Citation: R v RM (No 5) [2023] NSWDC 94
Court: District Court of New South Wales
Date: 23 March 2023
Judge(s): Abadee DCJ
Background
The accused stood trial in the District Court on 11 alleged sexual offences against his biological daughter. The complainant was the accused's child, and the alleged offending spanned a significant portion of her childhood and adolescence.
Following the Crown prosecutor's closing address to the jury, defence counsel raised two objections in the absence of the jury. She sought to have certain portions of the Crown's address withdrawn before she commenced her own closing address the following morning.
The Crown prosecutor declined to withdraw, correct, or qualify any of the contested submissions. The matter was therefore referred to Abadee DCJ for a ruling on whether judicial intervention was warranted.
Legal Issues
- Whether the Crown's submissions about the inherent improbability of the complainant fabricating certain allegations amounted to an improper invitation to the jury to speculate about a motive to lie.
- Whether the Crown's submissions about the complainant's delay in making a complaint were based on impermissible opinion evidence or speculation, rather than legitimate inference from primary facts in evidence.
Decision
On the "probability of lying" submissions: Defence counsel argued that the Crown's remarks about count 1 (alleged conduct occurring in the parents' marital bed) effectively invited the jury to find the complainant had no motive to lie. Abadee DCJ disagreed. The Crown was entitled to submit that a jury could regard the specific circumstances of count 1 as making fabrication unlikely, without that amounting to a submission about motive. His Honour drew a clear distinction: a submission directed at how probable it was that the complainant fabricated her account is different from a submission about why she would have done so. Both go to credibility, but they are not the same thing.
The Crown's submissions did not invite the jury to speculate about a motive to lie. Rather, they invited the jury to consider the inherent probabilities of the account being true or fabricated. That was a legitimate response to the defence case, which squarely asserted fabrication. His Honour noted the Crown had also properly directed the jury that the accused bore no onus to prove anything.
On the complaint delay submissions: The Crown had addressed the jury on why the complainant may not have come forward earlier, pointing to primary facts in evidence including the complainant's age, her developing independence, her emerging friendships, and her long-standing emotional and practical dependence on the accused. Defence counsel argued this involved the Crown drawing upon matters not in evidence, including opinion evidence about the complainant's psychological development.
Abadee DCJ rejected that submission. The Crown was entitled to invite the jury to draw inferences from primary facts that were properly before it. The complainant's relationships, friendships, and transition into adulthood were all matters in evidence, and jurors could legitimately draw on their collective life experience in reasoning about them. No opinion evidence from the complainant was required to support those inferences.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court drew a clear doctrinal distinction between submissions about the probability that a complainant fabricated evidence and submissions about a motive to do so: these are different questions, even though both bear on credibility.
- A Crown prosecutor is entitled to submit to a jury that the specific circumstances of an alleged incident make fabrication inherently unlikely, provided that submission does not stray into directing the jury to speculate about why the complainant would have lied.
- Where delay in complaint is in issue, the Crown may invite the jury to draw reasonable inferences about a complainant's developing independence and changing relationships from primary facts already in evidence, without needing to call opinion evidence on the complainant's psychological state.
- Judicial intervention in a Crown closing address is not warranted merely because defence counsel disagrees with the framing of a submission, where that submission is a legitimate response to a defence case that has directly challenged the complainant's credibility.
- Abadee DCJ flagged that, while intervention was not required, there could be utility in drawing out the probability-of-lying versus motive-to-lie distinction explicitly when delivering the standard "motive to lie" direction during the summing up.
Legislation and Cases Referenced
Legislation: None cited.
Cases: None cited.