wales in the matter of Reg v F. There is a report of that judgment (1995) 83 A Crim R 502.

If the Court pleases, the first two grounds of this appeal relate to the issue of cross-examination of an accused person as to whether the accused is aware of any motive for, as it was in this case, the complainant to lie in respect to allegations.

The respondent, in their outline of submissions, indicate that although this question has been raised on a number of occasions with respect to cases involving allegations of sexual impropriety and sexual offences, that the question really is one of general application not confined to such cases and with that we agree. However, there, perhaps, is a particular reason why it arises more frequently in cases of this nature and that is probably because in many such cases the real issue in the case comes down to a question of the credibility very often of two witnesses, the complainant and the accused. It therefore becomes a matter, very often, of greater significance in such a case than it does in others but we would agree with what the respondent says, that the question is a general one.

The issue raises a number of questions, it is our submission: firstly, the general question, "Is such questioning, cross- examination of an accused ordinarily permissible?" We would submit that it is not. The next question raised in this case is, "Was that issue raised by the accused or the accused's counsel in such a manner as to make it proper for the cross-examination to be conducted that was, in fact, conducted in the case?"

Then the question perhaps becomes: "Did the charge to the jury balance what might otherwise have been unfairness to such an extent to remove the danger that existed of, we would submit, wrongful conviction because that matter was litigated or did the charge aggravate the situation?" For example, in this case the learned trial judge in his charge spoke of possible motive in terms of saying, "Well, it might be that a witness might be suffering some kind of neurosis or psychological illness." We would suggest that that tended to aggravate the situation in this case and we will elaborate on that, but in this way, that there, of course, was no evidence of neurosis or psychological illness and it could distract, again, the jury from the task that it needed to undertake.

The learned trial judge also dealt with the matter by reference to, "Perhaps these things really happened but the complainant has substituted somebody else." Circumstance that there was no other person apparent in the evidence in the case that might be suggested was the offender other than the accused and, again, that might mean that the jury would say, "Well, if they are the only reasons, we dismiss those and, therefore, emphasise the fact that we cannot discern any motive, the accused cannot provide any motive, therefore, the complainant's account must be correct." So those questions generally arise in the context of this case.

If we can deal with what we submit is the general question in this case as to the cross-examination of the accused as to whether or not he knew of a reason why the complainant would lie. Now, firstly, we would submit that the fact that an accused does not know of a reason why a witness for the prosecution might tell lies does not mean that there is not a reason. Very frequently, of course, a person will not know of the motive of another to tell a lie, in fact it is asking of a witness to speculate or offer an opinion as to the state of mind of another.

McHUGH J: Not necessarily.

MR KENT: No, it is not necessarily, but it may be. With respect, we agree with that. There may be circumstances where the person does know and it has been articulated to them or the relationship has been such that they are, in fact, aware of a motive.

KIRBY J: Does that not highlight the difficulty of laying down general rules in this area, because a question, "What possible reason could the complainant have?", might be very objectionable. But a question, "Is there anything in the background of your relationship that suggests that there may be a reason?" may be of a different character.

MR KENT: Yes, with respect, your Honour, it is difficult to lay down a general rule other than this, that we are dealing with a case where it is plain from the outset that the accused is not, in fact, advancing an opinion or a reason as to why the person might lie. Now, of course, when the accused does do that and does point to things that might be a motive, the question of whether or not that is a motive is, of course, something that can be litigated. But in a case where nothing of that nature is proffered, it is in a vastly different situation.

McHUGH J: But the accused is a party and he can make admissions. Why cannot he be asked, "Do you admit that you do not know of any reason why the complainant should make this allegation against you?"

MR KENT: Because it is not relevant, your Honour, that he does not know.

McHUGH J: Why is it not relevant?

MR KENT: It is not relevant that he does not know because it does not go to the question of whether or not there is such a reason.

McHUGH J: Of course it does. It does not prove it conclusively, but certainly it is some evidence upon which a jury could act and, as everybody seems to agree, when the jury gets out into the jury room, that would be one of the things they will be taking into consideration.

MR KENT: And great care must be taken to explain to the jury how they must not misuse such a speculative approach, with respect, your Honour. There is a danger of that, that it is, at first sight, a comfortable notion to say, "He cannot advance a reason, therefore there cannot be one, therefore it must be true" and that is not a logical chain of reasoning. It is not proper, in my submission.

McHUGH J: It is a powerful factor, is it not, and juries obviously, as a matter of common sense, I would have thought, take it into account. If it is not conclusive people will invent things, people will lie but the fact is that more often than not, one would think, if somebody is deliberately lying there is some reason and people that are close to the scene may well know of it. If nobody that knows anything about it can offer any reason, well, it tends to reinforce the fact that there is no reason.

MR KENT: We would submit, not, because it is a matter personal to that individual. If one assumes that they are telling lies, and people close do not know about it, then the conclusion is, on making that assumption, there is a motive; the fact that the other people did not know about it does not mean there was not one, and understanding that they did not know about it does not help to resolve that question. If we look at it the other way around, we might go wrong, if you start off with the assumption that the accusation is, in fact, false.

We have a situation here where, if one puts the onus of proof in the correct place, perhaps it should be looked at on the basis of saying, "Let us assume this is false". What help, therefore, is it to say that people close to the issue are unable to advance the reason why it is false. It is no help at all.

McHUGH J: Supposing that the accused says, "Yes, I do. Bill Smith told Joe Brown who told me that this girl said that she is out to get me. "

MR KENT: That is another one of the problems, with respect, about the question. It invites possible speculation, opinion, and it invites, perhaps, opinion based upon hearsay, that is, remote in the sense that your Honour has just articulated. So that the question can provoke an answer, that is, one that ordinarily is not properly able to be given in accordance with the rules of evidence if the person advances such a response.

KIRBY J: The fact is that when people make accusations it is often a complete mystery to the person who is the subject of the accusation as to why a person will do it.

MR KENT: Yes.

KIRBY J: Indeed, it really is speculation and runs the risk of shifting the onus of proof - burden of proof.

MR KENT: The next point which we wish to refer to about this is, what is in fact - - -

KIRBY J: Can I just say, the fundamental problem is the one Justice McHugh mentioned, that - I think Chief Justice Gleeson says, it hovers over the trial, and if we lawyers say, "Well, we just won't talk about it, we won't have any discussion of it", then the jury are really left without any instruction and they just have to use their own speculative processes. Is that a satisfactory approach?

MR KENT: It may not be satisfactory and it may be that if the trial judge in a given case believes that that issue is of significance and likely to occur and likely perhaps to be used incorrectly by a jury, then the trial judge would need to use his or her discretion as to how to deal with that matter.

McHUGH J: Mr Kent, is it not better that the whole thing be brought out; let the accused proffer any explanation or say he does not know any of it, but at the same time the judge should, as a matter of practice, if not of law, always give the jury a very careful direction on this particular issue, and then the thing comes out into the open. Otherwise juries go out and are left to their own devices.

MR KENT: Your Honour, with respect, that may well be an approach that should be adopted. The problem is, when one looks at the actual cross-examination here we have got this situation, that the accused is in the witness box and is under the microscope in the criminal and probably more so than any other witness in a criminal trial. The questions are rhetorical. They were not asked for the purpose of eliciting a reason from the accused, they were asked for the purpose of highlighting the fact that he could not offer an explanation. That was clearly known. We will go to the actual cross-examination in a moment, because it is important to see how it was put.

He was not being asked questions; there was a point being made by the statements that were contained in the questions. The questions were not asked for the purpose of eliciting a motive of which he knew, they were asked to highlight that which was already known, that he could not proffer an explanation. Therefore, even if a matter - if we assume that a matter is raised - we can have shorthand versions of rules and you can say, "Well, if a matter is raised in evidence-in-chief or in cross-examination of another witness, that issue is open for cross-examination." As a general proposition that is probably so. However, one still has to say, "But does the cross-examination have a legitimate purpose, whether it was opened or not?" If it does not have a legitimate purpose, it should not be permitted. It is our submission that in this case that the Crown made an absolute feature of that point, right at the commencement of the cross-examination.

As we have said, the accused is under the microscope. An impression that may be made in the mind of a jury at the moment that those questions are asked is, "Well, there you are, he can't provide an answer, therefore, there cannot be one, therefore, the allegations must be true." The whole setting of his evidence, from that point, can be viewed by a jury in that context and it can create that impression.

McHUGH J: Consider the alternative if no question is asked. I would have thought in this class of case that that issue as to what reason she would have for inventing this is the dominant issue that is discussed by the jury provided, as is usually the case, that there is an utter conflict and neither side is really broken down to any of it.

MR KENT: Yes, that may well be. But then one needs to be terribly careful that the jury is not left in a position where it may misuse that problem and say, "The accused always has a motive because the accused is going to go to gaol if the accused gets convicted. We cannot think of one for the complainant therefore the complainant wins". And that is the problem with it. It really does reverse the onus. When it is highlighted, as it was in this case, by the nature of the cross-examination at the very beginning of it and then at the conclusion, the final blow, the big point of counsel to sit down on was again that point in this case. So it was highlighted, it was elevated to a point beyond which it ought to have been and rendered the matter unfair.

McHUGH J: You say that the accused could not say of the complainant or the Crown generally, "Can you suggest a reason why the accused would lie about his denials in this?"

MR KENT: That is so, unless it is based upon properly admissible material of which the witness has knowledge. So that it may be it is inquiring of a fact which is in the knowledge of the witness, but if it is not and it is asking for an opinion, then it is not permissible.

KIRBY J: Assume here that the accused is innocent which is the assumption our legal system requires us to make and that this accusation is made. A question directed at him would elicit this sort of response, either, (a) "I just do not know", or, (b) "Well, I do not know but I have my suspicions. She did not like my relationship with the mother. She was herself reaching puberty. It was a time of stress in her life and this is, I think, what must be behind it. But I just really do not know." Now, if he is innocent, just assume that that is the case, then that is the sort of response he will give. Is it better that that be out on the table and that the judge says, "Well, he does not have to prove this, he cannot speculate, he cannot get into the mind and it is better that you be told so that you be directed in a very firm way about this", and that we lawyers say, "Well, you just cannot have it."

MR KENT: But, of course, your Honour did not put it in the rhetorical way in which it was put in this case. Your Honour is saying - there is a great distinction between what your Honour just said where the person is able to say, "Look, I am terribly sorry, I really just do not know", rather than the manner in which it was put. In this case it is put - it is almost as if you could see - I am not saying this did happen, but it is almost as if the prosecutor was, in fact, making a speech to the jury rather than asking the question in the properly inquiring manner in which your Honour formulated the method of dealing with it. So that if it is permitted, then it can be used as a matter of advocacy by a skilled prosecutor to, in fact, have the question answered in the way that it was sought to be done by the Crown in this case. That is, "It must follow, if you cannot explain it, that she is telling the truth." Now, that is clearly the purpose for which it was used. If I can turn to it, it is at pages 185 to 186 initially of the appeal book.

BRENNAN CJ: This is immediately after an incident in which the judge had to send the jury out because of some conduct on the part of the prosecutrix?

MR KENT: That is so. There was what must have been quite a matter of concern to the learned trial judge about the event that occurred in the court and then this is put.

McHUGH J: What page is it, Mr Kent?

MR KENT: It begins at page 185, your Honour. So it is very the first question:

Mr Palmer, as I understand it, from the questions that were put to Laura 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.

Page 185 of the appeal book. The number is at the top right-hand corner. Now, perhaps if it was left there, although we would submit that was asking the rhetorical sense, but it was persisted in:

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 Laura?---I think he did, yes.

So far as you are concerned there is absolutely nothing about your behaviour towards Laura in the past prior to the 4th July, or at all, that would account for her making such an allegation against you?

Now, the clear tone of that question is to say, "Well, you must be telling untruths and she must be telling the truth", and that is the purpose of the questioning. He said:

I have, as I said before, under question from Mr Montgomery, in reference to this - no, I have done nothing.

And then it goes on:

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.

Then it went away from there, but the - - -

KIRBY J: The context is arising out of the questions that your side had asked the day before in which, in a sense, you had opened the issue.

MR KENT: Yes, in a sense. We will come to that. We would submit that what was put does not make it permissible for cross-examination of this nature to take place. What counsel was doing was, in fact - counsel had indicated that the accused was not aware of any reason. Now, the fact that that has happened does not leave it open for him to be cross-examined about it, in our submission, because of this: if, of course, he was advancing a motive, he could be cross-examined about it to show that that motive could not be correct. There is no difficulty about that, but where it is being put that he does not know, what is the purpose of asking further questions about that?

Its only purpose is to invite the jury to conclude, "He does not know, therefore, the complaint must be correct." It can have no other purpose. It is not a situation that the Crown is testing his credibility as to saying, "I do not know why she made it up." The Crown is not hoping to break the witness down to say, "Oh, look, the fact of the matter is I really do know, but I was keeping it secret and the motive is X." That is not the purpose of the questioning. It has only one purpose in the context of a case where the accused is not advancing a reason and it is used and has been used, we would submit, improperly in that way by the prosecution frequently and, as is seen from the number of occasions on which this has been considered by the Court of Appeal in New South Wales, they have set their face against this type of questioning or, indeed, against the argument being put either by counsel or by the learned trial judge, that the jury should ask themselves the question, "Why would the complainant lie?"

So that clearly the cross-examination here was an invitation to the jury to do that and to use it to conclude that the allegations must be true. Therefore it became a central issue. It became a central issue because of how it was raised, when it was raised, but the point is that the question by the counsel for the accused was to say that he does not know about it. It was payback for some indiscretion he does not even know about.

The very question that was put by counsel, it might be thought was speculative of itself, the way that it was expressed by counsel. Counsel is really saying, "What is it, we do not know", rather than saying, "This is the reason". If counsel had put, "You are doing this to pay back for the fact that he did not take you to lunch a second time" or something of that nature, well then, of course, he can be cross-examined about that as to whether that was a fact and as to why it is advanced as the reason. But he is not advancing a reason and, therefore, it does not open the matter as a matter proper for cross-examination.

It was highlighted again and dramatically, one might expect, at the conclusion of the cross-examination, and that is at page 250, but I think I have probably got the wrong page reference here, that is probably the transcript reference, in fact. No, it is not. It is, in fact, page 250 of the appeal book and there, concluding questions in cross-examination of the accused:

At this stage, as you sit there today, you can't think of any reason, or anything you have done to her- - -?

He interpolated:

No, I haven't.

The question went on:

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

So the question really was this:

At this stage, as you sit there today, you can't think of any reason, or anything you have done to her.....As to why she would make this up?

Now, again, what is the purpose of that question? The purpose of the question is to have the jury say, "There you are. He does not know. He cannot advance a reason, therefore the complaint must be true." That is an impermissible purpose. The matter was then not dealt with directly by the learned trial judge. It was dealt with obliquely in the sense of saying, "Well, people lie. We know people lie." And his Honour gave an example.

McHUGH J: The judge was very fair. It was a very favourable summing up on this - - -

MR KENT: It was surprising he was convicted, your Honour.

McHUGH J: - - - general area.

MR KENT: We do not suggest otherwise than that the judge was fair but we submit that this issue was not defused and, when one looks at this case, looks at the charge, the fact that it was effectively a witness-against-witness case, there was significant material put forward by the accused. It is likely that this feature was a reason as to why, and a significant reason as to why this man was convicted, in our submission. It really must, in such a case as this, have loomed very large.

Now, there is a further problem in this case and that is that it is now the law in Victoria that judges may permit the jury to have transcript and, in fact, the jury had a transcript in this case. It was allowed to go to the jury without argument. One of the difficulties you have, in many trials there are incidents that occur that one would say are matters that should not have gotten before the jury, but they get buried in the overall context of the trial and often they are best left alone without any further comment.

The jury goes out with a transcript. Those matters that might previously have been safely left alone really need to be dealt with specifically because the jury sitting in the room, going back over the transcript, may make something of things that otherwise would have disappeared in the generality of the trial.

BRENNAN CJ: Did the jury have a transcript of those pages prior to page 185 relating to the incident where the judge sent the jury out?

MR KENT: No, they had a transcript of the evidence, but not of the things that happened in the absence of the jury, your Honour. They would not have had that.

BRENNAN CJ: So, the transcript is produced differently from the form in which we have it here?

MR KENT: Yes, they are not just given the entirety of the transcript. So that matters of discussions that are not of concern or interest to the jury would not go to the jury. Now, I say that is the practice, your Honour. I cannot say that we have anything from the material to indicate precisely what it was that went to the jury other than the fact that they had the transcript of the evidence. But, it would be safe, we would submit, to assume that they did not have matters of discussion and matters of incidence of that nature. It is possible they did but we do not suggest that they did. But what we do say is that what they did have before them was the transcript with these questions in it and so the matter, in those circumstances, is not a matter that you could comfortably say, "Well, it would not have loomed large." It may well have loomed, indeed, as the central feature of this case and there is a real danger in doing that.

There is a danger, indeed, in not really considering the question about whether a jury should have a transcript or whether they should not have a transcript. It really is a matter, we would submit, that should be looked at carefully and particularly when there are issues like this in a trial. Now, of course - - -

KIRBY J: Can I just ask you on the transcript question, is that pursuant to a provision of the Crimes Act?

MR KENT: I do not know if it is the Crimes Act or the Evidence Act, your Honour. Well, Crimes (Criminal Trials) Act, your Honour.

KIRBY J: Is it a discretion, or it can be opposed and you did not oppose it?

MR KENT: Yes, it can, but it seems that what is happening, as a matter of practice, is that since the enactment of that legislation, there is an assumption that ordinarily if a jury wants a transcript or if the judge feels that they should have one, it just goes to them without argument, which is probably a criticism of counsel and not the court. The legislation was not intended to automatically have the transcript go to juries, but in many cases that seems to be happening. But be that as it may, it is not a subject of appeal in this case, but it is a fact that existed that the jury had before them these very things which they could read over and over again, if they wished to do so.

The questioning was not in a benign fashion. It was in a very suggestive fashion, that the proper conclusion to draw as a result of this questioning was that he, the accused, not being able to provide a motive, there being no other evidence of motive to lie, it must be true.

If I could turn in that context to the manner in which the learned trial judge sought to deal with the matter, and there are a number of references to the charge to which I wish to refer. Sorry, if the Court pleases, just pardon me one moment. I have just made the error of using a transcript page reference, I am sorry. At page 487 of the appeal book, his Honour described the case in this way:

We have here a typical case of a dispute of fact founded on the believability or trustworthiness of a person making an allegation of fact.

It is very important, in our submission, to understand what happened in this case in the setting that it was essentially a witness against witness case. Therefore, a question of this nature is going to assume far greater significance if not properly handled than it might in a case where there are other evidentiary issues to deal with, that might give a jury a solid foundation for accepting or rejecting the account of a particular witness, and I include in that, of course, the accused. So that it is "a typical case of a dispute of fact founded on the believability or trustworthiness of a person making an allegation of fact". It is very easy then, when cross-examination of the accused of the nature that it occurred here is before the jury, to see that the jury will try to resolve the question by saying, "There was no motive. It must be true".

His Honour dealt with the question of the onus of proof - we have no complaint about that. Onus and standard of proof from page 319, page 320, and then again - I am sorry, I am referring to the transcript reference at pages 487 through to 489. His Honour, again reiterated at page 491:

It comes down in this case to a question of veracity, or truthfulness. It seems to me the ultimate question is, "Are you satisfied on the basis of all the evidence that you have heard that Laura Garrett was truthful?"

His Honour went on to deal with accuracy.

BRENNAN CJ: That is very obviously the central point in the case, is it not?

MR KENT: It is, but it will likely be resolved by the jury in this case by saying, "Because he couldn't explain why she might be lying, she must be truthful."

BRENNAN CJ: That may be one way in which the jury would resolve it; there may be others.

MR KENT: There may be others, your Honour, but there is a grave danger that they would improperly use that as a consequence of the issue, the feature that was made of it by the rhetorical questions in cross-examination and that that effectively becomes a reversal of the onus of proof, in our submission, a grave danger of it in a case of this nature. His Honour dealt with the general topic that could be described as encompassing the question of a motive to lie, and that began at page 492. His Honour referred to the nature of the court proceedings and so forth and said:

And it is all based on a recognition of a human propensity not to tell the truth on occasions.

That people tell lies is notorious and manifest, and that people tell lies at times without any discernible motive for them to do so, is also a matter of commonplace knowledge.

And he gave an example of a case that had some notoriety in Victoria, where it became apparent later on that there was an elaborate false allegation made. He went on, at page 493, to say:

Now people do tell lies of that sort. I am not saying anything, let me reiterate, about this particular complainant, Miss Garrett - - -

BRENNAN CJ: At 493, halfway down the page, he says:

it is, of course, for the prosecution to prove the accused man is not telling the truth beyond reasonable doubt; it is not for him to prove that he is.

You do not complain about that.

MR KENT: I do not complain about that at all.

BRENNAN CJ: Are we getting any further along the track by these references to the summing up?

MR KENT: Your Honour, I am doing this to indicate that I am covering the field as to what it was his Honour had to say, lest it be suggested that I have not done his Honour justice about it. I am indicating that these are the matters that might be raised in argument, to say that these matters adequately dealt with the problem, and it is my submission they do not. That is the purpose, your Honour. So that I am drawing the Court's attention to for that reason. I am being the devil's advocate, if I may use that expression, at the moment. I am putting these matters up and saying, "His Honour did that, but we say it is not enough."

KIRBY J: Do I understand that you make no complaint about the directions of his Honour in the instruction to the jury as such?

MR KENT: No, but what we say is that because this issue arose in this case it did not adequately diffuse the problem that was there. The difficult - - -

KIRBY J: There was no objection to the cross-examination at the time it happened?

MR KENT: That is so.

KIRBY J: What is the significance of that?

MR KENT: It is of no significance, in our submission. If this questioning is not permissible, the fact that it was not objected to should not be a barrier to the success of this appeal, because it is not something that one could say was not objected to because counsel perceived of some forensic advantage in remaining silent about it. We can only conclude that it did not occur to counsel that counsel was entitled to object to the questions. You can very often see, in a case where counsel does not object to something, that it might be a tactic of the trial, but you cannot see it in this case at all, in our submission.

The problem is that it has long been in trials in the County Court in Victoria the practice of prosecutors to base virtually the entirety of their attack on the accused, on the basis that the accused cannot provide an explanation as to why somebody should lie. It is only really finding its way into the Court of Criminal Appeal in relatively recent times. The Court of Criminal Appeal in Victoria has revisted this question since it dealt with Palmer, and those matters are referred to on our list of authorities, and we will refer to those, where the court differently constituted seems to be showing a little more of an inclination to look at the approach that has been followed in New South Wales but without having actually finally determined the question.

KIRBY J: Have you looked at other States of Australia? Have they tended to follow the New South Wales or this approach?

MR KENT: There is reference in the New South Wales cases that are referred to here to a general proposition in South Australia, I think, your Honour.

KIRBY J: That is Reg v E.

MR KENT: Maybe I am wrong about that. I thought there was a South Australian decision referred to. But, we do not have anything specific from the other States on this question.

KIRBY J: Have you researched that or not?

MR KENT: Yes, we have and we have not found anything, your Honour.

KIRBY J: What about - I have had reference to a number of cases in Canada on this and - - -

MR KENT: Yes. Well, our learned friends have this morning given us a copy of a Canadian decision on this point. Now I have not had the opportunity of reading it. It is a Queensland case. Your Honour is quite correct, with respect: Reg v G [1993] QCA 267; (1994) 1 Qd R 540 - is referred to in E. That is the case of E in the Court of Criminal Appeal in New South Wales. It refers to Reg v G, the Queensland case.

McHUGH J: Mr Kent, the question having been asked, it is out in the open and probably only made manifest what the jury would have been thinking about anyway. When you look at the trial judge's summing up at page 565, why is there any ground for thinking that there has been a miscarriage of justice in this case?

MR KENT: So you can argue in this case, because of the verdict of the jury, with respect, your Honour, that there has been a miscarriage of justice. The situation is that - the reference to which your Honour is referring at page 565, this is from the judgment of the Court of Appeal which - - -

McHUGH J: Yes, sets out that long - - -

MR KENT: Part of the charge of the learned trial judge. This part, in fact, contains one of the matters that we submit could have caused an aggravation of the problem in this case. It is where his Honour said this:

Now people do tell lies of that sort. I am not saying anything, let me reiterate, about this particular complainant, Miss Garrett, but I simply draw your attention to the fact that it is known that people tell lies, and tell lies without any dishonourable motive. It may, of course, come from their psychological state; some sort of neurosis.

Now, his Honour used that expression on a number of occasions and spoke of psychological illness, neurosis. There is not anything in the case itself to suggest that anybody could be saying that this young woman suffered from any neurosis or psychological illness.

KIRBY J: What is your explanation? You do not have to give an explanation but what hypothesis can there be?

MR KENT: Your Honour is asking me to speculate. I can offer some explanations they are partly based upon hearsay that I know about other aspects of the case, your Honour.

KIRBY J: No, I was not seeking that.

MR KENT: But in terms of looking at the case itself, my explanation could be if you understand that this young woman had a discussion with a schoolfriend of hers where there is some exchange between them about sexual activity - - -

McHUGH J: Is this Megan?

MR KENT: Yes, Megan, and she spoke to her and told her a very different story from the one that comes out in the complaint. Now, it can be that it is attention seeking; that it is not wanting to be left out when there is talk and speculation or talk and discussion amongst friends about sexual activity; it can be loneliness; it can be feelings of rejection. This young woman had been through a situation where she had been ill, she had been absent from school for a long time and then she goes back to school and there is discussion at least with one school friend in which she tells a story about some form of sexual experience or inclination towards sexual experience which later on she says was untrue.

Now, it can grow out of that. It can be those things. It must be borne in mind she was a young woman who - her mother was bringing her up by herself and she was left alone for a period of time. It is how the accused came into this situation in the first place and there could well be reasons of that nature. So in answer to your Honour's question, I can formulate - - -

KIRBY J: Reasons short of neurosis and psychological state.

MR KENT: Yes, they are. Anybody is subject to these sort of things without it being said you are neurotic or have a psychological illness. It is human nature and a jury thinking about the matter might say, "Well, what his Honour is saying, unless the person has some neurosis or psychological illness, it is probable she is telling the truth." Now, that is not what his Honour was trying to convey, but his Honour chose to use that example and repeat it on a number of occasions and it was the only example that his Honour gave of the circumstance in which a jury might have reservation about accepting an allegation. So that his Honour, well-intentioned - clearly well-intentioned - may well have, in fact, done a disservice to the accused by using that very reference. It is unfortunate in cases of this nature, of course, that counsel were not alert, firstly, to the question of whether or not the questioning was permissible in the first place and then to the issue of whether or not it was adequately dealt with in the course of the charge.

McHUGH J: It really was not quite word against word, was it, because, at least for my part, I thought the mother's evidence was very powerful against the accused in terms of what happened when the daughter came home that night, threw the McDonald's on the bed, went into the shower, it was all consistent with her account?

MR KENT: It is consistent with something having happened, your Honour, but it is not necessarily supportive of the fact that it was the accused man and, of course, his Honour was alert to that fact as well and suggested that the jury had to consider the question of whether these incidents occurred at all and, if they did occur, if they were so satisfied whether it was the accused and whether it was not the fact that he might have been substituted for some reason for the person who actually did it. So the mother's evidence is evidence of conduct that is consistent with something having happened, but, on the other hand, the evidence clearly indicates that the young woman that evening had gotten home some time after 9.30 when the expectation was she would be home no later than 6.30, that she had had a conversation with her mother earlier in the evening and it was still some hours before she came home.

McHUGH J: I know, but the fact is that what the mother says fits in with the daughter, and claiming there was an incident. The daughter goes into the shower; she if found asleep in the shower. That does indicate that something dramatic happened on that night.

MR KENT: It does, your Honour, but what could be dramatic in that situation is that the young girl had done something she had never done before and had gotten home at that time, which might, of itself, have been fairly dramatic, and she did not want to be confronted by her mother about it. Her method of dealing with it was to shut herself away from her mother to avoid the confrontation. There are many explanations about it; one of which is that a non-consensual sexual incident had occurred, but hat is only one of a number of explanations, your Honour. It does not sheet that home to the accused.

KIRBY J: Of course, because of the mother's relationship with the accused, there would be pressure of a psychological kind on the complainant not to embarrass herself and her mother about what had occurred.

MR KENT: There is reasons why she would not say anything about it to her mother.

McHUGH J: She, herself, gave the explanation that she thought she was a slut who had brought it on. That is what she said in cross-examination, that that is why she never told anybody; she thought she was a slut.

KIRBY J: That is not uncommon in victims of abuse.

MR KENT: Indeed, your Honour, and we readily agree with that, that the unjustified, or the unnecessary guilt that attaches: "Did I do something to bring this on?", and it causes people not to talk about it. So, whilst we do have a situation here where there was not an early complaint about the matter, we do not say that that matter, in the circumstances of this case, of itself, raises itself to be of great significance. It is a fact in the overall circumstance, but one can well accept that a young woman in this situation will not make a complaint. But, what we are submitting is that the conduct that was demonstrated after this event can be explained in a number of ways, and it does not sheet the matter home to the accused.

KIRBY J: In terms of principle, is there any analogy between the way this Court has dealt with directions on the accused's interest and the outcome of the trial, in Robinson's Case, and I think, Stafford, and directions by a judge on the issue of the motive for the complainant to lie. Is there a common principle there that the Court should strive to be consistent about?

MR KENT: Yes, we do. As we said in the early stages of our oral submissions, we agree with the Crown in that this is a matter of general application, not just of cases of this nature; that it is a matter of the balance of the trial. Is this a proper way of testing an accused, or is it leading the question before a jury in the proper way, and does the Court have to determine a formula of some kind for dealing with this sort of problem?

KIRBY J: Do I understand that your preferred position is that counsel should not - the Crown prosecutor should not ask questions on this matter and that it should not be brought out unless there is a real issue about motivation, but that if it does come out then there is a need for a very strong direction by the trial judge?

MR KENT: Indeed, your Honour, yes, that is the position we would take, and it may well be circumstances, we would submit, where the damage is so great because of the way it comes out that the only course left to a judge would be to discharge the jury and to start again.

McHUGH J: But why should we be satisfied there is a miscarriage of justice? Perhaps I take a very robust view of trials, I do not know. But a case goes on for days and issues are fought and the battles lines are up and down and the judge sums up and you get a summing up like this and the appellate court is asked, long after the event, without having seen the participants or been part of the atmosphere, to say there has been a miscarriage of justice here because there may have been an irregularity in the sense that this question should not have been asked, even though it concerns a matter that the jury would be thinking about themselves.

MR KENT: Your Honour, it really comes to this. I think that we have often had that robust view, with respect, that little incidents of a trial, a piece of evidence slipping in, a bit of hearsay or something inadmissible, can just disappear in the fulness of a trial. But, we would submit, in this case that it did not disappear and could not disappear, that it actually would assume enormous proportion.

The difficulty that we have now, we have got this situation. Accused people, and I am not making any comment upon whether there should be an alternative, but accused people, in this situation, have no option but to go into the witness box and give evidence. When they go into the witness box to give evidence, there is a tendency to making it a competition between the accused - in these, virtually, single witness cases - competition between the two and the danger is that it will not need much of an irregularity to say that a jury will prefer one to another in that situation and there is a real risk in such a situation of wrongful conviction.

The cases become very delicately balanced. They deal with a subject matter that is a matter, or ought to be a matter of grave concern to all people who hear about it and you are hearing about something that people say, rightly, "This sort of conduct should not be condoned." So when you start to judge it, the very fact that the allegation is made carries with it some level of concern that can, very quickly, turn itself into a subconscious prejudice. I am not saying that people are going on juries and saying, "We are going to lock up everybody against whom an allegation is made".

The fact is that we are dealing with these cases in a climate where it was about time that the community became aware of what was happening out there and it is very much aware of it and there must be, therefore, a far greater prospect that a jury will more readily convict and look to matters that are not strictly matters that are logically probative of the allegations and will look to some peripheral matter and say, "That will do, because we are very troubled about the subject matter that this case embraces".

There is, we would submit, a significant danger today, an increasing risk of wrongful conviction in these cases because of the very proper community awareness of the problem that exists in the society and there is an ironic twist. The courts have commented that the changes in the law were not meant to elevate the evidence in these cases to give it a probity or a strength beyond the evidence in any other case but to balance what was perceived to be an imbalance in the legal situation before.

But there is a danger that it can go the other way and that we increase the risk of wrongful conviction in cases such as this and any, any matter like that, that is put in a rhetorical or a sarcastic way to an accused person can, whilst the accused is then and there in the witness box, affect the mind of the listener to say, "We are going to reject this man" because those questions are asked.

Now that is not logical and it is not fair and, therefore, it should not happen and it does take it out of the little incidents of a trial that, ordinarily, we can be satisfied will not influence the result of the trial in the finish, such as the sort of things that I have referred to of some hearsay or some opinion, some speculation or some inadmissible material of whatever kind coming out in a trial and nobody takes any notice of it and they let it go. But this is of far greater proportion than those things about which the courts can afford to be robust and say, "These things are not going to influence in the end."

McHUGH J: I suppose the accused, as you say, have always to go into the witness box in these cases.

MR KENT: They do now.

McHUGH J: They do now.

MR KENT: There is no question of it, your Honour.

McHUGH J: Perhaps, it shows the truth of Sir Edward Carson's opposition to the Criminal Evidence Act in England in 1898 where he argued that the worst thing for the accused was to give the accused the right to give evidence, that they were better off when - - -

MR KENT: I must say, from my own point of view, that forensically I always consider that we are more likely to win the case out of the prosecution case then we are out of our own.

McHUGH J: Yes.

MR KENT: But there comes a time when one has to grasp the nettle and say, we have to go ahead and have a bit of a go ourselves here. But the times for advocacy of the type of Sir Edward Carson and Marshall Hall and the like has gone, and probably fortunate too. I say for the point of view of the appeal to the sort of popular themes of the community that we used sometimes in the robust advocacy before juries in those days.

BRENNAN CJ: Mr Kent, I think we have canvassed most of this, have we not?

MR KENT: Perhaps we can move on. In summary, there are a number of matters in the charge relating to a possible reason that his Honour gave, and there is another reference to this question of the psychological illness or neurosis at page 528.

BRENNAN CJ: But all you are saying is that the trial judge, once the issue of motive was raised, was at pains to raise other possible motives which might explain it.

MR KENT: Yes, but the things that he raised were things that were easily discounted by the jury because there was no material from which a jury could possibly think that those things existed. Once those things are put forward as examples, the danger is the jury would say, there is no suggestion she is psychologically ill, therefore we do use the line of reasoning, if there is no apparent motive she must be telling the truth.

McHUGH J: She certainly had a deep interest in the case. It would be unfair to say she was obsessive about it, but the facts is she plainly wanted to be present while the accused gave evidence, even though it was quite distressing to her and she was crying.

MR KENT: Yes, that is a real danger in the course of a trial and his Honour, of course, is aware of that, a danger that that could be conduct that was observed by the jury that was seen to - an observation of her that might lead them to the conclusion to say, because of what they say it must have been true what she was saying. His Honour was concerned about it.

McHUGH J: His Honour took the opposite view that the jury might think that she was less than impartial in giving her evidence.

MR KENT: I mean, his Honour was perhaps correct about that, but the danger is that who knows how it is going to be interpreted by a jury, who see somebody in a distressed condition, who may well say, "We have great sympathy for this young woman," because you start off with an assumption that the acts did occur. You can get the whole thing - it depends upon where you are sitting as to what interpretation you place upon it. It may be that a person who shows such an interest and conducts themself in that way is trying improperly to influence because the allegations they are making are untrue.

It is more likely that somebody, seeing a young woman sitting in the courtroom obviously distressed while the accused is denying that he has done these things, it is more likely that a jury will say, "There is a spontaneous response which indicates the truth," and it does not necessarily do so. It may in fact mean the opposite. So that the jury can say the interest stems from the fact of the truth of the allegation. The task of a jury is not to observe the person other than when they are giving their evidence, but it is an incident in the trial that they could not help but observe. As your Honour the Chief Justice pointed out, this occurred shortly before the cross-examination complained of as well. It highlights, very much, here is a distressed person and he cannot say she has got any reason to make it up.

KIRBY J: Save for the judge's direction on psychological, there is no other complaint that you make about his attempt to give a fair instruction on the correct principles, the matter having been opened up.

MR KENT: It is a complaint of the matter having been opened up, that it was not directly dealt with but obliquely dealt with. What I say about the judge's charge is that, viewed as a whole, the judge was endeavouring to be absolutely fair, but this particular issue, which must have loomed large, was dealt with obliquely rather than directly. It probably needed, when the questioning was of the nature that it was in the case, a trial judge to say, "You heard that cross-examination. There is a danger about that sort of cross-examination, that you might think it is proper for you to say, `Because he cannot explain it, there is no explanation,' but I am telling you, whatever impression you had at that time, if it was of that nature, then that is not a proper way of dealing with it." He is being asked to inquire into the state of mind of another person and he may have no way of knowing about it. It really needs to be dealt with very directly when it is raised, as it is in this case.

There is a dilemma for a trial judge, and of course the learned trial judge in this case did not have the assistance of counsel making any suggestions, so that it was not able to be debated. So that one might think that his Honour, firstly, was operating on the assumption, that appears to have held in Victoria, that questioning of this nature is ordinarily permissible. Acting on that assumption, his Honour probably felt that it was better not to deal with it directly, because one cannot make any suggestion that his Honour was showing any animosity towards the accused in the case; quite the contrary; he was giving him a very fair trial.

If one looks at what has happened in the times when this has been visited subsequently, there are two cases that the Court of Appeal in Victoria where they have revisited this. They are Costin and Rodriguez. Now, I will not refer to them specifically at this time, but just by way of example, in one of those cases counsel, in fact, objected to questioning of the accused with respect to whether he knew about motive and the learned trial judge as an almost instantaneous response simply said, `That questioning is permissible" and the reason for it was not debated at any length, but it was obvious that it was the understanding of the learned trial judge, "I have been hearing questioning like this for a long time. Prosecutors are allowed to do it", without any real serious consideration of it when the objection was taken.

McHUGH J: Yes, I have to say that in my time at the criminal Bar of New South Wales this sort of question was asked.

MR KENT: It was and, depending on which end of the Bar table you were at, you either enjoyed doing it or you shudder when you hear it, but the matter is being looked at for what it is and the real question is, in our submission, "What is the purpose of the question?", and when it is put in that - with stinging rhetoric, its purpose is to have the jury draw a conclusion on a wrongful basis.

BRENNAN CJ: Well, we understand that, I think, Mr Kent.

KIRBY J: Well, there is, in fact, now a conflict of authority in Australia. There is the E decision in New South Wales which presumably has changed the practice in New South Wales from that Justice McHugh knew and there is this decision. Is there any academic commentary that you have found analysing the two?

MR KENT: No, your Honour, and I might say that I have had limited opportunity to research that because I am currently out of the country and it is difficult to do that and so I apologise for that, but I am not aware of any academic - - -

KIRBY J: There are a couple of articles by Mr Jeremy Ganz that deal with issues relating - analogous questions relating to the direction of the accused's interests and the outcome of the trial, which is a slightly different question.

MR KENT: But it fits under the general umbrella, with respect, your Honour, and we say that this is not necessarily - whilst it is discrete because you can identify the specific questioning, it really fits under the general umbrella of fairness and, I suppose, relevance to some extent, but really fairness. If we could take the Court to the matters where the matter has been revisited, as it were, by the Court of Appeal in Victoria. I should just go back one step. It is not clear that there is a direct conflict between the Victorian court and the New South Wales court.

The Court of Appeal in this case, in Palmer said, we say wrongly, the matter was open as a consequence of the question that was asked of the complainant by counsel for the accused. We say what happened was the topic was raised, but that did not open it as a matter proper for cross-examination and we have effectively canvassed those reasons in the submissions we have made thus far and that is to be found in the answer to the question of, "What is the purpose of the questioning?"

So, it is not every topic that is opened, that is properly opened for the purpose of cross-examination. It is not everything that is said that means we can just go off into that area.

The Court of Appeal in Victoria, in Reg v Rodriguez, a judgment of 13 June 1997, discussed this matter. Justice Hayne, who was part of the court in this case, referred to the matter at page 1 of his separate judgment, and indicated:

Counsel for the Crown invited us to say whether R v F and R v E should be followed in this State.

He said:

I too, hesitate to say anything.....when it is not necessary to do so in order to decide this application.

He referred to the judgment of Mr Justice Callaway in Rodriguez, and said:

there are difficulties in the analysis made in R v E.....I add the following. There are, I think, dangers in presenting the question in the form adopted by counsel for the Crown which was "is it permissible to litigate the issue of motive in cases such as the present?"

His Honour was, with respect, quite correct in saying that. It is, of course, legitimate to litigate motive when there is a proper basis for litigating the question of motive. The question, really, here, is when it is known that the accused is not offering any motive, is it permissible to cross-examine him about it, simply for the purpose of having the jury use that to conclude that the allegations must be correct? Thus:

whether a complainant may be asked about possible motives to lie or make false allegations and whether the accused may be asked about the complainant's motives appear to me to be separate questions.

Indeed, they are. We do not quarrel with what his Honour said there. But, the upshot of it was that his Honour did not consider it necessary to answer the general question in this case.

Mr Justice Charles then dealt with the matter. His Honour pointed out at page 13 of Mr Justice Charles' reasons for judgment:

He submitted -

he is referring to Mr Rapke's submissions:

that the charge was deficient in identifying the question why would the complainant lie as the central issue, but secondly said that the jury could not, in the circumstances of this case, be left with no directions as to how to handle the issue.

The question was canvassed about how do you deal with it when it has happened. His Honour went on at page 14 and said:

I am most reluctant to travel down this path any great distance.....It is therefore unnecessary to deal with this ground.

He found it difficult to offer any general guidance in the course of that case. But, he did discuss the matters.

At page 15 of the judgment he referred to Davies, supporting:

the view that the prosecutor there should not have cross-examined the accused in a way to suggest that the complainant was telling lies and as to the question whether he had any motive for doing so.

He referred to Robinson in Victoria, where it was said that "the interest in the outcome was a matter proper for consideration in assessing your witness's evidence", and as a general proposition, we do not quarrel with that. He referred to the Queensland approach, where a magistrate had said that it was "offensive to suggest, without any sensible reason for doing so, that the complainant would make up a story of having been sexually assaulted". The Court concluded that to do that would effectively reverse the onus of proof. His Honour referred to E at page 17, and he summarised E as saying:

that where there was no direct evidence of a motive for the complainant to lie, nor evidence from which a specific motive to lie could reasonably be inferred, it was wrong to pose to the jury the question: "Why would the complainant lie?"

Now, the question can be posed in many ways and it was posed in this case by the manner of the cross-examination. But, the fact is that in the end result the court did not determine the very question of whether there is a conflict between the court in Victoria and the court in New South Wales. The matter was again considered by the Court of Appeal in Victoria in Costin - the judgment of 7 August 1997. Now, in this case,

Mr Justice Charles again - - -

BRENNAN CJ: What about the criticism by Justice Callaway of

Justice Sperling's analysis in Reg v E?

MR KENT: Yes, well, what the - - -

GUMMOW J: He makes two points.

MR KENT: Yes, your Honour.

GUMMOW J: Mr Justice Callaway has two criticisms of E. What do you say about that?

MR KENT: He said that, in effect, as I understand his judgment, that

Mr Justice Sperling, in talking about the commonsense approach aspect of it, was going further than what Mr Justice Callaway thought the court should go. And, indeed, Mr Justice Sperling's analysis has been considered by other - in one of the subsequent cases in New South Wales where the courts were not prepared to go as far as Mr Justice Sperling did - but there is no criticism, we would submit, of the fundamental proposition that effectively, ordinarily, where there is no evidence of motive, that it is impermissible to raise the question as the central issue in the case or elevate it in that way.

It does not affect the criticism of Mr Justice Sperling's analysis. It really relates to the latter parts of his analysis and not to the earlier parts where he speaks about the impact or the effect that the question might have in terms of reversal of the onus of proof and inviting a jury to speculate. So we would submit that the two things can sit together. You can remove out the latter part of what Mr Justice Sperling said and then find that there is a principle, nonetheless, from the earlier part of his reasoning which is supported subsequently by the Court of Appeal of New South Wales and is tending, perhaps, now to be looked at more seriously by the Court of Appeal in Victoria in its consideration of this question since this case and in Rodriguez and Costin.

KIRBY J: Can I just ask you of the case in New South Wales in which there is some criticism expressed of Justice Sperling? Is that Reg v F? Or is that some other case?

MR KENT: It is Davies, I think, your Honour.

KIRBY J: Davies. Do we have that? Is that a reported decision?

MR KENT: Yes. Davies is, in fact, if I can find my list, I think Davies is unreported, your Honour.

GUMMOW J: Davies is earler, is it not?

MR KENT: I might have given you the wrong name, if your Honour pleases. I am sorry I cannot find my list here at the moment.

BRENNAN CJ: Davies is - - -

MR KENT: I am sorry. It is not Davies. I think that what happened was that in the reporting of the cases that theyhad been reported at later times and I am just not sure of the order of the - I had in mind that - sorry, I just cannot put my hand on that at the moment. I had in mind that the Court of Appeal in New South Wales had, in fact, said that it would not necessarily go so far as to adopt all the reasoning of Mr Justice Sperling.

I am sorry, I simply cannot find that reference and I do apologise to the Court. But we would not urge that the latter part of what Mr Justice Sperling had to say is necessarily the principle to be applied in determining that questions or the issue of this nature should not be permitted. We would submit that the earlier part of his reasoning is appropriate and to be followed.

KIRBY J: This may be Uhrig that you are referring to, at page 15, unreported decision of the Court of Criminal Appeal in New South Wales of 24 October 1996. I think we have access to that.

MR KENT: It is Uhrig, it is actually referred to by Mr Justice Charles in Rodriguez at page 19 of Mr Justice Charles' judgment there, where he is referring to Chief Justice Hunt saying:

His Honour said of the judgement in R. v. E. that he would not necessarily endorse some of the reasons given by Sperling, J. for his conclusions and continued -

"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 emotive to lie which has been asserted in relation to a witness in the particular case.

Well, that clearly must be so. If there is a motive that has been asserted, then it must be able to be litigated, but it is the case where there is no perceptible motive and there is no evidence of motive, that is in the different category. His Honour went on and said:

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.

So that the court there, in Uhrig, is emphasising and recognising, firstly, the danger, and then emphasising the need for the trial judge, even where a suggested motive has been put, to explain to the jury, if you are not satisfied about that motive, it does not elevate the evidence to the status of being true because you are not satisfied of that motive. There may well be another one. His Honour says:

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.

We respectfully agree with what his Honour says there and we do not come to this Court to say this Court should be seeking to lay down a rule that motive can never be raised because that would be to defy common sense. If there is a legitimate basis for raising motive, then it is a matter than can properly be litigated and must be so. But, if I can - - -

KIRBY J: The respondent, in its written submissions, says there is an analogy between raising character and raising motive. If you do it, you do it at your peril. Do you agree with that?

MR KENT: No, we do not agree with that because, and it depends on what it is that is actually done. Raising motive - yes, if you put a particular motive and it can be seen that it is something that is sourced from the accused, the accused, of course, can be properly cross-examined about it. Let us assume that the motive that is raised comes from either an objective assessment by counsel of the evidence as it came out, and it might not have occurred to the accused that there was such a motive, for whatever reason. The accused might not have been able to rationalise that.

There is nothing wrong with counsel suggesting a motive based properly upon the evidence in the case or instructions from another source, other than the accused, as to what the motive might be, such as as a result of inquiries made in the course of preparing for the defence. Now in that situation, cross-examination of the accused about it may or may not be even sought to be engaged in because it is not coming from that source.

If you have got evidence of a motive, the question would then be, even if it did not come from the accused and it might not be the accused's idea, would it be proper to cross-examine the accused by saying, "You have heard material that has come from other sources, but you did not know anything about that, did you?" and the accused might respond by saying, "No, I did not" and then asking the accused, "Do you have any other reason?" and the accused may well respond, "No".

It is of less significance there because the real issue that is being litigated is the question of the motive that has been raised properly by material that is, in fact, put before the court rather than speculative material and it is not just necessarily a matter of opinion. The problem would arise again in this way: if the accused purported to give a motive that was based upon guesswork, speculation or hearsay, the prosecution would probably be objecting to the accused being allowed to provide such an explanation, and properly so, we would say, if it is not properly based.

So that the question of whether motive can be litigated is one that depends upon what basis is motive being litigated. Is there a proper and admissible basis for it? It tends to drift off the issue from the question of saying, "Are we inquiring about things that are properly provable and are properly admitted in evidence or are we asking people to guess?" and if we are asking people to guess then it is not permissible, in my submission and very often that will be the case.

There is a standard objection taken whenever, in cases not of this nature, somebody says, "Why do you think the person would do that?" Whatever case, it might be to do with the driving of a motor car and, of course, there will always be an objection, "You cannot ask that question because it is inquiring as to the state of mind of another", and that, in fact, is what is being done in cross-examination of this nature and we tend to lose sight of that in this context because there is the tendency to say, "If I cannot think of a reason, then the allegation must be true".

If I can refer the Court to Costin at page 14 of Mr Justice Charles' judgment in that case. His Honour earlier had dealt with the - - -

GUMMOW J: That just leaves it up in the air, does it not?

MR KENT: It does leave it up in the air but there is a matter of significance that at page 14, after reference to Mr Shwarz's submissions, who was appearing for the applicant before the court, he said:

He submitted that the effect of these matters was to reverse the onus of proof and to distract the jury from its proper function, which was to determine whether the Crown had proved its case beyond reasonable doubt.

His Honour said:

In response, Mr Gyorffy conceded that the prosecutor's question ("Can you think of any reason why she would say you penetrated her?") should not have been asked and that the defence objection should have been upheld, substantially on the grounds in which objection was made. I agree with this concession.

So that whilst at the end of the day the question is still in the air, his Honour is saying, "I agree with the concession that the question should not have been asked."

BRENNAN CJ: Then he goes on to consider R v F and R v E, at pages 16 and 17, does he not?

MR KENT: That is so, your Honour, yes. The case was determined upon another ground, and that is why his Honour felt - and also, bearing in mind, that this matter was - it was known special leave had been granted to come to this Court at this time; it is understandable that the court did not make a definitive decision when it did not have to in that case. Since leave was granted in this case, the situation is that the whole issue is being reconsidered by the Court of Appeal in Victoria and that the trend is, in my submission, that the Court is moving more to accommodate the New South Wales position.

We submit that the New South Wales position is that it is ordinarily impermissible to cross-examine - the result of it is, it is ordinarily impermissible to cross-examine an accused as to whether the accused knows of any motive for the complainant to lie. We would say it does not have to be a complainant in a case of this nature; it might be any case where allegations have been made directly by a witness against a particular accused, because of the unfairness that flows from the very nature of the questioning.

So that there is a need for guidance on that question. We do say, as was said in Uhrig and referred to by Justice Charles, that it should not be the law, and is not the law, that motive can never be litigated; it can be. And that must follow, and we would submit that indeed that was not the question that Mr Justice Sperling was in fact considering and - - -

BRENNAN CJ: We know what you have said about that.

MR KENT: Thank you, your Honour. If I could move from these first two grounds of appeal and go to the third ground of appeal, that the conviction in this case was unsafe and unsatisfactory. I think it can be dealt with in relatively short compass. Our submission is, in this case, that there were two accounts given in this case. The state of the case at the end of it was that there was, we would submit, no logical basis at the end of the day for the rejection of the account of the accused, and that - - -

BRENNAN CJ: What do you mean by logical basis?

MR KENT: Well, there was no evidentiary material that you could say you can look at the - particularly, if I can call it the alibi material, but the fact of the material he was able to produce about what he was doing on that day, there is no basis of reasoning upon which one could say, "I reject that."

McHUGH J: Why not? Why might not a jury have been very suspicious about his alibi having regard to the fact that the affidavits of service for 5 July were sworn on 6 July, but the affidavits of service for 4 July were not sworn until 8 July?

MR KENT: Your Honour, there is an explanation given about it. One can say - - -

McHUGH J: Well, the explanation is the paperwork might not have been up to date and one might ask, "Well, why wasn't the paperwork up to date in respect of 5 July?"

MR KENT: Your Honour, we would submit that that is, again, not - it is simply not good enough to deal with the question. What more can a person do than what he did in this case? What happened in the Court of Appeal was that both Mr Justice Hayne and Mr Justice Southwell put forward as a possible supporting basis for the verdict in this case that the offences may have occurred on a day other than the 4th and we would submit that was an erroneous approach by the court because the case was at all times litigated on the basis that it did occur on 4 July and that the - - -

BRENNAN CJ: How far is it from Richmond to Thornbury?

MR KENT: Richmond to Thornbury would probably take about 20 minutes at a good time, your Honour. Yes, the prosecution agrees with that, but peak traffic and so on, you could double the time.

BRENNAN CJ: There is still time between 5.10 and 6 o'clock?

MR KENT: Yes, your Honour, and you will see that Mr Justice Brooking, indeed, said that in the course of the judgment that I did not suggest that the fact that there was a teller machine operated - - -

BRENNAN CJ: No, I mean, if there is nothing in it, then there is nothing in it. I just wanted to know what that - - -

MR KENT: But the fact is that the allegation later is that the events occur up to about 9.30 and that the period is - that period is clearly comfortably covered by the service of process by the accused. If one looks at the suggestion that he might have invented that thing, that really becomes quite fanciful, in my submission, to suggest that he, in anticipation of a possible complaint, had before the event occurred left aside material where he could have on the 4th itself done the paperwork for the - I am sorry, where he could have done the paperwork on the 5th but did not and the suggestion that he has held back paperwork to be able to make an alibi is really crediting him with an extraordinarily ingenious approach.

He did not know whether any complaint was going to be made. It was not made until the 18th and yet the material was prepared on the 8th, some 10 days before and there is no suggestion that has been made to him at all in any way that there was ever going to be any complaint against him about anything. So that in anticipation of a complaint that might not be made, it is suggested that he has invented a scheme which involved him committing perjury with respect to each and every one of those affidavits, which could well have been exposed, because he was not to know at any time that any one of the persons upon whom he had served process was not going to be able to say, "That is untrue."

It would have been an extraordinarily foolish thing to falsely concoct. In the context of trying to provide an alibi, once these documents are discovered, it meant that investigators were able to go and ask each and every one of those people whether that was true. Now, how was he to know that one or several of those people might have been able to say, "I can prove I was not even there on that day", and then he would have had a situation where not only he had committed perjury, but also you had a false denial, or an elaborate scheme to avoid conviction which would have been used as a consciousness of guilt against him in this matter. It is just, on proper analysis, the suggestion that he chose this course as providing his alibi, just does not stand up as a matter of logic.

BRENNAN CJ: When did he next see her after 4 July?

MR KENT: There is no evidence of them seeing one another after 4 July. He says he did not see her after 1 July. He says he has not had contact with her since the 1st. There is no evidence of contact after 4 July, but there is no evidence that there was not contact, I think I am correct in saying. I think it is probably safe to assume there was no contact, however. I think the evidence is really left in an uncertain state about that, but certainly, nobody was asked, and nobody gave evidence of any subsequent contact. It would be a reasonable inference, in the context of the case, there was no contact. I think we can make that concession, your Honour. I have some uncertainty about the true state of the evidence on that, but, there is no evidence of contact.

BRENNAN CJ: Was there any evidence given by anybody with regard to a reason for the severance of contact between himself, on the one hand, and the mother and daughter on the other?

MR KENT: It is not canvassed, your Honour. It is not canvassed, at all.

BRENNAN CJ: It is not canvassed.

MR KENT: Like the question of whether or not - the allegation on 4 July is that whilst the complainant was at his home that he checked his telephone messages, and there was a message from the mother saying, "Where the hell are you?", or something of that nature. Reference is made to that, and emphasis is made on that point by Mr Justice Brooking in his judgment. The fact is that was never canvassed in the trial either. Nobody asked him about it - neither his own counsel nor was he cross-examined about it. These are sort of features that, when one looks at the verdict and says, "How can we justify the verdict?", these things are seized upon, but they were not raised as issues in the trial. Like the reasoning of Justice Hayne and Justice Southwell, that, "Oh, well, in any event these things might have happened on a day other than the 4th", when the entire case was run on the basis that it did happen on the 4th; he brought forward a defence with respect to the 4th; it is inappropriate for a court to justify a decision of a jury on a basis that was not left to the jury. It was never put to the jury that they could conclude that these events might have happened on a day other than 4 July. Yet, the Court of Appeal, at least two of them in their judgment, stated that that was a possible justification for the verdict. It cannot be a justification for the verdict when it was not a matter that was litigated and put before the jury.

What the Crown theory was about the material as to the service of process, was that he served the process on the Sunday, the day before, and then subsequently made up that he had served them on the 4th. But there was no evidence to support that theory at all. It was not as if anybody was able to produce - anyone to say, "I was served on the Sunday", and it was merely a speculative theory that was put forward. But it was never put forward by the prosecution that it was possible that these events, themselves, happened on a day other than 4 July.

So, what we submit is that the Court of Appeal has done what we have complained about in this place before: it, instead of making its independent assessment of the facts to determine whether the verdict in the context of that trial was unsafe or unsatisfactory, has looked at a basis for supporting or justifying the verdict that comes other than out of the way in which the trial was litigated itself. It is a justification rather than an assessment saying the verdict is safe.

We have put in our written outline some points about improbability of the accusations. We have a situation where it is claimed that, whilst driving in a motor car for one hour on a route that must have taken the appellant and the complainant through the city of Melbourne to Hampton, that he continually, at that time, had his hand inside her bra and he negotiated his vehicle for more than an hour in that situation, stopping and starting in traffic and driving past the casino. There is particular reference made to that in the evidence.

So, there is inherent improbability in that allegation. It would be extraordinary feat of driving to be able to achieve that. The uncertainty of location - one of the problems - when one makes allegations of a general nature, the location of the commencement of these events as alleged, in a laneway beside a church at 5.30 in the afternoon, the place open to the public, not impossible for things to happen in that situation. But the place is nominated but never located. Just the very suggestion of going to sleep in the car at half past five in the afternoon in a lane in Richmond, and then waking up, and then commencing this continuous indecent assault whilst driving.

There is the suggestion that, at the house, the complainant is on the telephone speaking to her mother and that the accused is, at that stage, indecently assaulting her in circumstances where, on the account given, it has been made plain to him she is not consenting. Effectively, the allegation is that non-consensual sexual acts were being undertaken by the accused in the aural presence of the mother. It defies belief, in my submission.

You add to that the fact that a different account altogether was given to somebody else which she has conceded in cross-examination prior to the formal complaint in the matter. One must have grave disquiet about this case. Then you add in the fact that the accused man is able to produce documents that cover the time when these things were alleged to have happened which indicate he could not have done it.

The Court of Appeal seized a bit upon that issue about the message on the answering machine, but it was not canvassed with the accused. So there is no evidence as to whether he says he ever received that message. You have got the girl saying, "I did receive that message," but she, of course, for a period of some months before - some weeks, has been in contact with her mother and had the opportunity of learning that her mother had left such a message, so that she can say - there is a like an opportunity for collusion. I am not saying deliberate collusion, but there is an opportunity for the young woman to have learned that her mother rang that place and left that message, so that she can add in to her story, if she is fabricating it, that she heard that message when she was at that house, because she wants, if she is not telling the truth, to have it accepted that she was at that house and not at some other place, because in fact if she was not with the accused on that day, she was away from home for a period much longer than she was permitted and she must have been somewhere else other than with the accused.

The mother says, "Well, I received a telephone call from her and she said she was with the accused." That is exactly what she would say if she is doing something she is not permitted to do. She knows she is permitted to be in his company. If she is in someone else's company, without the knowledge of her mother, and beyond the time that she is permitted to be out, she is likely to say, if she is fabricating, "Well, I'm with him," because that will be acceptable, she believes, to her mother. So that the fact that she states those things does not, of itself, independently support the allegations that she makes. The fact that the mother gets a phone call does not prove that the girl was ringing from the accused's home; it proves that she made a phone call to her mother, but from where? It simply depends upon the account of the complainant herself. So that there are grave matters for concern. This is an unsafe and unsatisfactory conviction, in our submission, if the Court pleases.

BRENNAN CJ: Thank you, Mr Kent. Mr Morgan-Payler.

MR MORGAN-PAYLER: If the Court please. The Court will have noted that the respondent is perhaps mostly concerned with the general point of principle raised by this appeal and, in our submission, probably having heard our learned friend's argument, the general question posed in paragraph 1 of the respondent's outline probably accurately raises the issues canvassed in this appeal, in that we do not apprehend our learned friend to be arguing that should such questions of motives for false evidence be raised by an accused in the course of a trial that the matter is not then subject to ordinary litigation.

We perceive our learned friend to assert that in reality, in this case, the question was thrust upon the defence rather than one that is raised by the defence. Whilst the respondent does not concede that argument it might be helpful, in our submission, to look at the question from the point of view of a case where the defence has not chosen to cross-examine a particular witness on the question of any motive for the giving of false evidence.

I suppose one would assume that in most cases the question would be raised by the defence because it is a common sense question.

GUMMOW J: What does "common sense" mean in this realm of discourse?

MR MORGAN-PAYLER: I suppose, your Honour, a question that is initially prominent in one's mind when looking at the evidence, and also a question that arises in ordinary human experience when assessing - - -

GUMMOW J: Humans, by no means, are commonsensical. They are highly irrational in many of their daily activities.

MR MORGAN-PAYLER: It is the sense generally used by people in the common day-to-day dealings in their life. Might we also, initially, make it clear that we are not asserting various propositions. We concede that it is quite correct, as it is stated in F, that it would always be wrong for a trial judge to raise the question of the motive of a witness to lie, to elevate it to the central question or the central theme of a trial because to do so would be to gravely risk reversing the onus. Furthermore, it would be - - -

McHUGH J: What do you say about the statement in Leak, a South Australian case decided in 1969, that a witness can always be asked if he knows of any other reason why a witness should be hostile to him or tell a false story about him?

MR MORGAN-PAYLER: Yes. We would adopt the reasoning of the court in Leak on the basis that, really, if one analyses it, it is impermissible to ask an accused or a witness to place him or herself within the mind of another witness and give a reason but that would be impermissible, but it is quite permissible to ask the witness, "Are you able to advance any reason, are you able to point to any area of evidence or any other fact that might give support to the fact that the witness is lying?" Again, we would adopt the reasoning of the court in South Australia in Leak and we would not argue that it would be permissible, in fact, to ask the question in its form "Why would she lie?", and if the question is to be asked it needs to be asked in more careful form than that.

BRENNAN CJ: Such as, "Why do you think she is lying."

MR MORGAN-PAYLER: Yes, your Honour, that, I think on reflection, would be quite acceptable and, of course, the gradations further down the line.

BRENNAN CJ: What is the issue to which it is relevant?

MR MORGAN-PAYLER: The issue to which it is relevant - twofold, your Honour, but perhaps, mostly it goes to the credit of the witness to whom the question is asked or - - -

BRENNAN CJ: How?

MR MORGAN-PAYLER: Or - on the basis that, in our submission, what was said by the Court of Appeal in Victoria in the Victorian Robinson which is referred to in Rodriguez, I think at page 20 of the unreported. We do have copies of the reported Robinson if that would assist the Court. We would add that while an accused person is not called upon to establish some motive for a complainant to make allegations of sexual assault, the fact that no sensible or acceptable motive could be put forward by the defence is not without significance.

BRENNAN CJ: What is the significance?

MR MORGAN-PAYLER: The significance, your Honour, is simply that, the absence of a motive. That is why it would be wrong to - - -

BRENNAN CJ: In other words, it is relevant to ask a witness, "Does that person have a motive for telling a lie?"

MR MORGAN-PAYLER: Put another way, your Honour, "In the light of your experience and knowledge of that witness, be it in light of the fact that you have shared a house with that witness for 10 years or that you have had a friendship with that witness in the following circumstances" - that the witness is then unable to point to some fact or circumstance within that relationship.

BRENNAN CJ: So you are asking witness A for any knowledge of facts which might be relevant to the credit of witness B, is that right?

MR MORGAN-PAYLER: Any knowledge that might be relevant to whether witness A is able to - I am sorry, your Honour, I am going in circles there.

BRENNAN CJ: We understand the question. The relevance of it, what is the issue to which it is relevant?

MR MORGAN-PAYLER: In our submission, the credit of witness A.

BRENNAN CJ: The credit of?

MR MORGAN-PAYLER: Of witness A or witness A's account, it simply goes to probabilities.

BRENNAN CJ: If witness A is asked, "What do you know that might show something about the motive of witness B?" and the answer is, "No", or if the answer is "Yes", how does that assist the credit of witness A?

MR MORGAN-PAYLER: It assists the credit - it positively advances the credit of witness A if witness A is able to say, "Yes, I have known witness B for the past 10 years. We have a very acrimonious relationship."

BRENNAN CJ: How does that assist the credit of witness A? That may or may not be true.

MR MORGAN-PAYLER: Yes, if true or if witness A is able to point to other areas of evidence, discrete areas of evidence, which relate to the same proposition.

BRENNAN CJ: I do not understand how a question, "Do you know something?" and an answer to that question can possibly throw any light upon the credit of the witness who answers it.

MR MORGAN-PAYLER: If not the credit of the witness, your Honour, the credit of the account in that it is, in our submission, a legitimate form of reasoning to submit that if a witness - and it depends entirely on the circumstances, but in the appropriate circumstances that if a witness is unable to point to some factor that might have encouraged false evidence to have been given, then the account of that witness is less likely to be accepted by the tribunal of fact.

BRENNAN CJ: Well, if that is not a reversal of onus, I do not know what is.

MR MORGAN-PAYLER: No, your Honour.

McHUGH J: It cannot go to the witness' evidence, can it? If you asked the accused that question, it cannot go - do you say it goes to the accused's credit?

MR MORGAN-PAYLER: Or the credit of his account, your Honour, just like any cross-examination. Once an accused goes into the witness box, your Honour, he can be called upon in cross-examination to explain, to justify, to clarify and, indeed, he can be given the opportunity to point to evidence or material. That is how his account is tested.

BRENNAN CJ: That is relevant. All we have to do is to find something to which it is relevant.

MR MORGAN-PAYLER: Yes, and, in our submission, it is a relevant consideration for the tribunal of fact that that particular witness, when he challenges the account given by another witness does not, either in his evidence or, if he does not give evidence, in the version of facts advanced on his behalf, does not point to some fact or circumstance.

McHUGH J: But the evidence in so far as it has got any relevance goes to attacking another witness' evidence, does it not, to undermine another witness' evidence? Now, unless I have forgotten the rules, you can always lead evidence about bias and, if you have got positive evidence, you can lead that to show that the complainant, for example, is biased and had a reason, but if the accused has not made it an issue or even if the accused has made it an issue, how can you ask the accused whether he knows of anything? You are asking him whether he knows something that indicates bias on the part of the complainant, are you not?

MR MORGAN-PAYLER: Well, you are asking the accused does he assert bias, in effect, your Honour, the effect of the question. Might I put it another way, your Honour. If it be relevant and permissible on behalf of an accused to attack a witness and, of course, this question can only arise when issue is taken with the evidence of a witness, once issue is taken, if it be relevant to attack that witness, to establish bias or one of the other attacks and, particularly, in so far as this appeal is concerned, to attack that witness and point to reasons why that witness may have given evidence that is untrue.

In our submission, the issue is raised when simply the assertion is put to the witness in cross-examination. "Witness, I put it to you your evidence is untrue." But to go further - - -

KIRBY J: I suppose the logic that you are urging is most people do not tell such grotesque lies as would expose a fellow human being to the ordeal and risks of loss of liberty and reputation of a criminal trial. The complainant is in court, has had some relationship with the accused, the accused is in court, subjected to questioning and, therefore, you can ask the accused is there anything in the background of their relationship which would explain why such an evil and wicked thing would be done as to tell such lies that would expose the accused to such tremendous risks.

MR MORGAN-PAYLER: Yes, and on the other side of it, yes, one is entitled, if an accused does not advance bias - - -

KIRBY J: The peril of it, of course, is that the accused may just have no conception. We start with the presumption of innocence and the accused may just not know. It may not even be known to the complainant.

MR MORGAN-PAYLER: Exactly, your Honour, which is why it must never be raised to the central issue on a trial. It is just one of the many issues, depending on the circumstances - - -

KIRBY J: Once raised it may poison the well, that is the problem, and the question is whether the court should strive to stop it being raised because of the risks or, once it is raised, to require very strong warnings to be given that - or require warnings to be given anyway, because of the fact that the jury may speculate.

MR MORGAN-PAYLER: In our submission, a warning probably ought to be given in any event but, in our submission, when the question is appropriately relevant in a trial, it ought not be prohibited but it ought be dealt with by the trial judge. Dealt with by keeping it in its proper perspective and ensuring that the jury is well aware of the onus of proof and, particularly, of ensuring the fact that an accused or other witness is unable to provide material that might suggest some motive is only significant and is not conclusive of that point.

If a trial judge cautions a jury in respect of each of those areas, then the jury can properly deal with the question which, I think, the Court has already, this morning, pointed out with the question that may very well be the first question raised in the jury room in any event in certain cases.

BRENNAN CJ: No, there will be two questions raised in the jury room. They will both be raised at the same time. What motive has the girl for telling a lie and what motive has the accused for telling a lie? Those are the two questions.

MR MORGAN-PAYLER: The second one will have been already dealt with in the trial judge's charge.

BRENNAN CJ: In what way?

MR MORGAN-PAYLER: When he has told the jury that - or in part it will be dealt with. His Honour Justice Kirby raised the question of Stafford and Robinson, and the interest of a witness in the outcome. That question will have been dealt with when the trial judge - - -

BRENNAN CJ: This Court has dealt with the second of those questions in Robinson.

MR MORGAN-PAYLER: Yes.

BRENNAN CJ: What is the difference of Robinson and this in terms of principle?

MR MORGAN-PAYLER: The trial judge has told the jury that the accused is simply another witness and ought be regarded as so. That question has been put to bed as far as the jury are concerned when they have been told they ought regard the accused simply as another witness in the matter, which then takes the jury back to the other of the two questions that your Honour posed.

KIRBY J: Is it not more consistent with the approach which this Court has taken in Robinson to say that you ought not get into this, and if you do, that the judge has to give an extremely strong warning because of the dangers?

MR MORGAN-PAYLER: Firstly, in my submission, to do so may deprive, in appropriate cases, the jury of the benefit of a legitimate area being explored with the accused, and deprive the jury of the benefits of submissions on that particular point from either party, and indeed, might even place the accused in a position where he suffers at the hands of a jury unguided, dealing with a question that has been forbidden during the trial, but the jury, nevertheless, sitting down and perhaps raising that question at the forefront.

BRENNAN CJ: Mr Morgan-Payler, take the circumstances of this case.

MR MORGAN-PAYLER: Yes.

BRENNAN CJ: You have the girl sitting in the court; the accused giving evidence under examination-in-chief that nothing happened on 4 July - reaching the end of his evidence-in-chief. He is giving a denial of the essential elements of the crimes charged against him. The girl is either crying, or if the tipstaff is right, rolling her eyes and mouthing things at the jury. The jury is sent out; comes back, and the first question, "You have no reason to think that this girl is telling a lie, have you? You know of nothing?". I cannot think of a greater method of bludgeoning an accused in the witness box than questions of that kind in that circumstance. Relevant, I would have thought, to nothing.

MR MORGAN-PAYLER: I think your Honour posed that same question when this matter was on for special leave.

BRENNAN CJ: Yes.

MR MORGAN-PAYLER: The submission - really, it is a fairly simple one - if it be relevant to attack the witness and to establish bias - - -

BRENNAN CJ: If it be relevant to an issue or a fact that is deemed to be relevant to this issue, then it is admissible, and it can be pursued as far as need be within the limits of cross-examination. If it is not relevant to something, then it should not be pursued at all, and in the circumstances of this case, I could not think of a situation which was more calculated to destroy the credit of the accused than the sequence of events that occurred.

MR MORGAN-PAYLER: Might we, just for the moment, your Honour, deal with the question in the abstract. If it be relevant to establish material suggestive of bias, then, in our submission, it be equally relevant to establish that there does not apparently - that material does not apparently exist.

KIRBY J: But bias must be affirmatively raised by the accused.

MR MORGAN-PAYLER: Yes, and, in our submission, once issue it taken with the evidence, as in cases of this nature, issue is taken by saying, "I put it to you, witness, that your evidence is simply untrue."

KIRBY J: That has to be in every case of oath against oath. Counsel would have to put that.

MR MORGAN-PAYLER: It has to be in every case, yes.

KIRBY J: And therefore in every case your logic is that you can open up a lack of motive of which the accused may have no conception at all, and that may do a lot of unfairness to - - -

MR MORGAN-PAYLER: There may be cases where it is simply totally irrelevant, your Honour, like, in a situation where the accused and witness have never met. Because, again, in our submission, it is not helpful to confine this discussion to complainants in cases of sexual assault. If there is to be a rule, in our submission, surely it must be a rule of general application and there ought not be further special rules made for a particular class of witness. If there is to be a rule of general application, it is submitted it will be a rule that operates harshly, potentially on both parties: "I suggest to you, auditor, that you are lying because you have a very close relationship with a director of the opposing company," or - - -

KIRBY J: That is bias. That is an out and out - - -

MR MORGAN-PAYLER: That is a suggestion of bias, again - - -

KIRBY J: But just to say, "I suggest to you, you are lying," and not knowing why the person lies, because the accused does not know.

MR MORGAN-PAYLER: Yes.

KIRBY J: I mean, it is very hard sometimes for the accused to get into the mind of the complainant or accuser.

MR MORGAN-PAYLER: And a jury should be told that, your Honour. In our submission, it is far preferable for the jury to be properly instructed and carefully instructed and reminded of such matters that are, on a moment's reflection - and every juror, on a moment's reflection, would see, of course, of course an accused may not know a reason for bias or a motive for giving false evidence. But the facts, in the circumstances of the relationship between this accused and this witness, that the accused is unable to point to any such circumstance, is a matter that we can take into account when either assessing the credit of the accused's account, or the account that is advanced on his behalf, or perhaps when looking at the evidence of the witness.

KIRBY J: This is an area uncontrolled at the moment by statute.

MR MORGAN-PAYLER: Yes.

KIRBY J: It is common law practice. Have you researched what the common law practice position is in Canada, New Zealand, the United States, Britain?

MR MORGAN-PAYLER: Yes, to some extent, your Honour, and we might provide what assistance we can, at this stage, to the Court. Firstly, in respect of other States, leaving aside Leak in South Australia, in Queensland there is the case of G [1993] QCA 267; (1994) 1 Qd R 540, and it is really simply authority for the proposition that it is a - if I might just read the first few lines from the headnote it would assist the Court as to the direction that case takes:

It is a misdirection for a judge to direct a jury in a sexual abuse case that ordinarily a young complainant is unlikely to invent and adhere to a false story, because that tends to reverse the onus -

That seems to state the law as it is and ought to be. There is an unreported Queensland case of Hunter v Friedman of the Court of Appeal in Queensland, delivered on 9 November 1994. That dealt with findings made by a magistrate and, in particular, the magistrate, considering it to have been unbelievable that a complainant had concocted her story. Again, the Court of Appeal felt that the magistrate had again reversed the onus by coming to his findings on the basis that he could not accept and could not believe that the complainant had concocted her story.

I am instructed that there is an unreported decision of the Court of Appeal in Western Australia which I regret and apologise I am unable to provide the Court a copy of it, a case of H. A judgment delivered by the Court of Criminal Appeal in Western Australia on 29 July 1994.

We were able to locate a Canadian case of the Reg v HPP, a decision of the Manitoba Court of Appeal, 112 CCC (3d) 140. We do have copies of that case which we can provide to the Court. Again, if it assists the Court there, that decision simply confirms that, generally speaking, it is objectionable to ask a witness to express an opinion whether another witness is lying since the opinion of one witness about the veracity of another is simply not relevant. The court went on to confirm:

Whether there is a motive to concoct or falsify is always relevant, and is a factor that may properly be taken into account in assessing credibility, so long as the trial judge does not fall into the trap of placing undue emphasis upon the determination of whether a motive has been demonstrated or not.

I think that was an appeal from a judge sitting alone hearing a matter on indictment. Also, your Honour Justice Kirby asked as to whether there was any article on - - -

GUMMOW J: What was the citation of that case again? I am sorry, to take you back.

MR MORGAN-PAYLER: (1996) 112 CCC (3d) 140, and I do have five copies.

GUMMOW J: Thank you.

BRENNAN CJ: You can hand those up, if you would please.

MR MORGAN-PAYLER: There are five copies for the Court.

KIRBY J: The Supreme Court of Canada has not dealt with this issue?

MR MORGAN-PAYLER: Not that we could discover, your Honour, no. Mr Jeremy Ganz, who recently published an article in respect of the Robinson/Stafford Cases that emanate from this Court, has written a draft article for the Sydney Law Review that relates to this very appeal and I have been provided - he was sitting in Court earlier - he is probably still in Court, your Honour. He has consented, although it is simply a draft of that article, for copies of that article to be made available to the Court if it assists.

BRENNAN CJ: Are you making this as part of your submission?

MR MORGAN-PAYLER: Yes, your Honour. If we might, we will provide it to the Court.

BRENNAN CJ: And are you adopting what is in the article as part of your submission?

MR MORGAN-PAYLER: Much of what is in the article, yes.

BRENNAN CJ: Well, what that is in the article?

MR MORGAN-PAYLER: There is a helpful discussion, your Honour, of various authorities. There is also the proposition in that article which, again, we have submitted to this Court that it is preferable for these questions to be dealt with at trial as they arise by the trial judge rather than to have an exclusionary rule of material that may very often be relevant. It is a matter for the Court. It was simply that your Honour Justice Kirby did - - -

KIRBY J: This will be published in due course in the Sydney Law Review, will it?

MR MORGAN-PAYLER: I am instructed in December of this year, your Honour.

KIRBY J: I will probably look at it then.

MR MORGAN-PAYLER: As your Honour pleases. It was, in effect, to answer your Honour's query.

BRENNAN CJ: The view of the majority of the Court, Mr Morgan-Payler, is that the Court would not accept an unpublished article unless it is adopted by you as part of your submission.

MR MORGAN-PAYLER: Yes, your Honour. In that case I will not advance it.

BRENNAN CJ: Yes.

MR MORGAN-PAYLER: It was more - his Honour Mr Justice Kirby queried about whether there was any academic work on the area to assist the Court and it was more to inform and assist the Court that we drew that to the attention of the Court.

KIRBY J: I assume this matter will be reserved and that it will be published in its final form in due course.

MR MORGAN-PAYLER: I am instructed in December, yes, so - - -

KIRBY J: I will have to say to you that I will probably have a little peep at it, at that stage.

MR MORGAN-PAYLER: Yes.

KIRBY J: In case you want to say anything about it.

MR MORGAN-PAYLER: One would assume. Might we submit that the question in the form in which it - I suppose in its final form in which it comes before this Court - is not a question that will arise often in that, in our submission, generally speaking, this is a matter that will have been canvassed initially by the defence regardless of when issue was taken with the evidence of any witness in any case, if possible, the defence will canvas with that witness the reason why the witness is given false or incorrect evidence.

BRENNAN CJ: Do you wish to argue that in this case the question was raised first by the defence?

MR MORGAN-PAYLER: It was, your Honour, in that on numerous occasions - and the various page references appear in our outline - I will take the Court through them.

BRENNAN CJ: There is no need to,

MR MORGAN-PAYLER: On numerous occasions it was put to the witness that she was lying.

BRENNAN CJ: Yes.

MR MORGAN-PAYLER: It was put to the witness and, indeed, one of the possible motives was put to the witness that she had told a friend on a previous occasion that she had "a crush" on the accused.

GUMMOW J: This is paragraph 2.1 of your outline has the page references, does it not?

MR MORGAN-PAYLER: Yes, your Honour, and might we apologise, in the second-last line on that page we have slipped into transcript page numbers rather than appeal book. It should read appeal book 185 and 250. We apologise to the Court for that. On each of those numerous occasions and having been put to the witness that she had lied, eventually the response came from the witness, "Why would I lie?"

In those circumstances, particularly when, I think at 66, very early in the cross-examination, the earlier conversation with her friend was put to her and then that was returned to later. It is submitted for the purposes of this case, yes, the question was fairly and squarely raised by the defence. The witness took it up because, again, it is a natural response that flows from the allegation of lying - "But why would I?". Thereafter, the accused, through his counsel, went further and put to the witness a possible motive for lying.

BRENNAN CJ: Being? Being what?

MR MORGAN-PAYLER: Being that the accused had, in some way unknown to him, offended, transgressed in some way towards the witness. That highlights, in our submission, your Honour, to the jury the very vice that must be guarded against namely, very often an accused person will not be able to provide a motive and, indeed, the learned trial judge in passages other than those referred to by our learned friend in the earlier part of his charge on this point, went to great lengths to ensure that the jury were well aware that many people lied in many different circumstances, very often for reasons that could never be determined.

The Court might have noted, his Honour went on to explain to the jury why the court was conducted in such formality with a witness box because experience had shown, very often, that witnesses regularly lied and - - -

BRENNAN CJ: Does that raise this question, that if counsel for an accused puts to a prosecution witness the question, "You are lying for some unknown reason", that that then allows the prosecutor to cross-examine the accused by asking, "Do you know any reason why that witness would lie?"

MR MORGAN-PAYLER: Yes, but the question would probably be rhetorical and redundant in that the foundation has been laid for the comment to the jury later on, through the question that - - -

BRENNAN CJ: But the question that I asked you was, do you say that that question then can be asked.

MR MORGAN-PAYLER: Yes, your Honour.

BRENNAN CJ: Even though the answer to it, in a sense, has already been telegraphed by the cross-examiner in the first instance?

MR MORGAN-PAYLER: It may be an offensive question simply because it is a comment rather than a question in those circumstances.

BRENNAN CJ: What about these circumstances here? "You are lying for some reason which he does not know about".

MR MORGAN-PAYLER: Save the earlier passage that had been advanced on behalf of the accused, of course, namely that the complainant had said to another person on another occasion that she had had a crush on him.

BRENNAN CJ: That is not suggestive that the accused was present at that time, is it?

MR MORGAN-PAYLER: No, it is not, your Honour, but it is a piece of evidence that he is entitled to point to.

BRENNAN CJ: But the question that is asked of him is "Do you know".

MR MORGAN-PAYLER: Yes, "of any reason, or can you point to any circumstance?". In fairness to the witness, if a comment is to be made, in our submission, it is appropriate to say, "Not only do you personally know of any reason, but can you point to any circumstance, any evidence that is before this jury that might produce false evidence from that witness".

BRENNAN CJ: Yes, I understand your submission.

MR MORGAN-PAYLER: That is the way it is put, certainly in respect of this appeal. I suppose, your Honour, there is three levels: there is the situation where it is put by the defence to a witness, "You are lying because", and then a number of concrete, definitive reasons are advanced.

Clearly, then, the issue is an open one which will be litigated throughout the cross-examination of the accused, should the accused give evidence, in addresses and no doubt covered by the trial judge in his charge. The circumstance that your Honour the Chief Justice raises, namely, the defence raising, in cross-examination, the fact that there must be a motive but it is a motive unknown to the accused, again, in our submission, that certainly opens the matter up for comment in final address. Whether or not it be a relevant topic of cross-examination, really depends - it is probably technically, it is not a relevant topic of cross-examination, your Honour, because it is a rhetorical question, although counsel ought perhaps be entitled to simply confirm, in cross-examination, so there be no misunderstanding, that the accused points, or the witness points to no particular fact, happening or circumstance which might have produced false evidence.

The final situation, which is perhaps the one that might be most helpful in that it crystallises the issues, are where although issue is taken with the evidence of the witness, no motive is put to the witness and the accused does not give evidence. In those circumstances, again, it is submitted, it would be appropriate and legitimate for a prosecutor, in a final address, to assert that when the witness was cross-examined on behalf of the accused no reason was advanced or motive was advanced as to why the challenged evidence might be false. Again, in our submission, a legitimate area of inquiry and, certainly, subsequently, comment in front of the jury.

It would apply to all sorts of witnesses although often cases of sexual assault, by the very nature of the allegations, various other assaults, particularly, where there is an injured complainant, as it were, who was the principal witness. In those circumstances, where the evidence is challenged, where issue is taken with the evidence, in our submission, if it be relevant for an accused to adduce evidence of bias, then it be equally relevant for the Crown to be permitted in cross-examination or, indeed, in comment to the jury to balance those books, being ever careful of the rules that have already, we would submit, been established in the cases, namely, that one probably ought not put the question in the form, "Why would he or she lie?"

Secondly, the question usually ought never, and would never be elevated to the principal question of the trial. And thirdly, the material would always be subject to the rider and to the careful instruction from the trial judge, the fact that one witness is unable to advance a motive for false evidence against another witness is certainly not conclusive of the matter and will have varying relevance depending entirely upon the circumstances. But in, for example, the circumstances of a long and close relationship between the witness and the accused, it may be a matter of greater weight than circumstances where the witness and the accused had never met until seconds before the incident complained of, for example and, indeed, in circumstances like that it may simply be irrelevant.

That is the way the respondent would urge this Court to view the matter. Put another way, the present rules of evidence, if applied correctly on a case-by-case basis, can properly deal with this question which can sometimes be a difficult question without the necessity to impose an exclusionary rule that may, in some cases, remove a legitimate area of inquiry for the fact finding tribunal and, indeed, may very conceivably, in certain circumstances lead to an injustice as far as an accused is concerned.

It is a little bit like the Weissensteiner situation where in some jurisdictions any comment on the failure of an accused to give evidence is prohibited, although the law is clear the jury is entitled to use that fact and it would be our submission in those jurisdictions there is a danger that an accused will suffer an injustice by the jury misusing that evidence without the benefit of any assistance whatsoever from the trial judge. Similarly here, even if there be prohibition, it be a question that is so likely to be such a prominent question in certain cases it would, in our submission, be far preferable for the question to be faced and for the jury to be guided, assisted and, more importantly, told what that they may and what they may not do with that particular aspect of the evidence rather than to prohibit reference to it and to leave the jury at their own devices.

To prohibit reference to it but to require the trial judge to say something, of course, again will deprive the jury of having had the benefit of the submissions of each of the parties on the question. Again, in our submission, a significant matter in so far as the jury is concerned.

BRENNAN CJ: Does that conclude your submission on this aspect of it?

MR MORGAN-PAYLER: That concludes our general submissions. As to the remainder of the particular submissions in respect of this appeal, we think we can probably rely on our written outline, particularly in respect of the unsafe and unsatisfactory ground. The judges below, in our submission, carefully analysed the evidence. No error, in our submission, is shown by the appellant in respect of the task carried out by the Court of Appeal and, indeed, no misapplication of the law in so far as that is concerned. So, if it please the Court, those are the submissions for the respondent.

BRENNAN CJ: Yes, Mr Kent.

MR KENT: Thank you, your Honour. Just briefly, the argument that to put to a witness that they are not telling the truth opens up the question for cross-examination of the accused as to whether or not he knows a reason why they are lying, is not a logical and proper argument. That would mean that in any case where there was any contest this line of questioning would be proper, but it cannot be shown to be relevant. It is not open by the fact that counsel said she was not telling the truth. My learned friend said that the questioning of the witness about having said she had a crush on the accused was opening up the question of motive. The questioning was at pages 66 to 67. What was being put was not that that was a motive, it was being put she had made a prior inconsistent statement about what had happened to her. It was not suggested; it was not said, "You are telling lies because you had a crush on him". It was put, "You told your friend you had a crush on him". It was not put that she, in fact, had a crush on him. It was put, "You have made up a story in the past about this man", and it was designed to damage her credibility as being a prior inconsistent statement about what she was alleging.

The general question of, "to what was it relevant to ask him in this case", has not been able to be answered, in our submission. If the Court pleases.

McHUGH J: Just before you sit down. On the alibi, the accused swore an affidavit of service on a man named Kyriakou for 9 pm at Thornbury. He also swore three affidavits of service at 9 pm, two minutes past nine, and six minutes past nine, for three people at Northcote.

MR KENT: Yes, your Honour.

McHUGH J: When he was in the witness box he said it was a mistake about Kyriakou, that he did not know whether it was am or pm. What do you say about that, particularly since, if he did serve the Kyriakou one at 9.00 am, it would be the only one that he had served anywhere near that time. As far as I can see, it was another three hours before he served any other affidavit of service on that day. The next one I can see is at 12.21 pm at Fairfield.

MR KENT: I do not know the answer to that, your Honour. Probably I should just clarify one thing: I think it was your Honour asked me the question before about how long does it take to get from Richmond to Thornbury.

McHUGH J: I notice there is a map at page 482 in the book.

MR KENT: Yes. The subsequent activities, of course, occur at Hampton, which is appreciably further away, so that the time frame for the events to occur at Hampton is rendered very, very difficult; well, impossible in terms of those times, whereas there is, theoretically, a time for the commencement of the activity but not what happens thereafter. Your Honour, that is the thrust of that material.

BRENNAN CJ: It could not happen thereafter consistently with the affidavits of service?

MR KENT: Yes, yes.

McHUGH J: The affidavits for service, if they were accepted, seem to show almost an unbroken amount - a series of services between 4 o'clock in the afternoon and 18 minutes past 9.

MR KENT: Yes, your Honour.

McHUGH J: At very short intervals. I think about the longest interval is between 6.20 and 7.10 and then between 7.10 and 8.09.

MR KENT: Yes, your Honour. Yes, they were council rate notices, so that they were matters in a local area and he was able to serve them. It was not as if they were just random selected matters, they were for a particular client relating to people resident in that location. So there is a succession of them and it is a matter of going down the street, effectively, and serving those notices. If the Court pleases.

BRENNAN CJ: Thank you, Mr Kent. The Court will consider its decision in this matter and we will adjourn until Monday next at 9.30 am.

AT 12.55 PM THE MATTER WAS ADJOURNED