SUPREME COURT OF QUEENSLAND CITATION: R v Coss [2016] QCA 44 PARTIES: R v COSS, Michael Joseph (appellant/applicant) FILE NO/S: CA No 111 of 2015 DC No 113 of 2012 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal DELIVERED ON: 1 March 2016 DELIVERED AT: Appeal against Conviction & Sentence District Court at Cairns Date of Conviction: 19 May 2015; Date of Sentence: 19 May 2015 Brisbane HEARING DATE: 19 February 2016 JUDGES: ORDERS: Margaret McMurdo P and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. The appeal against conviction is allowed. 2. The convictions are quashed. 3. A retrial is ordered. CATCHWORDS: CRIMINAL LAW APPEAL AND NEW TRIAL MISCARRIAGE OF JUSTICE MISDIRECTION OR NON- DIRECTION NON-DIRECTION where the appellant was convicted of two counts of rape where, at trial, the appellant s counsel suggested the complainant had invented the allegations against the appellant because she did not like the appellant being her father s drinking mate and because she did not like her father s partner at the time where, in the closing address, the prosecutor asked the jury a rhetorical question as to why the complainant would make a false allegation against the appellant where the prosecution encouraged the jury to place the complainant in a class of people unlikely to give false evidence where the primary judge directed the jury that it was for the prosecution to prove that the complainant was accurate and truthful and not motivated by malice or any other reason and that it was not for the defence to identify any motive for making a false allegation where the primary judge did not direct the jury that any failure or inability on the part of the accused to prove a motive to lie did not establish that such motive did not exist; if such a motive existed, the accused may
COUNSEL: SOLICITORS: 2 not know of it; there could be many reasons why a person may make, or join in the making of, false complaints; and if the jury was not persuaded that any motive to lie on the part of a complainant had been established, it would not necessarily mean that the complainant was truthful and it remained necessary for the jury to satisfy themselves of the complainant s truthfulness where defence counsel, at the conclusion of the judge s directions to the jury, asked for time to formulate a request for re-direction concerning the prosecutor s statements about motive where the primary judge stated that he did not intend to give further directions whether there was a substantial miscarriage of justice Criminal Code (Qld), s 668E(1), s 668E(1A) Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, followed R v Cupid [2004] VSCA 183, cited R v Geary [2003] 1 Qd R 64, [2002] QCA 33, cited R v Kostaras (2002) 133 A Crim R 399; [2002] SASC 326, cited R v Van Der Zyden [2012] 2 Qd R 568; [2012] QCA 89, followed Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38, cited T A Ryan for the appellant/applicant S J Farnden for the respondent Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent [1] MARGARET McMURDO P: The appellant was convicted after a trial on 19 May 2015 of two counts of rape. He has appealed against these convictions contending that the trial judge erred in not adequately directing the jury in relation to comments made by the crown prosecutor in his closing address, thereby occasioning a miscarriage of justice. [2] Both offences were alleged to have occurred in the complainant s bedroom on a date unknown between 1 June 2009 and 2 February 2010 when the complainant was 10 or 11 years old. The appellant was a friend of her father and a guest in their home. The complainant gave evidence that the appellant forced his penis into her mouth (count 1) and then inserted his penis into her vagina without her consent (count 2). Her evidence consisted of her statements to police which were admitted under s 93A Evidence Act 1977 (Qld) and her cross-examination which was taken and admitted under s 21AK Evidence Act. The appellant s counsel at trial cross-examined the complainant, suggesting that she had invented the allegations because she did not like the appellant (her father s drinking mate) and because she did not like C (her father s then partner) and wanted to leave home. She denied those allegations and maintained that the appellant committed the offences. The prosecution also called complaint evidence from the complainant s mother, school friends and C. [3] The appellant gave evidence that he did not commit the offences. Defence counsel in his closing address to the jury attacked the reliability of the complainant s evidence. He emphasised that it was in conflict with that of her mother and her father s former partner but did not suggest the complainant had a motive to give false evidence.
The prosecutor s closing address 3 [4] The prosecutor s closing address relevantly included the following: During his cross-examination of [the complainant], [defence counsel] put it to the complainant that these offences never occurred. That nothing of a sexual nature ever happened between her and the defendant...it was repeatedly put to [the complainant] during cross-examination that she was making up her evidence. So the million-dollar question, ladies and gentlemen is why? What possible motive could [the complainant] have for making up these allegations? [Defence counsel] suggested a number of reasons to [the complainant], none of which, you may think, seem to make any particular sense. Firstly, it was suggested that [the complainant] was lying because she didn t like the relationship between [the partner of the complainant s father] and her father. Secondly, it was suggested that she was lying because she didn t like washing up and cleaning the house for her father. And thirdly, it was suggested that she was lying because she didn t like the [appellant] drinking with her father. But the problem with those theories, ladies and gentlemen, is that, individually or collectively, they have absolutely no relevance to [the complainant s] life at the time that she told [a witness] and her mother what the [appellant] did to her. Her father was no longer with [C]. She no longer lived with her father. So she had and she had nothing to do with either [C] or [the appellant] at that stage. Which brings us back to the question of why? Why would [the complainant] make up a false complaint against the [appellant], who was long gone from her life, at the time she told her mother what happened? You saw the way [the complainant] gave her evidence, ladies and gentlemen. Did she appear to be the kind of girl who would be able to plan and pursue a vendetta against the [appellant] for no reason at all? If [the complainant] is lying, how is she benefited by making a false complaint against the [appellant]? She didn t seem to be enjoying herself too much when she was talking to the police or during cross-examination. You may think that she was clearly embarrassed talking about the offences, despite her generally positive demeanour. So why would [the complainant] choose to subject herself to police interviews, court proceedings, cross-examination, over a period of two years, if there was no substance to what she was saying? Why would she do that, ladies and gentlemen, if her evidence wasn t true? I repeat, ladies and gentlemen, you saw the way [the complainant] gave her evidence. How likely do you think it is that she would have the motivation and mental stamina to maintain a lie like that over a two year period? The bottom line is this, ladies and gentlemen, either the [appellant] inserted his penis in [the complainant s] mouth or he didn t. And he either inserted his penis into her vagina or he didn t. Either you accept that [the complainant] is a truthful and a reliable witness or you don t. Either [the complainant] is telling you the truth as best that she can recall or she has deliberately concocted two
4 separate, specific, unique allegations against an entirely innocent man, out of the blue, for no good reason at all. And there really is no middle ground in this case, ladies and gentlemen. But you may think that it is extremely doubtful whether the [complainant] would have the motivation or the capacity to construct a lie like that in the first place or the stamina to maintain it over a number of years. All that planning, determination and effort on the part of a young girl to tell you about something that never happened for no good reason at all. The judge s directions to the jury [5] The judge s directions to the jury relevantly included the usual reminder that submissions from counsel were not evidence but arguments. His Honour stated that it was for the jury to decide whether they accepted the evidence of a witness completely; rejected the evidence of a witness completely; or accepted only part of the evidence of a witness. In drawing inferences they must never speculate or guess; there must be a logical and rational connection between the facts found and any deductions or conclusions made; there was no room for intuition or guesswork. The standard of proof was proof beyond a reasonable doubt in order to return a verdict of guilty in respect of any charge. The jury must be satisfied that the prosecution has proved every element of that charge beyond reasonable doubt. While the appellant had given evidence, the responsibility for proof remained on the prosecution. At no stage did it shift to the appellant. By giving evidence he had not assumed any responsibility for proving his innocence. His evidence was simply added to the evidence already before the court in the prosecution case. [6] His Honour continued: Sometimes you hear these cases described as word against word. But you must understand that in a criminal trial, it is not a question of your making a choice between the evidence of the prosecution s principal witness or witnesses and the evidence of the [appellant]. The proper approach is to understand that the prosecution case depends upon you the jury accepting that the evidence of the prosecution s principal witness was true and accurate beyond reasonable doubt, despite sworn evidence of the [appellant]. You do not have to believe that the [appellant] is telling the truth before he is entitled to be found not guilty. 1 [7] The judge explained that if they thought the appellant s evidence was credible and reliable their verdict would be not guilty. If they found the appellant s evidence unconvincing but they were left in a state of reasonable doubt as to what the true position was, their verdict would be not guilty. If they found the appellant s evidence should not be accepted they must not jump to an automatic conclusion of guilt. He was not charged with telling lies. They should then put his evidence to one side and look at the rest of the evidence and ask whether, on a consideration of that evidence, they were satisfied beyond reasonable doubt that the prosecution had proved every element of the offence. [8] The judge warned the jury of the difficulty for the appellant arising from the complainant s delay in making the complaint, consistent with Longman v The Queen: 2 it 1 Summing-up 7, 20-27. 2 (1989) 168 CLR 79.
5 would be dangerous to convict upon the complainant s testimony alone, unless, having scrutinised it with great care, considering the relevant circumstances and paying heed to this warning, they were satisfied beyond reasonable doubt of its truth and accuracy in relation to each charge. [9] His Honour then dealt with the competing contentions of counsel. In summarising the prosecution contentions his Honour dealt with the prosecutor s comments on motive: He did say to you at one stage, members of the jury he did ask you the rhetorical question, What motive would she have had to make a false allegation? Well, you need to be careful about that, because you remember, I said to you, it is not for the defence to prove anything. It s not for the defence to identify any motive or reason for the making of a false allegation. It is for the Crown to prove that the allegation was accurate and truthful and not in any way motivated by malice or any other reason, but having correct[ed] [the prosecutor] to that extent, the essence of his submission to you, in relation to that, I think, remains unaffected. He said to you that you would see her as someone who has been consistent and you would find no reason to doubt the truthfulness and accuracy of her account. 3 [10] Later his Honour stated: It would be apparent to you, I think, that both [the prosecutor and defence counsel] are experienced criminal counsel and you may have thought, as I thought, they each presented their cases in a careful and detailed manner, without any undue resort to rhetoric or emotion, for example, and I do ask you to keep in mind all of the arguments that were made to you by counsel. 4 The application for redirection [11] At the conclusion of the judge s directions to the jury, the defence counsel asked for a few minutes to formulate a request for a re-direction concerning the prosecutor s statements about motive, in line with Robinson v The Queen. 5 The judge considered that, in the circumstances, his jury directions were sufficient. The prosecutor added that he made his submissions on motive in a way which was consistent with R v Geary. 6 The judge repeated that he did not intend to give any further directions. 7 The competing contentions in this appeal [12] The appellant s counsel conceded that, consistent with Geary, it was legitimate for the prosecutor at trial to address the jury on why the alleged motives raised with the complainant in cross-examination were unmeritorious. It was, however, improper for the prosecutor to pose the rhetorical question, why would the complainant make a false allegation against the appellant? This was objectionable for the reasons identified in Palmer v The Queen. 8 The observations in Palmer apply with equal force to a prosecutor s address: R v Kostaras. 9 The prosecutor s submissions to the jury amounted 3 Summing-up 12, 1-10. 4 Summing-up 12, 43-47. 5 (1991) 180 CLR 531. 6 [2003] 1 Qd R 64, [26]. 7 Summing-up 13-15. 8 (1998) 193 CLR 1. 9 (2002) 133 A Crim R 399, 411 [87].
6 to an exhortation to reverse the onus of proof. He presented the jury with the choice of finding the complainant was either lying or that she was telling the truth, and then reasoning that, if she was not lying, she must be telling the truth. The primary judge should have directed the jury that such reasoning overlooked the possibility that the jury might simply not be satisfied beyond reasonable doubt on the whole of the evidence of the appellant s guilt. The prosecutor s address encouraged the jury to conclude that the complainant belonged to a class of people unlikely to give false evidence so that her evidence was more likely to be truthful. The submissions made went well beyond those set out as acceptable in Geary. [13] The appellant s counsel contended that the trial judge should have addressed the jury in accordance with the suggested directions in R v Van Der Zyden 10 which have been adopted as the model direction in the Queensland Supreme and District Courts Benchbook. 11 The directions given to the jury were not sufficient to neutralise the prejudice that arose from the prosecutor s address about the absence of rational motive for the complainant to lie. Indeed, in otherwise affirming the prosecutor s submissions, the judge reinforced this impermissible reasoning. In the absence of directions in accordance with Van der Zyden, it could not be concluded that the jury would have inevitably convicted the appellant. It cannot be said that no substantial miscarriage of justice has occurred as a result of the error. The appeal must be allowed, the guilty verdicts set aside and a retrial ordered. [14] The respondent contended that when the judge s full directions to the jury are considered together with the impugned aspects of the prosecutor s address in context, there could be no doubt that the jury understood that it was not for the appellant to demonstrate why the complainant might lie. The prosecutor in his address always took the jury back to the complainant s evidence and whether they were satisfied of its truthfulness beyond reasonable doubt. The prosecutor s address was consistent with the approach taken in Geary. 12 The judge s directions to the jury adequately dealt with the issue of the complainant s motive to lie and met the requirements of Van der Zyden. There has been no miscarriage of justice and the appeal should be dismissed. Conclusion [15] The appellant placed emphasis on Palmer where the accused was charged with sexual offences against a 14 year old girl. Palmer gave evidence at his trial. In cross-examination, when asked whether there was any reason why the complainant would invent the allegations against him, he was unable to suggest any reason. Brennan CJ, Gaudron and Gummow JJ stated: a complainant s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant s account is strengthened by an accused s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. The correct view is the absence of proof of motive is entirely neutral. 13 Their Honours determined that, despite the clear directions of the primary judge to scrutinise the complainant s evidence with the utmost care and to be satisfied beyond 10 [2012] 2 Qd R 568. 11 At No. 43B. 12 Above, [23], [24] and [29]. 13 (1998) 193 CLR 1, 9.
7 reasonable doubt that her evidence was reliable before convicting, the questioning of the appellant about the complainant s motive may have occasioned a miscarriage of justice. [16] Kirby J noted it was common ground that the issue of a complainant s motivation ought never to be injected gratuitously into a trial nor made the central point of argument, whether by the prosecutor or by the judge, and that where an accused puts forward, by evidence or submission, a proposition that a crucial prosecution witness has a particular motive to lie, the judge should direct the jury that, even if they were to reject such motive, that would not mean that the witness was necessarily truthful. It was for the prosecution to prove that the witness was truthful. 14 [17] The respondent contended that the prosecutor s address conformed with this Court s decision in Geary. In that case the accused was convicted by a jury of four drug offences and appealed on a number of grounds, including that the prosecutor erred in inviting the jury to ask why witnesses would falsely implicate the accused, and that the trial judge failed to correct the submission. Defence counsel addressed the jury by inviting them to reject the evidence of the six indemnified witnesses; as indemnified accomplices they had powerful reasons to make up allegations against the accused; their evidence could not be accepted as reliable beyond reasonable doubt; the evidence of accomplices was frequently unreliable. The prosecutor responded in his address by asking the jury why any of those witnesses would falsely implicate the accused. As they had implicated others, they did not need to falsely implicate him. This Court distinguished Palmer which concerned sexual offences against a child. Williams JA, with whom de Jersey CJ and McPherson JA agreed, stated that an accused person s belief as to what may be motivating the complainant would hardly be relevant to any issue at the trial. But nothing in Palmer suggested that a prosecutor could not deal with issues of credit in the closing address to the jury, including making submissions as to whether a witness had a possible motive to lie. 15 It would be absurd if defence counsel could brand prosecution witnesses as liars with the prosecutor unable to explore the issue as to what motivation those witnesses might have to lie. In rejecting those grounds of appeal, the Court stated that the prosecutor acted perfectly properly in addressing the jury as he did and there was nothing for the primary judge to correct. 16 [18] Kirby J s statement that a prosecutor should not gratuitously raise the issue of the complainant s motive is supported by similar observations in the Victorian case of R v Cupid 17 and in the South Australian case of R v Kostaras. 18 In the later case, the accused, a school teacher, appealed against his conviction on four counts of unlawful sexual intercourse with a 15 year old boy. One ground of appeal concerned the prosecutor s submissions in the closing address asking the jury why the complainant or other prosecution witnesses would lie. Although the appeal was allowed and a retrial ordered on another ground, Doyle CJ, with whom Wicks and Besanko JJ agreed, noted that the observations in Palmer as to the cross-examination of the accused as to motive applied with equal force to the prosecutor s address to the jury: It is impermissible for prosecuting counsel to address the jury on a basis that implies that a failure by the accused, or an inability of the accused, to identify a motive for the complainant or a supporting 14 (1998) 193 CLR 1, 38-39. 15 [2003] 1 Qd R 64, 70, [25]. 16 Above, [26]-[29]. 17 [2004] VSCA 183, [30]. 18 (2002) 133 A Crim R 399.
8 witness to lie, in some way buttresses the credit of the complainant or of the witness or strengthens the prosecution case. Any such suggestion in the address has the same unjust and unsound tendencies as does cross-examination to that effect. 19 The court noted, however, that the complainant and other witnesses were crossexamined in a way that suggested that the complainant had fabricated his evidence and that the witnesses had collaborated to support him and that another witness had reasons linked to a failed business venture to give evidence adverse to the accused. It followed that the prosecutor was entitled to challenge the suggested motive for these witnesses to lie and to invite the jury to consider the likelihood that they would lie for the reasons suggested or implied. But a prosecutor was not entitled to take the further step and suggest that the absence of a persuasive motive to lie in fact enhanced the credibility of prosecution witnesses or strengthened the prosecution case. 20 As the prosecutor did no more than argue that the suggested motives to lie were not sustainable, her address was proper. [19] The topic was most recently considered by this Court in Van Der Zyden where the accused was convicted of several counts of sexual offences against children under 16. In his closing address to the jury the prosecutor commented that the complainants had no motive to lie. Defence counsel applied for and obtained a jury re-direction to the effect that it was not for the accused to show any motive as often such motives are unknown; the onus remained on the prosecution to prove guilt and there was no onus on the accused. Muir JA, with whom de Jersey CJ and Margaret Wilson AJA agreed, noted that the complainants were cross-examined to the effect that they had falsely accused the appellant because of police pressure. The prosecutor, although entitled to meet that contention in his closing jury address, should not have emphatically asserted that the complainants had no motive to lie and were motivated to give honest accounts. Those submissions implicitly invited the jury to accept the complainants evidence unless there was some demonstrated motive to lie. 21 The Court discussed Palmer, Hargraves v The Queen 22 and R v T, 23 recognising that a prosecutor was not prohibited from raising the absence of evidence of a complainant s motive to lie in a jury address where the defence had alleged a complainant was lying. 24 But as the prosecutor elevated the absence of motive to lie on the part of the complainants to a central matter in the jury s assessment of the case and positively asserted the absence of such a motive, the trial judge should have directed the jury along the lines that: any failure or inability on the part of the accused to prove a motive to lie did not establish that such motive did not exist; if such a motive existed, the accused may not know of it; there could be many reasons why a person may make, or join in the making of, false complaints; and 19 Above, 411 [87]. 20 Above, 411 [90]. 21 Above, [22]. 22 (2011) 245 CLR 257. 23 [1999] QCA 376. 24 Above, [28].
9 if the jury was not persuaded that any motive to lie on the part of a complainant had been established, it would not necessarily mean that the complainant was truthful and it remained necessary for the jury to satisfy themselves of the complainant s truthfulness. 25 [20] The Court held that the trial judge s directions were insufficient to address the risk arising from the prosecutor s address. The jury might conclude that the absence of any proven reason for a false complaint strengthened the suggestion that the complainants must be telling the truth. The jury might reason that unless each complainant was shown to have a motive to lie his evidence should be accepted. 26 But no such re-direction was sought. This meant that the appeal could succeed only if the failure to give those directions constituted a miscarriage of justice. Defence counsel at trial was given an opportunity to consider Palmer and the judge gave the direction defence counsel considered appropriate, omitting the words often such motives are never known. This was a rational forensic decision on the part of defence counsel not to have this additional direction. It followed that no miscarriage of justice had been shown and the appeal was dismissed. 27 [21] Since May 2013, the Supreme and District Courts Benchbook has cited Van Der Zyden and the model direction it contains set out in [19] above, under the heading Absence of Complainant s Motive to Lie. 28 [22] It is accepted that the prosecutor in the present case was entitled to address the jury as to why they should not accept the motives for giving false evidence put to, but rejected by the complainant in cross-examination. There is no doubt that the otherwise fair, balanced and comprehensive primary judge s directions to the jury 29 made clear that before convicting the appellant on either charge they must be satisfied of his guilt beyond reasonable doubt and that they could not act on the complainant s evidence without scrutinising it with great care and being satisfied of its truth and accuracy. The jury also must have appreciated from his Honour s directions that it was not for the defence to identify any motive or reason for the making of a false allegation and it was for the prosecution to establish that the complainant s evidence was accurate and truthful and not motivated by malice or any other reason. But the judge s directions failed to instruct the jury that, even if they found no evidence of any motive to lie, this did not establish that such a motive did not exist; if there was a motive the appellant may not know of it; there may be many reasons why a person may make a false complaint; if they found no evidence of a motive to lie, this did not necessarily mean the complainant was truthful; it remained necessary to satisfy themselves that she was truthful. In the absence of such a direction, there was a real possibility that the jury may have impermissibly reasoned that they could be more easily satisfied beyond reasonable doubt that the complainant s evidence was reliable as there was no evidence of any motive for her to make up these allegations. [23] This risk was not diminished by the prosecutor reminding the jury that the ultimate question was whether they believed the complainant s evidence beyond reasonable doubt. Indeed, the judge s directions that, apart from the correction set out at [9] of 25 Above, [32]. 26 Above, [33]. 27 Above, [35]-[42]. 28 No. 43B. 29 Set out at [5] [10] of these reasons.
10 these reasons, the essence of the prosecutor s submissions to the jury remains unaffected and the jury should keep in mind all of the arguments that were made to [them] by counsel, reinforced the prosecutor s impermissible suggestion that the absence of accepted evidence of motive to lie strengthened the prosecution case. [24] Defence counsel in this case noted his concern about the judge s directions as to motive and sought time to research the question but the judge determined that his directions were adequate. This may be contrasted with Van Der Zyden, where no redirection was sought so that there was no error of law with the result that the appeal in that case could succeed only if a miscarriage of justice was established. In the present case the judge s omission to give a comprehensive direction of the kind set out in Van Der Zyden was an error of law under s 668E(1) Criminal Code. The complainant and the appellant in this case gave contradictory sworn evidence. The appellant has been deprived of the chance of a properly instructed jury considering the case. I am not persuaded there has been no substantial miscarriage of justice under s 668E(1A) Criminal Code: see Weiss v The Queen. 30 It follows that the appeal against conviction must be allowed, the convictions set aside and a re-trial ordered. Order 1. The appeal against conviction is allowed. 2. The convictions are quashed. 3. A retrial is ordered. [25] GOTTERSON JA: I agree with the orders proposed by McMurdo P and with the reasons given by her Honour. [26] MORRISON JA: I have read the reasons of Margaret McMurdo P and agree with those reasons and the orders her Honour proposes. 30 (2005) 224 CLR 300, [41]-[45].