R v Leef CA14/06 [2006] NZCA 442 (24 August 2006)

Last Updated: 29 January 2014

˝ NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

_˝

IN THE COURT OF APPEAL OF NEW ZEALAND

CA14/06
_CA57/06

THE QUEEN

v

_{RENO LEEF}

Hearing: 19 July 2006

Court: William Young P, Williams and Venning JJ Counsel: W C Pyke for Appellant

K B F Hastie for Crown

Judgment: 24 August 2006 at 11am

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed and a new trial ordered.

B The appellant is remanded in custody to a callover in the Tauranga District Court on a date and time fixed by the Registrar of that Court. Any question of bail is to be dealt with by that Court.

C Not to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.

R V LEEF CA CA14/06 24 August 2006

Williams and Venning JJ [1]

William Young P [55]

REASONS OF WILLIAMS AND VENNING JJ

(Given by Williams J)

BACKGROUND

[1] Following trial in the Tauranga District Court in mid-November 2005 the appellant, Mr Leef, was convicted on two counts of sexually violating the complainant on 7 January 2005 by digital penetration and by rape.

[2] On 9 December 2005 he was sentenced to nine years’ imprisonment. [3] He now appeals to this Court against those convictions.

[4] He also appealed against sentence but his counsel, Mr Pyke, advised us that, although he was unable to withdraw that appeal, he had not been given instructions on the matter and accordingly could not pursue it.

Facts

[5] Only a relatively brief survey of the facts is required.

[6] About 6:00am on 7 January 2005 the complainant was awoken by Mr Leef knocking at her door. Some weeks previously she met him when a friend called with him. During that visit she said he rudely asked her for sex. She rebuffed him. In his evidence at trial, he denied there was any dissension.

[7] On 7 January when she answered the door she said the appellant offered her a “fry”, meaning methamphetamine and other drugs. She declined them. The appellant’s version was that he called to offer or sell the complainant a bottle of methadone. She was on the methadone programme at the time and had illicitly purchased methadone in the past.

[8] She said he asked for sex. She refused.

[9] After some further conversation, the respective details of which diverged markedly, the pair went to her bedroom, she said at his insistence and when she was frightened and crying, he said because she offered him sex for the methadone, and, perhaps, a small loan. She said he locked the bedroom door.

[10] They disrobed – she said at his insistence and because she felt she had no choice - and he asked if she had any condoms. She obtained two from a bedside cupboard and threw them at him.

[11] She then refused the appellant’s demand for oral sex but acceded to his insistence she digitally stimulate herself. They differed as to the reasons.

[12] She said he then fondled her breasts, masturbating as he did so and then attempted penile penetration. She said that he successfully penetrated her vagina part-way for a “couple of minutes” despite her opposition. He was then wearing a condom.

[13] She said the same sequence was then repeated with him digitally penetrating her and achieving partial penetration, this time wearing the second condom, the first having been discarded.

[14] We record that the appellant’s version differed substantially from that of the complainant both in sequence and, especially, as to her participation. Both in the appellant’s written brief and his instructions to trial counsel – not Mr Pyke – and in evidence, he claimed all the activities between the pair were consensual but that, when the complainant disrobed and he saw her numerous tattoos and scars of self- mutilation, he lost interest and was unable to achieve a full erection. Wearing the condom he said his penis was “between her legs” but there was no penetration. He denied digitally penetrating her at any time.

[15] Mr Leef’s instructions to trial counsel were to raise the defences of consent and lack of penetration. He instructed counsel he wished to give evidence and that he wanted the complainant’s character put in issue, despite the likely consequence –

as occurred – that his character and numerous previous convictions would be challenged or put to him in cross-examination.

Grounds of appeal

[16] Mr Pyke advanced the following grounds of appeal :

(a) Errors in the summing-up including incorrect directions on the standard of proof and motive.

(b) Trial counsel failing to cross-examine the complainant on her earlier statements, which were inconsistent with her evidence as they did not assert digital or penile penetration.

(c) Improper cross-examination by the prosecutor on privileged communications between the appellant and trial counsel.

[17] There were other grounds notified but either not pursued or not strongly pursued. They included:

(a) an assertion that trial counsel incorrectly agreed to the filing of s

369 admissions concerning ESR evidence, when reading the ESR briefs would have put before the jury additional material which might have been helpful to the accused. Mr Pyke did not abandon this ground but conceded it was of significantly less weight than other issues raised on the appellant’s behalf;

(b) an objection was also taken to the examining doctor’s brief containing a summary of the complainant’s version of the facts. The brief had been read. The Crown accepted it would have been preferable for that passage to have been excised. Again, however, that point was accepted as only of minor significance.

Asserted errors in summing-up

Directions on motive

[18] The summing-up followed orthodox form. Following the usual evidential directions and directions on the elements, including drawing the jury’s attention to the contentious issue of penetration, the summing-up then contained a detailed factual survey in which, no doubt helpfully for the jury, the Judge carefully contrasted the two versions of events. Summaries of the respective addresses then followed. That was followed by a further brief recapitulation of the parties’ cases.

[19] To complete the summing-up there then followed a direction that the jury should take into account the “motivations which the parties, the two main witnesses, might have in their respective accounts”. After dealing with the Crown’s submissions endeavouring to rebut the suggestion that the complainant might have fabricated her account - the “why would she lie?” point which commonly arises in cases such as this – the Judge continued :

[77] The Defence argument is to the contrary, as we have discussed, but if you look at the question of motive, why would the complainant make the allegations she has in all of those circumstances? Then compare that with the accused’s situation. Of course, it is trite to say that an accused person has the best motive to be giving an untruthful account, because he is the person on trial. That ultimately is a matter, which you must determine in your assessment of the facts. Remember that Mr Leef does not have to prove his innocence. He does not have to prove anything at all. It is for the Crown to prove that he is guilty of each of the counts in the indictment.

(Italics added)

[20] It is the italicised passage which gives rise to concern. It is not unlike the directions which led respectively to a retrial and an acquittal in Robinson v R (1991)

[1991] HCA 38; 102 ALR 493 and R v Bentley [2001] 1 Cr App R 307 at 326.

[21] In the former, a rape charge where the defence was consent, the trial Judge, seemingly as part of what in New Zealand would be regarded as a direction under the Evidence Act 1908 s 12C, told the jury on two occasions that the “accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you

should scrutinise his evidence closely”. The High Court of Australia observed that

(at 495):

If the jury accepted that suggestion, as they almost certainly would have, his Honour’s directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury’s preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a “suspect witness” in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as “suspect witnesses”, that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny. ... Furthermore, his Honour’s directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.

[22] Bentley was the famous case in which Bentley and another young man were charged with shooting a constable in late 1952. Bentley was hanged in January

1953. In 2001, following reference of the conviction to the Court of Appeal by the Criminal Cases Review Commission, Bentley was posthumously acquitted in the judgment under consideration.

[23] The summing-up of Lord Goddard CJ is too long to repeat in full but was strongly critical of the defences of accident and Mr Bentley’s being unaware of his co-accused’s intentions. It included demonstrations by the Judge with the knives and knuckle-duster which were part of the evidence, followed by an encomium to the bravery of the police officers. Then, after recording Mr Bentley’s denials that he knew his co-accused was armed or said “let him have it”, the Judge went on to describe the denials as being the “denial of a man in grievous peril”. The Court of Appeal described the language used throughout the summing-up as a “highly rhetorical and strongly worded denunciation of both defendants and of their defence” and a denial of fair trial (at 333, 334).

[24] The direction in Mr Leef’s case was, of course, nowhere near as extreme as that in Bentley but nonetheless, with the High Court of Australia in Robinson, we take the view that a Judge should not direct a jury that an accused has a stronger motive to give an untruthful account than the complainant or other witnesses. That said, in most cases an accused may in fact have a greater motive to lie than other witnesses. That is precisely for the reasons outlined in Robinson and Bentley: he or she is in the greatest peril in a trial and thus under the greatest impetus to lie to escape it.

[25] However, such is not always the case: complainants can also be tempted towards fabricating evidence which they think most likely to convict the person whom they believe is responsible for the actions against them which are the subject of the charges.

[26] Further, in trials where, like the present appeal, the credibility of the two principal actors is crucial and defence counsel often lay significant stress in their addresses on indicia of fabrication by complainants, the rejoinder of prosecuting counsel, particularly in cases where the accused has not given evidence, is often restricted to little more than advancing reasons as to why the complainant is unlikely to have lied and subjected herself or himself to the trial process.

[27] The “why would she lie?” point was discussed at some length by this Court in R v T [1998] 2 NZLR 257, 265-266. We can do no better than repeat what was said in that case:

We accept that the proposition “Why would the complainant lie?” should not be presented in a way which would deflect or distract the jury from the central issue, whether the Crown had proved the charge and each element of the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus on the accused to advance a credible answer. Generally, the trial Judge would be required to intervene firmly if these principles were infringed. ... in any case where the prosecution had sought to bolster the complainant’s credibility by reference to the absence of a motive to lie, the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout.

...

The question: “Why should she lie?” must be interpreted as and confined to the eliciting of facts known to the accused, not speculation as to possible motives. Likewise, any submissions by the prosecutor have to be couched in a way that observes the distinction. ... Common sense will lead the jury to ask whether there is some apparent motive to lie. If so, that is a factor to be taken into account against acceptance of the complainant’s account. Where none has emerged, the jury will assuredly regard that as a factor to be taken into account in assessing credibility.

[28] In such cases, the temptation can be great for prosecuting counsel to suggest to the jury that, in deciding issues of credibility, they should take account of the accused’s motive to lie being greater than other witnesses simply because he or she has most to lose from the trial process.

[29] It is, however, one thing, and a perfectly proper approach, for prosecuting counsel to suggest an accused has a motive to lie and has lied because of previous convictions, the improbability of his evidence, its conflict with proved facts or other circumstances of the case. If that approach is taken, the Judge may choose to reflect those submissions in summarising the prosecution case. But it is quite another matter, and an incorrect approach, for prosecuting counsel or the Judge to suggest in submissions or in summing-up that an accused’s motive to lie results from no more than the fact that he or she is the accused.

[30] If it is suggested that the accused’s status as such is his or her sole motive to lie, such a direction invites more searching scrutiny of an accused’s evidence than that of the complainant or other Crown witnesses. It almost inevitably risks skewing the burden and standard of proof against an accused. Further, as the High Court said in Robinson, remarks such as the italicised sentence jar when measured against the presumption of innocence and, in this country, do not sit easily with the New Zealand Bill of Rights Act 1990, s 25(c).

[31] As said in T, it is greatly to be preferred that, if a Judge feels it necessary in summing-up to deal with motive at all as an issue bearing on credibility, suggestions that such motive arises solely because he or she is the accused must be avoided. Directions on motive must be unmistakably linked to a firm direction or further direction on the burden and standard of proof and it must be made clear that the jury’s primary concern is to focus on that crucial issue, not to speculate on possible

motives of the principal parties to lie. That is additionally the case if it is the accused’s supposed motive which is to be the subject of adverse comment or direction.

[32] Here, even though the Judge again mentioned the burden and standard of proof after commenting on the appellant’s motive, our view is that the bluntness of the comment about Mr Leef’s motive to lie greatly outweighed that passage. Read as a whole, the effect of [77] of the summing-up was to leave the jury with the clear impression that the accused had a strong motive to lie simply because he was the accused. That impression, taken with the Judge’s direction two paragraphs later to apply “robust common sense” to the resolution of the facts, leads to the conclusion the summing-up was unfair to the accused. For the reasons discussed above and in Robinson the appropriate course is to allow the appeal against conviction and order retrial.

[33] The appellant’s convictions are accordingly quashed and he is remanded in custody to a callover date in the Tauranga District Court to be set by the Registrar of that Court. Any bail issues are to be dealt with in that Court.

[34] In the light of that finding, other issues raised on appeal warrant only brief discussion.

Burden and standard of proof

[35] When initially directing the jury on the burden and standard of proof, the Judge, after a conventional direction, added reference to an American direction on standard of proof which said the jury had to be “firmly convinced” of guilt before conviction.

[36] Since the permanent Court is currently considering a case on the direction on reasonable doubt and whether the traditional formulae should be elaborated upon, we consider it inappropriate to do more than note the ground of appeal.

[37] As mentioned, the appellant’s defence involved searching cross-examination of the complainant regardless of the consequences for him. Topics put in cross- examination to discredit her credibility included her previous convictions, history of illicit drug use and aspects of her medical background, including self-mutilation.

[38] However, trial counsel did not put to the complainant that her initial statements to Police did not assert penetration in either of the ways she mentioned in evidence.

[39] Privilege was waived. An affidavit from trial counsel said this was a strategic decision made by him on the basis he thought enough had been done to damage the complainant’s credibility and that, to attack her further, risked repetition of her evidence that both forms of penetration occurred and the jury forming a sympathetic view of her.

[40] In our view, whilst, given the appellant’s instructions, it may have been preferable for trial counsel to have to put to the complainant the omission of any reference to penetration in her earlier statements, it is certainly not an omission or error by counsel which gave rise in this case to a miscarriage of justice: R v Sungsuwan [2006] 1 NZLR 730.

[41] In any event, in an affidavit from the officer-in-charge of the case received, over Mr Pyke’s objection, at the hearing before us it became clear that, when re- interviewed the day after the incident giving rise to the charges, the complainant did tell Police she had been penetrated. In those circumstances, even had the question been put to the complainant, the Judge may well have seen it as an allegation of recent fabrication and allowed evidence of the next day’s statement to be called from the interviewing officer.

[42] Mr Leef was also vigorously cross-examined. In relation to his evidence that the complainant was prepared to have sex with him for methadone, he acknowledged his lawyer not putting anything like that to the complainant. He was then asked, on several occasions, without initial objection from trial counsel, whether he had given instructions to trial counsel about that aspect. He acknowledged not telling trial counsel about the particular focus of the questions.

[43] Objection was taken after a number of questions in this vein. The prosecutor was initially allowed to continue but was then stopped by the Judge.

[44] It was submitted that cross-examination in that fashion infringed legal professional privilege, though counsel were unable to cite authority for the proposition.

[45] The obligation on cross-examining counsel to invite comments from opposing witnesses on a contrary version of the facts which counsel’s witnesses intend to give in evidence is generally called the rule in Browne v Dunn (1893) 6

R 67 (the case is only reported in that obscure set of reports but extensive citations appear in the authorities later discussed). Not all the ramifications of the so-called rule have been worked through in this country, though it now appears accepted that the rule applies, at least to some extent, in criminal matters, whether summary trial by Judge alone or jury trial, and particularly in cases where credibility is the watershed issue.

[46] But amongst the aspects of the rule not yet fully defined in this country is the extent to which the rule applies where evidence by or on behalf of an accused gives a version of the facts different from, and not put in detail to, prosecution witnesses. Some of the cases later discussed deal with the applicability of the rule in the contrary situation, namely whether it applies in a case where a prosecutor has deliberately refrained from cross-examining an accused and his or her witnesses. Both those propositions can also raise consequential questions as to the extent to which the absence of putting or challenging the contradictory evidence can properly

be the subject of comment by counsel or the Judge. And a sidelight on those difficulties, albeit an important one, is whether it is proper, because of the obvious possible impact on legal professional privilege, for prosecutors to cross-examine accused persons as to the instructions they may or may not have given counsel.

[47] In Gutierrez v R [1997] 1 NZLR 192, 199, the rule in Browne v Dunn was discussed by this Court in the context of a Judge alone trial decided on credibility. The case is accordingly not directly in point on the issue now under consideration but the guiding principle was said to be that of fairness in all the circumstances of the case.

[48] More aptly, in Transport Ministry v Garry [1973] 1 NZLR 120 at 122

Haslam J adopted the view of the English Court of Criminal Appeal in R v Hart (1932) 23 Cr App R 202 at 207 that it should be made plain while a witness is in the box that his or her evidence is not accepted if the prosecution intends to ask the tribunal of fact to disbelieve him or her. The appeal from a District Court Judge alone finding was allowed, partly on the basis that such had not been done.

[49] In Hewinson v Police [1987] NZHC 64; (1987) 3 CRNZ 27, the same rule was followed, though Tipping J described a prosecutor’s decision not to cross-examine a witness on the contradictory evidence as taking a risk that the Judge might decline to accept any criticism of the accused’s evidence or credibility. The report contains a number of helpful citations from Police v Main (HC WN M208/86 28 August 1986) which deals with the topic in greater detail.

[50] Without greatly distinguishing between civil and criminal trials the commentators appear to accept that such is the rule in New Zealand: Sir Maurice Casey Laws of New Zealand, Evidence at [152]; Mathieson (ed) Cross on Evidence (loose-leaf) LexisNexis at [9.58]. It may be of assistance to reproduce the commentary from Cross:

Whenever it is proposed to ask the tribunal of fact to disbelieve the evidence-in-chief of the witness presently in the box, that contradictory material, or at least the essence of it, must normally be put to the witness so that he or she may have an opportunity of explaining the contradiction. Failure to do so may be held to imply acceptance of the evidence-in-chief.

To comply with the rule counsel must put to each of the opponent’s witnesses, in turn, so much of counsel’s own case as concerns that particular witness, or in which that witness has had any share. But the particular circumstances of a trial sometimes justify a relaxation of the rule. The respects in which his or her evidence will not be accepted must be indicated to the witness. The rule is inapplicable where “evidence is given which differs only to extent and degree and does not amount to a head-on conflict.” [R v Collier CA81/96 13 August 1996].

...

The rule is designed to ensure fairness. A prosecuting counsel who proposes to attack the credibility of defence witnesses including the defendant, must cross-examine in a way that makes it plain that the relevant evidence is being challenged. Also, the witness must be given a fair opportunity to answer the challenge. [Footnotes omitted]

[51] Turning to Australia, the facts in R v Birks (1990) 19 NSWLR 677 were somewhat similar to the present. The appellant faced a number of sex and violence charges. The defences were that the sexual acts never occurred and the violence occurred in self-defence. Counsel for the accused omitted to cross-examine on either. The prosecution cross-examined the accused on his instructions to his legal advisers on those matters and the failure to cross-examine the complainant. The appellant said he instructed counsel to put both matters to the complainant. The majority of the New South Wales Court of Criminal Appeal (Gleeson CJ and McInerney J) reviewed the applicability of the rule to criminal jury trials and took the view it applied in New South Wales in criminal as well as civil proceedings: at

689. However, dealing with practical aspects of the rule, the majority observed: at

690 :

It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, and that some interests of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a “comment” following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel.

[52] Some of those practical aspects were mentioned in a judgment of the Court of

Criminal Appeal of South Australia which the majority in Birks adopted: at 691.

That was R v Manunta (CCASA 28 July 1989) where King CJ is recorded as saying of the rule in Browne v Dunn :

It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co- operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds.”

[53] In light of those authorities, we record our tentative view that, in any criminal case, as a matter of fairness, if a version of the facts contrary in significant detail to that put forward by a witness is to be adduced from opposing witnesses, it will as a matter of course be prudent for counsel to put that contrary view to the witness for comment. Failure so to do risks critical comment from counsel and the Judge and the possibility of adverse inferences as to the truth of the contrary version being drawn by the tribunal of fact. However, because of the importance of legal professional privilege, while it may be proper to put to an accused that he or she has never told anyone before of the version they are now propounding in evidence, questions expressly probing their instructions to counsel on the contrary version risk infringing legal professional privilege and should not be put.

[54] We stress we have set out those observations as being of possible assistance to counsel and trial Judges but, since the topic was not fully argued before us and we have allowed the appeal against conviction on the motive ground, our views should not be regarded as definitive.

Result

[55] The appeal against conviction is accordingly allowed in terms of [33].

WILLIAM YOUNG P

[56] I agree with Williams J that the appeal should be allowed and that there should be a new trial and I agree generally with the reasons which he has given. I wish, however, to add a few words of my own on the comment made by the Judge to the effect that the accused had a motive to lie.

[57] It is relevant for a jury to assess the motivations of other witnesses and juries are often invited to do so by defence counsel and sometimes Judges (for instance under s 12C of the Evidence Act 1908). So why should the jury not be told that the understandable desire of the accused to avoid the consequences of a guilty verdict is, or may be, relevant to the credibility of his or her evidence? It is, I think, worth exploring this issue in a little detail.

[58] The reasons why such comments should not be made lie in the concepts of fairness and caution which underpin our criminal law. There are a number of rules of evidence which declare off limits certain lines of logically probative reasoning (eg propensity reasoning). This is because of the fear that such reasoning may lead jurors astray. It seems to me that there is such a risk where the Judge invites a jury to focus on the accused’s motive to give exculpatory evidence.

[59] In the first place, if the Judge’s comment is to the effect that the accused has a motive to lie (which is pretty much what the Judge said here), the unarticulated but hardly concealed premise is that the accused is guilty; this because if he or she were innocent, the exculpatory evidence would be true and not a lie. Such a comment is inconsistent with the presumption of innocence.

[60] Even if the comment is made in terms that do not necessarily proceed on the basis that the accused is guilty (perhaps along the lines that an accused, innocent or guilty, has a motive to give exculpatory evidence) there remains a risk that it will encourage unfair reasoning.

[61] In Bentley, the trial Judge in effect, if not expressly, compared the improbability that the three police officers (whose conspicuous courage he had

praised) would have combined to give false evidence with the very obvious reason which Bentley had to deny his guilt. At a very broad level, Bentley involved issues similar to those commonly encountered in New Zealand where prosecutors run the “why would she lie” line of argument. Where the defence has not been able to come up with a plausible motive, a reference to the accused’s motive to lie carries the risk of encouraging reasoning by stereotype, that police officers or complainants (or whatever other type of prosecution witness is involved) are likely to be reliable whereas defendants are likely to be unreliable. This is essentially the point made by the Court of Appeal in Bentley at 327.

[62] The temptation (for both Judges and prosecutors) to draw attention to an accused’s motive to lie will be more acute where defence counsel has been able to assert motives to lie on the part of prosecution witnesses. In such a case a comment on the accused’s motive may invite reasoning by stereotype (for reasons already given) but it may also give rise to a slightly different problem. In this sort of case, the focus of the defence argument is usually on the reason why the prosecution witness (or witnesses) initially complained to the police or otherwise became involved in the case. The premise underlying the defence argument is usually that once a witness has given a false story to the police, the dynamics of the situation require that witness to stick to that story in evidence. Such a defence warrants careful consideration by a jury (because this is just the sort of situation where miscarriages of justice can occur). A comment by the Judge that the accused had a motive to lie is likely to be by way of “balance” to the defence argument or to be taken by the jury in that way. Yet if the relevant prosecution witness had a motive to make a false complaint, the significance of that is not negated by the accused’s motive to give exculpatory evidence. So such a comment is therefore likely to divert inappropriately the attention of the jury away from the defence’s primary challenge to the Crown case.

[63] For these reasons, I am of the view that Judges should not comment on the motive of an accused to give exculpatory evidence.

Solicitors:

Crown Law Office, Wellington.