Gans, Jeremy --- "'Why Would I be Lying?': The High Court in Palmer v R Confronts an Argument that may Benefit Sexual Assault Complaints" [1997] SydLawRw 29; (1997) 19(4) Sydney Law Review 568

Why Would I be Lying?: The High Court in Palmer v R Confronts an Argument that may Benefit Sexual Assault Complainants

JEREMY GANS[*]

1. The Question Raised in Palmer v R

In Palmer v R, the High Court of Australia will be the first top national court to address the questions legal status.3 In Palmer, the question was raised by the complainant herself. She was confronted with the assertion that what she had been describing (that a family friend had propositioned her) was untrue:[4]

[Defence barrister:] Didnt enter your mind because it hadnt happened?

[Complainant:] Yes, it had. Why would I be lying anyway?

The complainants gambit was taken up by the defence later in the crossexamination, on the subject of her complaint that the accused had sexually assaulted her:[5]

[Defence barrister:] This is some pay back on him for some indiscretion he doesnt even know about, isnt that right? [Complainant:] No, I am not lying.

The defence barristers line of questioning emboldened the Crown prosecutor, who asked the following of the defendant at the start of the cross-examination of the accused:[6]

[Crown barrister:] Mr Palmer, as I understand it, from the questions that were put to [the complainant] yesterday, you would really, it seems, be at an absolute loss to think as to why she should make up these allegations?

[Defendant:] I have no idea why she has said what she has.

This exchange was repeated at the conclusion of the questioning.

The issue before the High Court in Palmer is the legitimacy of the prosecutors cross-examination. Such questioning raises concerns about fairness to the accused, both personally, as the subject of such cross-examination, and because of the risk that jurors will reverse the onus of proof because of the questions rhetorical nature. However, the question and the subject of the apparent absence of the complainants motives have a legitimate role in the fact-finding process. This note will argue that the approach in New South Wales and Victoria, a prohibition of many cross-examinations on this topic, is unsatisfactory. The regulation of the form of such cross-examinations and the delivery of an appropriate judicial warning to the jury are the preferable way to meet the courts concerns.

2. The Topic of the Complainants Motive to Lie

A recent study by the New South Wales Department For Women, Heroines of Fortitude, suggests that, in half of the States sexual assault trials, the complainant is cross-examined about possible motives for making a false claim.[7] Historically, motives of jealousy, shame, spite or a complainants self-confessed unchaste ... mentality have been suspected of producing false allegations of sexual assault.[8] The New South Wales study indicates that the modern favourite of defence barristers is the complainants desire for financial gain through victims compensation.[9]

The topic of the complainants motive to lie will ordinarily arise in the defences cross-examination of the complainant. Such a cross-examination, for example the defence counsels allegation of a motive of revenge in Palmer, is permitted because it is relevant to the complainants credibility.[10] There can be little doubt that this issue satisfies the test of substantial probative value in section 103 of the Evidence Act 1995 (Cth). The defence is permitted to raise evidence from other witnesses rebutting a denial of such a motive, an opportunity apparently not taken by the defence in Palmer.[11] It would seem sensible that, if a motive is suggested, the prosecution can rebut the allegation. In H v R, the High Court affirmed the right of the trial judge to comment, even negatively, on the defences suggestion of a motive to lie.[12]

However, two additional methods of raising this issue complicate this simple picture.[13] First, in the early 1990s, a number of Australian cases endorsed the questioning of any witness about that witnesss knowledge of the relationship between the complainant and the accused as relevant to the topic of the complainants motives.[14] The relevance of questioning witnesses other than the complainant emerges from the fact that, while the complainants actual thoughts are hidden, the external conditions that might affect or reflect those thoughts are observable by others.[15] Those early cases contemplated questions to third parties to the relationship, for example, another family member in an incest case.

However, defendants themselves are especially well placed to comment on features of their relationship with the complainant that might suggest a motive to lie. Of course, no witness can fully determine the question of the complainants motives. The mere existence of a problem in the complainants and accuseds relationship does not mean that the complainant formed or acted upon a motive to frame the accused. Likewise, a witnesss denial of knowledge of any such problem does not remove the possibility that the complainant acted on a motive to lie that was hidden from the witness. However, these points only reduce an answers probativeness, they do not render it irrelevant. The relevance of a denial of knowledge of facts suggesting a motive for the complainant to lie is the reason why the prosecution may choose to address the topic of the complainants motives, even if the defence has not alleged that the complainant has a particular motive to lie. This occurred in Palmer, where the Crown asked the defendant about the complainants motives and was presumably pleased with the negative response.

Second, the question may also be put rhetorically in argument, inviting the jury to make its own assessment of the plausibility of the complainant having a motive to fabricate a sexual assault allegation against the accused. Thus, counsel and trial judge may, when commenting on the complainants credibility, pose the question why would the complainant lie?. Even lay persons will use the question in this manner, as the complainant did in Palmer. Anecdotal evidence from Heroines of Fortitude suggests that such a response by a complainant to a defence cross- examination is not uncommon in sexual assault trials.[16] It is also possible that the putting of this question to a witness in cross-examination may have a rhetorical function. Arguably, the prosecutors cross-examination of the defendant in Palmer had the purpose of both eliciting a relevant fact from the defendant and persuading the jury. In both cases, the prosecution would benefit from the possibility that the jury, after hearing this cross-examination, would regard it as more likely that the complainant was not acting out a motive to frame the accused for sexual assault.

A number of courts have acknowledged that the apparent absence of a motive for the complainant to lie is a fact that can be legitimately used by the fact-finder. The legitimate role of the apparent absence of evidence of motive to lie is to provide circumstantial support for determinations about the complainants credibility or, in fine cases, to alleviate doubts that might have been raised about the complainant. Various judgments, especially in Canada, have affirmed that the issue is of significance and can properly be a factor in the decision that the complainants testimony was true beyond reasonable doubt.[17] Australian courts have generally been less forthcoming on this point, with many judgments merely noting that the question inevitably is an issue in most sexual assault trials.[18] Nonetheless, the reasoning of many appeal judges, including McHugh J in the High Court, when determining whether a sexual assault conviction was unsafe and unsatisfactory has, on occasion, explicitly relied upon the apparent absence of a motive to lie as a reason for confidence in the complainants evidence.[19]

3. The Prohibition in New South Wales and Victoria

Recently, Australian courts have become extremely concerned about the fairness to the accused of the question why would the complainant lie?. The most important difficulty raised by the courts is the danger that the question, when asked rhetorically, will place a burden on the accused.[20] Asking the question suggests that there is no reason to lie. This in turn may be used to reach the conclusion that the complainant is not lying and therefore, that the complainants account is truthful. Thus, the question is the start of a chain of reasoning leading to the verdict that the accused is guilty. The concern of the courts is that putting the rhetorical question creates a need for the accused to suggest or produce evidence of a motive for the complainant to lie. The placing of a legal burden on the accused, whereby the defences failure will produce a guilty verdict, is contrary to the burden of proof beyond reasonable doubt, borne by the prosecution on all the elements of the charge of sexual assault.

The courts have also listed additional difficulties, some of which may simply be another way of stating the problem of reversing the burden of proof. There are fears that trial judge directions on the subject of the apparent absence of motive for a complainant to lie will withdraw factual issues from the jury, such as the possibility that the complainant may have a hidden motive to lie, may have lied for no reason, or may simply have been mistaken.[21] Also, some judges have questioned the logical and legal correctness of the argument that a complainants evidence should be accepted solely and simply because of an absence of motive to lie.[22] A related complaint is that it is fallacious to conclude, from an absence of evidence of a motive to lie, that the complainant has no motive to lie.[23] Apart from fears that go to the fundamental fairness of the jurys verdict, there are also concerns about the fairness of such a cross-examination to the accused personally. Thus, some judges have objected that cross-examinations of the accused on the question of the complainants motives, as occurred in Palmer, are improper or capricious, as defendants cannot be expected to know what goes on in anothers mind and should not be forced to express opinions about a witnesss credibility.[24]

Acting on these concerns, the courts in New South Wales and Victoria have banned cross-examinations and discussions of the complainants motives in trials where no particular motive has been raised in the evidence. This approach emerged in a 1996 New South Wales case, R v E, where the prosecutor and the trial judge had each referred to the complainants apparent lack of motive to lie in their respective addresses to the jury.[25] Justice Sperling considered the prior authorities and held that trial judges should not permit ... the question to be raised for the jurys consideration at all.[26] He discussed a number of the concerns raised above. The most influential passage of his reasons was as follows:

It needs to be emphasised that we are here dealing with a case where there is no direct evidence of an actual motive to lie, nor evidence from which a specific motive to lie could reasonably be inferred. To ask, why would he or she lie? in such a case is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood. That is not to try the case on the evidence, but to speculate concerning unproven facts. The absence of evidence of a motive for lying and of a plausible explanation for lying is not proof that there was no motive for lying. Yet to pose the question at all is to give legitimacy to that method of reasoning and to that conclusion.[27]

In R v Uhrig, Hunt CJ at CL, writing for the Court of Criminal Appeal of New South Wales, held that the illegitimate speculation described by Sperling JA is a sufficient ground to prevent the question from being raised in such a case.[28] In R v Costin, the Court of Appeal of Victoria has also recently held that the question should not be raised in cross-examination as it calls for speculation as to what motive the complainant may have had to lie and that jurors should be told that they must not speculate that because there was no apparent motive for the complainant to lie, there was in fact no reason, and hence she must be telling the truth.[29] Unfortunately, the courts approach to this issue is unsatisfactory for a number of reasons.

First, the courts ban prevents prosecutors from inviting jurors, through either the elucidation of facts from witnesses or rhetorical argument, to regard it as likely that the complainant has no motive to lie. Indeed, this is the precise intention of the judgments set out above, as the courts appear to regard a complete ban on the topic as necessary to prevent an illegitimate treatment of the issue by the jury. The hampering of the legitimate use of this issue as a partial test of credibility is, however, highly unfortunate. If jurors neglect the issue of the complainants apparent absence of motives, then their treatment of the complainants credibility would be narrowed to the tests of demeanour, character, plausibility and the history of the complaint. While these issues provide useful guidance to jurors, there are also numerous pitfalls, most notably the disadvantages suffered by those complainants who are inarticulate, attract unreasonable prejudice, are the victim of assaults that confound the jurors experience or who delayed complaining for good reason. The additional test of absence of motive will not solve these problems, but would add breadth and depth to the jurys treatment of this key issue. The courts approach seems to disregard the virtues of the topic of the absence of the complainants motives, focussing only on its negatives.

Further, by fashioning a remedy on the assumption that jurors will deal with the topic in an illegitimate manner once it is broached, the courts inappropriately disregard the aspects of the criminal justice system that already exist to protect the accused from such unfairness. In particular, the adversarial system has features that protect the accused from illegitimate reasoning resulting from a rhetorical question. The prosecutor is ethically barred from inviting the jury to disregard the principles of criminal justice. The defence barrister is well positioned to educate jurors as to the requirements of burden of proof and the presumption of innocence.

Most importantly, the trial judge can emphasise these issues as much as she likes, and the adequacy of that direction can be reviewed on appeal. It should not be forgotten that the presence of the jury itself is designed to ensure that the factfinding process is fair. The concerns raised by the courts, such as the illegitimacy of accepting the complainants evidence simply because of a lack of motive to lie, would be familiar to jurors from their ordinary life. For example, a similar issue of fairness is raised when someone hears a scandalous rumour about a colleague from an apparently unbiased source. To simply assume that jurors, who, in criminal trials, are directed that the accused is presumed innocent and that the prosecution must prove guilt beyond reasonable doubt, would ignore those principles in favour of an illegitimate process of reasoning raised by a rhetorical question, is to doubt the integrity of the jury system.

Indeed, by banning discussion of this topic except in certain trials, the courts may have actually worsened the position of the accused. Many courts have acknowledged that the question why would the complainant lie? hovers over most sexual assault trials.[30] It is obvious that this observation holds true in trials where the accused does not allege a specific motive to fabricate. It is highly likely that, in many sexual assault trials, the jury will speculate on possible motives and perhaps draw conclusions about the complainants credibility based on the apparent absence of such a motive in the evidence. The courts rule of silence means that the defendant will not benefit from appropriate warnings from counsel and judge in such trials.

In addition, the application and scope of the prohibition are problematic. In Uhrig, Hunt CJ at CL held that Sperling JAs rule did not prevent arguments before the jury in relation to the validity of the motive to lie which has been asserted in relation to a witness in the particular case.[31] This approach draws explicitly on the courts rationale for the ban, the dangers of speculation on unproven facts. Such an exception is essential, given that fairness to the prosecution demands that it have the opportunity to respond to an imputation against its chief witness. However, this key qualifiaction on the prohibition is difficult to apply fairly in practice, logically questionable and of uncertain consequence.

The subject of motive is not one that either counsel can entirely control. The facts of Palmer itself exemplify this, as the question was first raised by the complainant who, rightly, saw it as implicit in the accusation that she had been untruthful.[32] At the High Court special leave hearing, the defence argued that this necessitated a suggestion in cross-examination to the complainant that she had a hidden motive of revenge.[33] The Crown replied that, once the subject was in issue, it was only fair to allow questions of the defendant on this point.[34] On these facts, any outcome of the courts rule of prohibition would be unfair to one of the parties. It would be ridiculous to argue that a statement of a prosecution witness could remove a protection that is meant to benefit the defence. If the defence is correct in saying that the complainants response necessitated a follow-up asserting a hidden motive to lie, then it would be similarly unfair to regard the defence counsels question as triggering an exception to the doctrine. However, if the prohibition on discussion was allowed to stand in these circumstances, then the defence would have been able to allege that the complainant lied out of spite without the prosecution being permitted to explore the defendants own knowledge of a plausible basis for such a motive.

A recent New South Wales decision shows that the entire basis of the exception is questionable. In R v Graham, the prosecutor had asked the defendant why the complainant alleged that her father would request that his nine year old perform an act depicted in a pornographic magazine.[35] Justice Levine, writing for the Court of Criminal Appeal, accepted the argument that this question would inevitably arise in a trial in which there is a denial from beginning to end by the appellant, noting that the defence is required to put to the complainant that the allegations were invented.[36] It is difficult to fault Levine JAs reasoning and yet the consequence of his approach is that the exception entirely swallows the rule. It is highly artificial to distinguish between the explicit assertion of a motive to lie and the imputation that arises from the defendants outright denial of the complainants account. The New South Wales and Victorian cases have also failed to resolve the difficult question of what comments can be made on the subject by counsel or trial judge, either in response to the airing of the question in cross-examination or simply as a discussion of an issue that logically arises on the facts. In recent years, the key judgments have agreed that the question why would the complainant lie? cannot be made the central issue in the trial, nor should the question be left ringing in the jurys ears.[37] However, the response to more subtle treatments of the complainants motives has not been consistent. Some courts appear to treat a proximate statement that the prosecution bears the burden of proof on all issues as meeting any concern about such discussion;[38] others require a specific direction that the accused does not bear a burden to suggest a motive;[39] still others have found that attempts to qualify the question why would the complainant lie? by referring to the burden of proof are confusing, implying that the question must instead be entirely withdrawn from the jury.[40]

The conundrums raised by Palmer and other cases will not be resolved by drawing even finer distinctions or somehow distinguishing certain factual situations. The real problem is that the courts have been too willing to assume that the discussion of the possibility that the accused has no motive to lie will generate unfairness to the accused. Such a problem, to the extent that it exists in practice, can be suitably dealt with by milder approaches than prohibition. These will be discussed next.

4. An Alternative to Prohibition

A number of Australian and Canadian judgments have taken a more cautious approach to the question why would the complainant lie? that utilises existing legal doctrines to deal with the concerns in this area, without the necessity for a prohibitory rule. There are two basic tools: the rules of evidence that regulate cross-examination and the judicial direction. The first is suited to counter any personal unfairness to the accused that might arise from prosecutorial questioning. The second responds to the more fundamental dangers that flow from rhetorical argument on the topic of the complainants motivations.

The rules of evidence require trial judges to prevent improper or unfair questioning of any witness, especially cross-examinations of the accused.[41] Additionally, evidence law generally bars questions seeking an opinion from a witness, such as an assessment of another witnesss credibility.[42] In the 1969 South Australian case, R v Leak, the Court held that the rules of evidence prevent defendants from being asked to enter into the mind of a prosecution witness. It also held that [n]o attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness ... is a liar.[43] Other cases have objected to defendants being forced to disparage the credibility of another witness or become advocates for their own defence.[44] These rules provide the procedure and rationale for trial judges to protect the accused from the possibility that prosecutors will use the question why would the complainant lie? to place the accused in a difficult personal and tactical position.

The advantage of these rules is that, properly conceived, they do not suggest an inflexible ban on all cross-examinations of the accused that touch on the subject of the complainants motives. Rather, they permit trial judges to disallow some crossexaminations while preserving genuine attempts by the prosecution to aid the jurys assessment of the complainants credibility. Trial judges, faced with a prosecution attempt to raise this topic with the accused, should determine, on a voir dire if necessary, the fairness of the prosecutors proposed question on the complainants motives.

Two issues would seem relevant to the trial judges decision. First, the extent to which the defences case suggests that the complainants evidence has resulted from an illegitimate motive arising from the accuseds relationship with the complainant, as opposed to mere mistake or confusion. The case of Graham, discussed above, demonstrates that this test is satisfied in many sexual assault trials.[45] This accords with the legitimate role of the test of absence of motive as an aid to resolving the issue of credibility that dominates most sexual assault trials. The second issue is the form of the question. The bare question why would the complainant lie? should not, ordinarily, be permitted, as it encourages the defendant to express an opinion or comment on the complainants credibility.[46] However, more cautious forms of the question should be allowed. In Leak and in recent Canadian judgments, the courts held that there is nothing unfair about asking defendants if there is anything in their own knowledge of their relationship with the complainant that suggests a reason for the complainant to fabricate a sexual assault allegation against them.[47]

The procedure described above is designed to deal with unfairness to the accused personally, rather than unfairness flowing from the rhetorical impact of a question about the complainants motives. It is submitted these more fundamental difficulties should be remedied by the trial judges direction, rather than by a prohibition of this topic in cross-examination. The problems that presently exist in New South Wales and Victoria demonstrate that a prohibitory rule is probably unworkable. To some extent, the proposed regulation of cross-examination will lower the rhetorical impact of the prosecutors questioning. The remaining impact of this issue, whether arising from a cross-examination, counsels arguments, the trial judges direction, or simply emerging inevitably given the nature of the trial, would be better dealt with by an appropriate warning to the jury by the trial judge.

What should be contained in the trial judges caution? It is submitted that the ideal direction is a modification of one formulated by Deane J in Stafford v R for use when the issue of the accuseds interests in the outcome of the case emerges in a trial.[48] A number of judges have noted an analogy between this issue and the topic of the lack of the complainants motives.[49] Suitable modifications to Deane Js formulation suggest the following direction:

The jury must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the complaint and that it would be wrong and unfair for the jury to accept the evidence of the complainant, simply for the reason that he or she has no apparent motive to lie.

The advantage of this direction is its simplicity, combined with its straightforward appeal to the jurys sense of fairness.

Alternative or additional directions on this issue may also be suitable, but a number of suggestions appearing in the case law are problematic. Some courts have suggested that trial judges should direct that the complainant may be mistaken and that there are many reasons why complainants would lie.[50] However, in many sexual assault trials, mistake is not a live issue.[51] Also, a direction that the complainant may have hidden motives may cast an aspersion on such witnesses that sits poorly with the abolition of the generalised corroboration warning in sexual assault trials.[52] A number of courts have favoured a direction that the accused bears no burden on the issue of motive.[53] This direction should also be treated cautiously, as it may give jurors the impression that the prosecution must prove that the complainant has no motive to lie before the complainants evidence can be accepted. These concerns would be better dealt with by the trial judge, in addition to giving the warning set out above, carefully emphasising that the prosecution must prove the elements of sexual assault beyond reasonable doubt and that the facts are for the jury alone.

Trial judges adherence to the above approach can be regulated by appeal courts. The result of Palmer and other pending appeals fall to be determined by the doctrines regulating criminal appeals. Given the conflicting concerns at stake, the proviso that appeals be dismissed if there is no substantial miscarriage of justice should play a decisive role.[54]

In Palmer, the question put to the defendant should have been more cautiously worded. However, because the rules of evidence, properly conceived, permit the substance of the issue of the complainants motives to be put to the defendant, the question of whether a new trial is required depends on whether the defendant was actually disadvantaged as a result of the question.[55] The prosecutor in Palmer did not prompt the accused to attack the complainant or otherwise undermine his tactical position in the eyes of the jury. Instead, the question merely extracted a negative response, which is probative of the issue of the complainants credibility. The trial judges charge in Palmer repeatedly referred to the prosecutors burden of proof and dealt at length with the possibility that the complainant had lied through a neurosis or for an unknown reason. The test for appeal courts is not whether the trial judge followed a magic formula in respect of this issue, but whether, overall, the direction could have misled the jury by misdirection or

omission in the circumstances.[56] It would seem open to the High Court to find that this direction, which was more favourable to the defendant than many others in this area, obviates the risk that a substantial miscarriage of justice occurred.

5. Conclusion

It is important to recognise that the legal issues raised in these cases form part of the troubled law of sexual assault. Historically, this is an area where the courts have had high concerns about wrongful convictions. In recent times, there has been a growing recognition that the criminal justice system fails to reach most rapes and child sexual abuse. The courts anxiety over the question why would the complainant lie? may, in part, be a response to modern reforms that have weakened the position of the defendant. However, it is important to keep a broader perspective. The issue of motive is still one that disadvantages the complainant more than the accused. The criminal justice systems response to sexual assault remains burdened by attitudes that leave the victims of these crimes grossly underprotected. In such a context, a new intrusion into rape trials designed to favour the accused would be an unwelcome development. If such an intrusion proves unavoidable, then the courts should opt for the least extreme solution available. In this light, the mild regulation proposed in this note should be preferred to the prohibition favoured in New South Wales and Victoria.