Complainant S Motive to Lie

4.4 – Prosecution Witness’ Motive to Lie[1]

4.4.1 - Bench Notes

Warning! The law relating to directions on a prosecution witness’ motive to lie was modified by the Jury Directions and Other Acts Amendment Act 2017. There has not yet been appellate guidance on the operation of these provisions. These Bench Notes should be used with caution. Further information about the Jury Directions and Other Acts Amendment Act 2017 is available in the Department of Justice and Regulation report, ‘Jury Directions: A Jury-Centric Approach Part 2’.

Effect of Jury Directions Act 2015

1.  Jury directions relating to whether a prosecution witness has a motive to lie have been significantly changed by the Jury Directions Act 2015 following amendments by the Jury Directions and Other Acts Amendment Act 2017 which commenced on 1 October 2017.

2.  Under the Act, if the issue of whether a prosecution witness has a motive to lie is raised in a trial, the defence may request that the judge explain to the jury:

·  The prosecution’s obligation to prove that the accused is guilty; and

·  That the accused does not have to prove that the witness had a motive to lie (Jury Directions Act 2015 s44L).

3.  The need for any direction about a prosecution witness’ motive to lie depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Bench Notes: Directions Under Jury Directions Act 2015 for information on when directions are required.

4.  Except as provided by s44L, read in the context of the rest of the Jury Directions Act 2015, including ss12-16, the judge is not required or permitted to direct the jury on the issue of whether a prosecution witness has a motive to lie. Any common law rule to the contrary is abolished (Jury Directions Act 2015 s44M).

5.  The Jury Directions Act 2015 s44L applies to any prosecution witness. In practice, the issue is most often raised in relation to the complainant. The remainder of these Bench Notes address the topic on that basis.

Relevance of the Complainant’s Motive

6.  If the complainant has a motive to make and persist in false allegations about the accused (a “motive to lie”), this may be a relevant factor in judging his or her credit and testing the acceptability of the accusation giving rise to the charges (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96).

7.  However, there is no onus on the accused to prove a motive for the complainant’s allegations (Jury Directions Act 2015 s44L; see also R v Costin [1998] 3 VR 659; Palmer v The Queen (1998) 193 CLR 1; R v Cherry (No.2) [2006] VSCA 271).

8.  The failure of the accused to identify a motive to lie is entirely neutral in relation to the assessment of the credibility of the complainant. A complainant’s account gains no legitimate credibility from the absence of evidence of a motive to lie (Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v SAB [2008] VSCA 150).

9.  The fact that the accused has no knowledge of any fact from which it can be inferred that the complainant had a motive to lie is therefore generally irrelevant. In most cases, the fact that the accused lacks knowledge about the complainant’s motive to lie will simply mean that his or her evidence cannot assist in determining whether the complainant has such a motive (Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v Hilsey [1998] VSCA 143).

Raising the Issue of the Complainant’s Motive to Lie

10.  As the fact that the complainant has a motive to lie is relevant, it is permissible for the defence to cross-examine the complainant about whether s/he has a motive to lie (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567).

11.  It is also permissible for the defence to lead other evidence from which it can be inferred that the complainant has a motive to lie (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96).

12.  Where the accused alleges in his or her evidence that the complainant has a motive to lie, it is permissible for the prosecution to cross-examine the accused about the alleged motive (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567; R v Davis [2007] VSCA 276; R v SAB [2008] VSCA 150).

13.  However, any cross-examination of the accused must be conducted within the limits of relevant and admissible evidence. Thus, while s/he may be questioned about the factual basis of any allegations made, s/he should not be directly asked to give evidence on the motives of the complainant. Such evidence could only be speculative and a matter of opinion upon which the accused could have no expertise (Palmer v The Queen (1998) 193 CLR 1 per Kirby J; R v SAB [2008] VSCA 150).

14.  In cases where the defence alleges that a complainant has a motive to lie, it is also open to the prosecution to put arguments to the jury relating to the validity of that motive (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567).

15.  While the prosecution may properly seek to rebut any motive put forward by the defence, they should not suggest that rejecting the suggested motive means accepting that the complainant has no motive to lie and is telling the truth. There may be other reasons, unknown to the accused, for the complainant making a false allegation (R v Hewitt [1998] 4 VR 862).

16.  For the accused to be cross-examined about the complainant’s motive to lie, s/he must have made an allegation about the complainant lying in his or her direct evidence. The fact that defence counsel made such an allegation in his or her arguments is not sufficient (R v Davis [2007] VSCA 276).

17.  If no direct evidence has been given of a specific motive to lie, and there is no evidence from which a specific motive to lie could reasonably be inferred, the accused should not be cross-examined about the matter. This is because, as noted above, the fact that the accused cannot provide a possible motive for the complainant to lie is generally irrelevant (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v Davis [2007] VSCA 276).

18.  As well as being irrelevant, it is objectionable to ask the accused why the complainant would lie (when the aim of the question is to show that the complainant had no such motive), because:

·  There is a risk that the jury will reason that the absence of evidence of a motive for lying is proof that there was no motive for lying. This method of reasoning, and conclusion, is impermissible;

·  Asking the question is to invite the jury to accept the complainant’s evidence unless the accused gives a positive answer to that question. This risks reversing the onus of proof, as it implies that unless the jury is satisfied that the complainant is a liar, they should accept his or her evidence and convict the accused;

·  Such a question is unfair to the accused, who cannot be expected to see into the mind of the complainant and be held accountable for failing to discern his or her motives;

·  Asking why the complainant would lie is to invite the jury to speculate as to what might be possible motives for lying and to assess their likelihood. That is not trying the case on the evidence, but speculating concerning unproven facts;

·  Focusing on the complainant’s motive to lie may distract the jury from the critical question in a criminal trial – whether the prosecution has proved the guilt of the accused beyond reasonable doubt (see Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v RC [2004] VSCA 183; R v E (1996) 39 NSWLR 450; R v F (1995) 83 A Crim R 502; R v Davis [2007] VSCA 276; R v SAB [2008] VSCA 150).

19.  Similar dangers can arise even if the accused is not specifically asked about the complainant’s motive to lie - for example, if prosecuting counsel rhetorically asks the jury “why would the complainant lie?” in his or her address, or if the complainant asks “why would I lie?” when giving evidence and the jury are forcefully reminded of those words in the prosecutor’s final address (R v RC [2004] VSCA 183).

20.  It is therefore usually inappropriate for the prosecution to raise the question “why would the complainant lie?” in their final address, no matter how the issue of motive has arisen (R v RC [2004] VSCA 183).

When to Give a Direction

21.  Under the Jury Directions Act 2015, the need for a direction depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of a request (Jury Directions Act 2015 ss14-16). See Bench Notes: Directions Under Jury Directions Act 2015 for information on when directions are required.

22.  Jury Directions Act 2015 s44L, as amended in 2017, provides that defence counsel may request a direction under s12 of the Act on the issue of whether a witness for the prosecution has a motive to lie, if that issue is raised during a trial.

23.  Unlike some sections of the Jury Directions Act 2015 which refer to requests for directions by either the prosecution or defence (see, eg, s32(1)), s44L refers only to requests by defence counsel. This suggests the prosecution cannot request a direction on the issue. However, a judge has the power to give a direction under s16 of the Jury Directions Act 2015 if the judge considers there are substantial and compelling reasons for doing so, and after hearing submissions.

24.  If the prosecution believes that a direction under s44L is necessary, then the prosecution should first invite defence counsel to ask for the direction. If the defence declines that invitation, the prosecution may invite the judge to form the view under s16 that there are substantial and compelling reasons for the direction.

25.  One circumstance in which the prosecution may believe that a s44L direction is warranted is where the prosecution has cross-examined its own witness in accordance with Evidence Act 2008 s38. However, it is unclear whether the s44L direction is well-suited to this scenario. See “Section 44L and unfavourable prosecution witnesses” below.

26.  Although s44M(2) abolishes any rule of common law in relation to when a judge is required or permitted to direct the jury on the issue of a prosecution witness’ motive to lie, common law cases may provide guidance as to what could constitute a substantial and compelling reason to provide the direction.

Common law authorities on the need for a motive to lie direction

27.  At common law, judges could consider the prominence of the issue of motive to lie. If the complainant only refers to an absence of a motive to lie once in a lengthy cross-examination, a direction may not be required. However, if that comment was referred to again in counsel’s address, it would assume greater significance and could require a direction (see, e.g., R v RC [2004] VSCA 183).

28.  At common law, in most cases where the accused is asked “why would the complainant lie?”, a firm and clear direction was usually necessary to overcome the dangers outlined above (Palmer v The Queen (1998) 193 CLR 1; R v PLK [1999] 3 VR 567; R v RC [2004] VSCA 183).

29.  As these dangers were not limited to cases in which the prosecution had directly raised the question when cross-examining the accused, a direction could be required in other contexts as well. For example, it may have been necessary to give a direction if the issue of the complainant’s motive to lie was raised by the complainant in his or her own evidence or in counsel’s addresses (R v RC [2004] VSCA 183; R v PLK [1999] 3 VR 567).

30.  Due to the many possible dangers posed by this issue (see above), where the question of motive for lying was raised by way of rhetorical questions in the prosecution’s address, judges were encouraged to assume that the jury may have been misled or diverted from their true task, and to give a direction (R v RC [2004] VSCA 183).

31.  It was generally appropriate to give a direction if the complainant’s evidence was uncorroborated, and the question whether s/he had a motive to lie was a significant issue in the case (e.g. due to cross-examination of the complainant on the issue and/or a focus on the issue in counsel’s address) (see, e.g., R v PLK [1999] 3 VR 567).

32.  However, where there was more than the uncorroborated evidence of the complainant, motive to lie would assume a less significant role, and a direction may not have been necessary (R v PFG [2006] VSCA 130).

33.  In many cases where the jury was invited to reject the motive to lie put forward by the defence, it was appropriate to give a direction. This was because there was a risk that, by accepting the prosecution’s invitation, the jury would mistakenly think that, as no other motive to lie has been suggested, the complainant’s credibility was thereby enhanced (Palmer v The Queen (1998) 193 CLR 1; R v Uhrig NSW CCA 24/10/96; R v PLK [1999] 3 VR 567). However, under the Jury Directions Act 2015, the motive to lie direction does not expressly contain a warning that the jury must not treat the rejection of a motive to lie as supporting a complainant’s credibility. Judges should therefore consider whether this risk remains relevant when assessing whether to give a motive to lie direction which has not been sought.

34.  A direction may not have been required if the prosecution did not challenge the fact that the complainant had a motive to lie (e.g. if they instead sought to convince the jury that, despite having such a motive, the complainant was telling the truth) (R v Cherry (No.2) [2006] VSCA 271).