White v R

1. [1]

   HOEBEN CJ AT CL: I agree with Davies J

2. [2]

   DAVIES J: The applicant stood trial before his Honour Judge Lerve and a jury of 12 on four counts, one of sexual intercourse without consent and three counts of indecent assault. He was convicted on all four counts. On 13 December 2016 he was sentenced as follows:

3. [3]

   The overall sentence was a term of three years’ imprisonment commencing 13 December 2016 and expiring 12 December 2019 with a non-parole period of 18 months expiring 12 June 2018.

4. [4]

   The applicant now seeks leave to appeal against his conviction on the following grounds:

The facts

1. [5]

   The applicant mostly lived by himself at a property "Lanihuli" near Barringun, which is to the north west of Bourke in far north-western New South Wales. For many years he engaged backpackers to work on his farm. The complainant is a German national, and she was a backpacker engaged to work on the farm. She was born in January 1995 and was almost 19 years of age at the time of the offences. The complainant had communicated with Amanda Walmsley, the applicant's granddaughter, by way of email and telephone. She also spoke to the applicant on the telephone before travelling to Lanihuli.

2. [6]

   The complainant went to Lanihuli about a month before Christmas 2013. She travelled by train from Sydney to Dubbo and then by bus to Bourke where the applicant met her. When they met she held out her hand to shake hands but the applicant wanted to hug her.

3. [7]

   The complainant stayed in her own room in the homestead. The applicant was the only other person living at the farm. The applicant would hug the complainant from time to time.

4. [8]

   On 27 December 2013 the applicant and the complainant were at the homestead. They had lunch together. After the meal and while they were still both at the table the complainant asked the applicant what he was thinking. He replied with words to the effect of, "You don't want to know it, I love you". The applicant asked the complainant for a hug. She turned to hug him.

5. [9]

   While the complainant was hugging the applicant he placed his hand on her buttocks. That is the conduct to which count 2 in the indictment related. Immediately thereafter the applicant touched the complainant in the region of her genitals on the outside of the shorts she was wearing. That was the conduct to which count 3 on the indictment related. The applicant then pulled down the complainant’s shorts and underpants and engaged in an act of digital penetration of the complainant's vagina, which is the conduct to which count 1 on the indictment relates. It is accepted that the digital penetration was fleeting. The applicant then took the complainant's hand and placed it on his erect penis on the outside of the applicant's clothing. That was the conduct to which count 4 of the indictment related.

6. [10]

   The complainant said that she fled from the kitchen. She managed to get the telephone from the lounge room, and she tried as quietly as possible to phone the applicant’s granddaughter Amanda or his son Danny. She tried to call 20 or 30 times but they did not answer.

7. [11]

   She then left the house. She removed the keys from the ignition of the vehicle used by the applicant and rode a quad bike, which she had previously ridden while working on the farm, to Tattersalls Hotel at Barringun where she knew there was a person named Dorothee Crawley who was fluent in German. Ms Crawley observed that the complainant was distressed. She accompanied the complainant to the police station where the complainant made a statement. Detective Tancred observed that the complainant was sobbing between words as her statement was being taken.

The course of the trial

1. [12]

   After the Crown opened the case to the jury Mr Thompson, counsel for the applicant, made a short address. He told the jury that it was denied that digital penetration took place, it was denied that there was an assault with an act of indecency by the applicant forcibly placing the complainant’s hand on his penis, and it was denied that the penis was erect.

2. [13]

   Mr Thompson drew attention to the disparity in ages between the complainant and the applicant, and asked the jury to treat the evidence very carefully because of that. He also said that the defence case was that “some of these things did happen but that it was done at all times with the consent” of the complainant.

3. [14]

   The complainant thereafter gave evidence consistent with what has been set out above but in greater detail.

4. [15]

   The complainant was cross-examined. What were said to be inconsistencies in her evidence and what she had earlier said by way of complaint were put to her including that she initially said that the applicant touched or grabbed her breasts. It was put to her that at no stage did any of the applicant’s fingers go into her vagina. She said that they did. It was put to her that she did not express any objection to what the applicant was doing up to that point. She agreed and said it was because she was powerless and shocked. Other matters were asked of her which appeared to be addressed to her credit generally.

5. [16]

   The Crown called Mr and Mrs Crawley to give evidence of the complaint. Neither of them was cross-examined.

6. [17]

   The Crown next called the officer in charge of the investigation. The officer gave evidence about a number of aspects of the investigation including evidence about the arrest of the applicant and the fact that he did not say anything after he was cautioned.

7. [18]

   Finally, there was evidence from a senior forensic biologist who gave evidence concerning DNA. The evidence was that a tape lift had been taken from white underpants belonging to the complainant. The DNA found from the tape lift could not be excluded as coming from the complainant and the applicant. The complainant was the major contributor and the applicant was the minor contributor. The forensic biologist gave evidence about DNA transfer. She was asked to assume certain facts about the living arrangements of the complainant and the applicant, and asked to express an opinion about whether DNA transference was likely.

8. [19]

   The biologist said that it was possible that DNA transfer may have occurred and secondary transfer may have occurred. That could happen if people were in close contact or proximity to each other and were sharing in a similar area or living together. The biologist was cross-examined by Mr Thompson suggesting ways that transfer could have taken place by touching door handles or as a result of hugging. The biologist agreed that transfer could have taken place in those circumstances.

9. [20]

   The Crown then closed its case. The defence called the applicant’s granddaughter Amanda Walmsley. Her evidence was led principally to meet the evidence of the complainant about the calls she made to Ms Walmsley’s phone which were not answered. Ms Walmsley said that she did not receive any missed calls from the property on that day.

10. [21]

    The defence also called the applicant’s son Daniel White in relation to the phone calls said to have been made to him by the complainant. His evidence was to similar effect as that of Ms Walmsley.

11. [22]

    When Mr Thompson addressed the jury at the end of the trial he first spoke about diary entries the complainant had made, about which he had cross-examined her, to suggest that what she was now alleging against the applicant was some sort of fulfilment of her concerns in her diary of being alone on a farm with a man. He also highlighted the inconsistencies in her evidence including an initial allegation made to Mrs Crawley that the applicant had groped her breast, something which she never thereafter asserted. In highlighting the inconsistencies he stressed the improbability of what the complainant had suggested took place. He said she should not be accepted as a witness of truth. He explained her appearance when she made the complaint to Mr and Mrs Crawley as someone who realised the enormity of what she had agreed to with the applicant. He stressed the applicant’s prior good character.

The hearing of the appeal

1. [23]

   At the hearing of the appeal the applicant sought to rely on three affidavits. The first was by the applicant himself sworn 20 March 2017. The applicant said that he did not participate in an interview with the police when he was charged. He recalled having a conference in Bourke with the barrister Mr Thompson early in the piece and he recalled being advised to the effect that he did not have to make a statement to the police.

2. [24]

   The applicant referred to the fact that the Mr Thompson alone represented him for about the first 12 months and at some point he met a solicitor Mr Terry Duff. Subsequently he was told by Mr Thompson that Mr Duff was no longer to be his solicitor and that the new solicitor was Stephanie Hughes from Parkes.

3. [25]

   In paragraph 9 of his affidavit the applicant said this:

4. [26]

   Paragraphs 13 to 15 of the affidavit, to which objection was taken by the Crown, dealt with the applicant’s asserted impotency as follows:

5. [27]

   Finally, the applicant returned to the issue of his giving evidence in paragraph 16 of his affidavit as follows:

6. [28]

   The second affidavit was that of the applicant’s son, Daniel White sworn 21 March 2017. Mr White provided some background about his father and the property where the offences took place. Mr White gave evidence of being telephoned to be told of his father’s arrest and his subsequent engagement of Mr Thompson.

7. [29]

   In relation to the applicant giving evidence, Mr Daniel White said this:

8. [30]

   Mr Daniel White said that having read the complainant’s police statement he made notes about matters that he thought were incorrect or untrue including her claim that she had been very uncomfortable with the applicant for some weeks leading up to 27 December, the physical layout in the kitchen in relation to the opening of the fridge door, the inability of the complainant to get away from the applicant if he was holding her because of his frailty, and her assertion that she called Mr Daniel White after the incident. Mr Daniel White gave notes of those matters to Mr Thompson and said that he expected to be called to give evidence about them at the hearing.

9. [31]

   The third affidavit was from the applicant’s solicitor at the trial, Stephanie Hughes, sworn 16 March 2017.

10. [32]

    Ms Hughes dealt at various places in her affidavit with the issue of the alleged impotency of the applicant. She also annexed to her affidavit a report from Dr Chris McMahon, a genito-urinary physician, dated 9 March 2017 dealing with the applicant’s impotency problem. All of these paragraphs were objected to by the Crown. The paragraphs read as follows:

11. [33]

    The report of Dr McMahon relevantly says this:

12. [34]

    Ms Hughes’ affidavit dealt also with the issue of the applicant’s giving evidence at the trial. She relevantly said this:

13. [35]

    The Crown relied on three affidavits. The first was from the solicitor at the DPP having the carriage of the appeal brought by the applicant. She annexed copies of all file notes, letters and other documents recording instructions from the applicant that Ms Stephanie Hughes had in her possession.

14. [36]

    One of those diary notes referred to the conference on 7 September 2015 which is dealt with in paragraph 10 of Ms Hughes’ affidavit (at [34] above). That file note referred to a discussion at the conference about whether the applicant would be called to give evidence.

15. [37]

    A further diary note on 11 September 2015, three days before the trial commenced, read as follows:

16. [38]

    The same solicitor swore a second affidavit to annex a further diary note that she had received from Ms Hughes. The diary note was dated 16 September 2015 and read:

17. [39]

    The third affidavit was from the barrister Mr Thompson.

18. [40]

    Mr Thompson said that he forwarded an email to the then instructing solicitor, Mr Duff, on 6 July 2014 saying:

19. [41]

    Mr Thompson advised Mr Duff to arrange for the applicant to see a forensic psycho-geriatrician and obtain a report.

20. [42]

    Mr Thompson’s affidavit discloses that the applicant underwent an MRI of the brain on 4 September 2014. The MRI report expressed this conclusion:

21. [43]

    Mr Thompson annexed a report obtained from Dr Rebekah Ahmed, a neurologist. That report relevantly said:

22. [44]

    Mr Thompson also annexed a report from Dr Sharon Reutens, a psychiatrist. Although the report is said to be dated 30 March 2014, the report discloses that the interview for the report was 28 July 2014, and Mr Thompson said that he received the report on or about 30 March 2015.

23. [45]

    The principal purpose of the report appears to have been to assess the applicant’s fitness to stand trial. The psychiatrist concluded that he was fit to stand trial. However, she reported the following matters.

24. [46]

    When the applicant was asked about his memory he said it was “bloody awful”, but then Dr Reutens said he told her “I don’t think my memory is too bad”. He told her that he did not get lost, never forgot appointments and took a shopping list for groceries. He did forget people’s names but thought that was a lifelong problem. He told her that he did not take any regular medications, although that is to be contrasted with the report from the neurologist which said that his medications were Citalopram (an antidepressant), Aspirin and Atorvastatin. In contrast to what the applicant told Dr Reutens about his memory, Dr Reutens interviewed Mr Daniel White who said that he believed his father had developed depression, and that in the last two years,

25. [47]

    Dr Reutens conducted the Addenbrooke’s examination (ACE-R). She reported that he scored 74 out of 100. She said that a score of less than 82 has a likely ratio of dementia of 100:1. She said the score on the ACE-R was suggestive of cognitive impairment.

26. [48]

    Mr Thompson said this in relation to the applicant giving evidence at his trial:

27. [49]

    Mr Thompson said that he saw the diary entries made by the complainant as important in the defence case. His intention was that the jury would see that what she claimed had happened involved self-fulfilling conduct based on the diary entries. Mr Thompson said that the evidence of Amanda Walmsley and Daniel White would refute the evidence of the complainant that she had tried to telephone them after the incidents. He then said:

28. [50]

    Finally, Mr Thompson set out the issues upon which he thought the jury could rely to acquit the applicant. They were the matters which he had dealt with in cross-examination, particularly of the complainant, and the matters that he addressed the jury on in his closing address.

29. [51]

    None of the deponents of the affidavits read was required for cross-examination.

30. [52]

    The applicant submitted that a miscarriage of justice by reference to s 6(1) of the Criminal Appeal Act 1912 (NSW) resulted from the incompetence of his defence counsel at trial. He identified several actions, or inactions, of defence counsel which were said to have been incompetent.

31. [53]

    The first instance of incompetence was said to be defence counsel’s failure to call the applicant to give evidence. The applicant’s case at trial was that the complainant had initiated or was, at least, a consenting and willing participant in the applicant’s touching of her buttocks (count two) and her genital area on the outside of her shorts (count three). The applicant’s case at trial was that the conduct forming the subject of counts one and four on the indictment was a complete fabrication by the complainant and did not occur.

32. [54]

    Before this Court the applicant submitted that defence counsel put these propositions to the complainant in cross-examination but did not lead any further evidence in support of them. In this regard, it was submitted that the matters put and denied in cross-examination did not constitute evidence. The complainant, in cross-examination, did not retract or significantly alter her account. She consistently denied the propositions put to her by defence counsel that the conduct was initiated by her or otherwise did not happen.

33. [55]

    Further, there was no independent evidence, such as CCTV footage, which might contradict her account. In those circumstances, Senior Counsel for the applicant submitted that in a direct evidence case, unless a complainant was inherently unreliable and/or implausible, to have any prospects of success an accused must call evidence challenging the account. If he did not do so the applicant’s conviction was almost inevitable. There was, it was put, nothing to be lost by calling him as a witness notwithstanding the unpredictability of the evidence he would give by reason of his age, infirmity and mental condition. It was submitted that it was incompetent for trial counsel not to have done so.

34. [56]

    The applicant submitted further that when part of the case being run on his behalf was consent for some of the acts, it was necessary for there to be evidence of his state of knowledge for the purposes of s 61HA(3)(c) of the Crimes Act 1900 (NSW).

35. [57]

    The second way in which the applicant’s counsel was said to have been incompetent was by failing to take the applicant’s instructions on whether he wished to give evidence. Senior Counsel for the applicant submitted that the applicant was, in this respect, not properly advised and not given the opportunity by defence counsel. It was submitted that the matter should have been the subject of careful written instructions.

36. [58]

    A third, and related, instance of incompetence at trial was said to be defence counsel’s failure to advise the applicant on the ramifications of not giving evidence to counteract the complainant’s account. The result was said to be that, without giving evidence, he would almost inevitably be convicted and that the jury would be able to reach no logical conclusion other than to accept the complainant’s account.

37. [59]

    It was submitted that counsel’s incompetence was compounded by his failing to investigate further the applicant’s instructions with respect to impotency and that he had suffered from erectile dysfunction for some years. It was submitted that it was incompetent for defence counsel not to have sought to call evidence in respect of the matter.

38. [60]

    In supplementary submissions lodged, with leave, after the Court had reserved its decision, the applicant submitted that the authorities made clear that the decision whether or not an accused gives evidence is one vested in the accused and not counsel appearing for the accused. Reference was made to MB v R [2009] NSWCCA 200 at [35]-[39]; R v Smith [1999] NSWCCA 126 at [47]-[55]; and Azzopardi v R (2001) 205 CLR 50; [2001] HCA 25 at [5]-[6] and [43]. The applicant submitted that counsel did not appropriately advise the applicant concerning his right in this regard. In that way the trial miscarried.

39. [61]

    The applicant submitted that his counsel at the trial made admissions in relation to counts two and three, and that this was done without complying with s 184 of the Evidence Act 1995 (NSW) in that the applicant was not involved in the decision to make the admissions.

40. [62]

    The Crown submitted that the applicant’s grounds of appeal involved hindsight reasoning. Whether or not they disclosed professional incompetence, relevantly they did not give rise to any miscarriage of justice. Defence counsel’s decision not to call the applicant to give evidence was, objectively, rationally explicable given that his evidence might have been unreliable due to his age and the deterioration in his memory.

41. [63]

    The Crown submitted that, in accordance with fundamental principles of criminal law, there was no obligation on defence counsel to call the applicant as a witness. As the trial judge noted in his summing up, the burden of proof rested on the Crown from first to last and he directed the jury appropriately in this regard.

42. [64]

    The Crown submitted that defence counsel’s purported failure to advise the applicant in relation to giving evidence did not give rise to a miscarriage of justice. In any event, it was clear from the affidavits of Ms Hughes and Mr Thompson that the matter was raised with the applicant. The instructing solicitor Ms Hughes made a contemporaneous file note on 16 September 2015 that “Les [is] happy w[ith] not being called to give evidence”.

43. [65]

    In Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Gleeson CJ said at [8]-[9]:

44. [66]

    In commenting on this passage McClellan CJ at CL (with whom Johnson J and Grove AJ agreed) said in Kho v R [2012] NSWCCA 71:

45. [67]

    In R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484 Wood CJ at CL (with whom Beazley JA and Greg James J agreed) said:

46. [68]

    In Nudd, Kirby J said at [64]:

47. [69]

    In the first place, it may be accepted that the decision whether or not an accused gives evidence must be that of the accused himself or herself after having received proper and appropriate advice from counsel: R v Smith at [47]; R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215 at [40]; MB v R [2009] NSWCCA 200 at [35]-[39]. The matter is reinforced by r 37 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).

48. [70]

    However, the failure of counsel to comply with those requirements will not necessarily result in a trial which is unfair or in a miscarriage of justice: R v Birks (1990) 19 NSWLR 677 at 685; Ignjatic v R (1993) 68 A Crim R 333 at 336. As Kirby J said in Nudd, an appeal such as the present is not an enquiry into the professional competence of the legal representatives of the accused. That is a function that belongs to other bodies. The second and third complaints in the present matter ([57] and [58] above) do not, in that way even if made out, give rise to a miscarriage of justice. The enquiry about a miscarriage is confined to the decision not to call the applicant.

49. [71]

    The evidence in the present case suggests that the barrister failed to obtain clear instructions from the applicant about the applicant’s giving evidence. Rather, the barrister had formed the view, for reasons which will be discussed, that the better course was that the applicant should not give evidence.

50. [72]

    Notwithstanding that failure, the first enquiry must be whether the decision by the barrister not to call the applicant to give evidence was, when viewed objectively, a rational decision (Gleeson CJ in Nudd at [9]), or whether it was a choice that a competent counsel could fairly make (McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [95]).

51. [73]

    The following matters lead to the conclusion that counsel’s decision not to call the applicant to give evidence was a rational decision and one that competent counsel could fairly make:

52. [74]

    Given what counsel knew from the medical reports, from his talking with the applicant’s son Daniel and from his assessment of the applicant, and considering the material that he had to work with to cast doubt on the complainant’s account of the events, it cannot be said that the decision not to call the applicant to give evidence was not a rational decision when viewed objectively.

53. [75]

    However, the ultimate enquiry is whether, in the events that occurred at the trial, it can be said that an unfair trial resulted and that there was a miscarriage of justice.

54. [76]

    The diary note of 16 September 2015 is not without significance. That recorded a conference held with the applicant at the conclusion of the hearing on 16 September 2015. The applicant said that he was happy with not being called to give evidence. Had he insisted otherwise, it was not too late for that to occur because final addresses did not commence until the following day. The applicant’s statement that he was happy not being called to give evidence is entirely consistent with what appears in paragraphs 9 and 16 of his affidavit sworn in the present proceedings, and with the view that his son Daniel appeared to have formed about the applicant’s giving evidence as disclosed in paragraphs 15 and 16 of Daniel White’s affidavit. Both were content to allow the barrister to run the trial as he saw fit.

55. [77]

    The decision whether to call the applicant in the circumstances of this case was a difficult forensic determination. With the evidence counsel knew he had in advance (the abandoned allegation of groping the complainant’s breast, the non-existent phone calls, the similarity of the events to the diary entries) and the concession obtained in cross-examination that the complainant did not say no or protest the advances, it could not be said to be unreasonable, let alone irrational, not to call a client with known and medically verified cognitive impairment which affected his memory, who had given inconsistent versions of events, and whose adult son considered he (the client) would perform poorly in the witness box.

56. [78]

    There was nothing unfair about the process. That there was neither an irrational nor even an unreasonable forensic decision points strongly against there being a miscarriage of justice. I do not consider that the decision not to call the applicant deprived him of a chance of acquittal that was fairly open: Mraz v the Queen (1955) 93 CLR 493 at 514; TKWJ at [26].

57. [79]

    As to the issue of the applicant’s impotence, it should first be noted that the complaint in the submissions concerning this matter and the proffering of the report of Dr McMahon fall outside the terms of the ground of appeal which is concerned only with a failure to advise about giving evidence and to call the applicant. If the issue is, however, considered, three things in particular should be said about it. The first is that Dr McMahon’s report is not put forward as fresh evidence (which it is not), but as evidence of what could and should have been tendered if the trial had been competently conducted.

58. [80]

    Secondly, as Dr McMahon makes clear, his conclusions were based principally on information given to him by the applicant and on the applicant’s behalf. Although Dr McMahon concluded it was likely that the applicant had significant erectile dysfunction he said that his opinion was largely speculative and was based on information supplied by the applicant. Moreover, Dr McMahon said that erectile dysfunction was defined as the inability of a man “to obtain and maintain an adequate erection for satisfactory sexual intercourse”. Nowhere does Dr McMahon say that the applicant was incapable of obtaining an erection as the complainant asserted he had.

59. [81]

    The third matter is related. For Dr McMahon’s evidence to have any weight at all it would have been necessary for the applicant to give evidence of the matters he told Dr McMahon. As Ms Hughes noted in her file note of 11 September 2015 there was no evidence that could be obtained to corroborate the applicant’s evidence concerning his impotence prior to the events complained of. Proof that the applicant was impotent would be based solely on any evidence that he gave. The lack of any corroboration was a factor to be considered in whether the applicant’s position was likely to worsen if he gave evidence about that and other matters given the medical and other evidence about the applicant’s memory. The applicant faced the risk of an assertion of recent invention.

60. [82]

    No miscarriage of justice resulted from not pursuing this matter at the trial. It can be seen from the third matter discussed above that the issue is inextricably tied to the decision of whether or not to call the applicant. The outcome may have been worse if this evidence was led for the reasons given.

61. [83]

    In the submissions filed by the applicant after the hearing of the appeal, complaint is made that admissions were made by counsel without the agreement of the applicant contrary to s 184 of the Evidence Act. This submission is also outside the terms of the ground of appeal. The evidence filed in the appeal on both sides does not address the point. It is doubtful if any admission was made but by virtue of the complainant’s concession that she did not say no nor protest what was happening, it cannot be said that any miscarriage of justice has resulted.

62. [84]

    I would reject this ground of appeal.

63. [85]

    In his closing address to the jury, the Crown said this:

64. [86]

    The applicant submitted that the trial judge erred by allowing the Crown, in his address to the jury, to resort to reasoning which involved the reversal of the onus of proof. It was submitted that this too gave rise to a miscarriage of justice.

65. [87]

    The applicant submitted that the submission constituted the posing of the rhetorical question, why would the complainant lie. Reference was made by analogy to Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2. The applicant submitted that it was not appropriate that the distance or time that a witness has had to travel to give evidence should be capable of lending support to his or her credibility. It was an irrelevant matter which may have artificially suggested to the jury that the complainant was less likely to be lying. It also further highlighted that the applicant had not given any evidence.

66. [88]

    The Crown submitted that it was wrong to suggest that the Crown Prosecutor’s statement to the jury amounted to a reversal of the onus of proof. He made no submission to the effect of “why would the complainant lie?” Rather, given that the defence had asserted that the complainant had a motive to lie, the issue was raised in the proceedings, and the Crown was entitled to make a submission the jury in his closing address relating to the evidence of a motive to tell a lie. His submission did not go beyond the evidence.

67. [89]

    The Crown submitted that, in any event, no objection was taken to the Crown Prosecutor’s closing address. No application was made to discharge the jury. As a result, rule 4 arises for consideration and leave should be refused to the applicant because he has failed to demonstrate that he lost a real chance, or a chance fairly open, of being acquitted.

68. [90]

    No objection was taken by counsel for the accused at the trial to what the Crown Prosecutor said in this regard. Nor was any application made to the trial judge either to instruct the jury in any particular way or to discharge them because of any prejudice to the accused. Rule 4 applies.

69. [91]

    It is scarcely surprising that no objection nor application was made. The complainant’s credibility and even her honesty had been put in doubt by the way she was cross-examined. The Crown was entitled to comment on matters that reflected positively upon her credibility. I am unable to read the Crown’s submission as impliedly posing the question, why would the complainant lie about the allegations. Nothing in the submission reflected in any way on the applicant’s silence in Court or otherwise.

70. [92]

    Where the complainant’s credibility was in issue no objection could be taken to the Crown pointing out matters that reflected positively on that credibility. The trial judge accurately reminded the jury of the Crown’s submission in that regard. The trial judge gave standard directions to the jury about the applicant’s silence but not at a time when he reminded the jury of the Crown’s submission set out at [84] above. There was, accordingly, no linking of the two matters. The trial judge made it clear to the jury that it was for the Crown to prove matters beyond reasonable doubt.

71. [93]

    There is no analogy with what was said in the present case to the situation in Palmer. That was a case that involved cross-examination of the accused asking him to suggest reasons why the complainant might have been lying or had a motive to lie.

72. [94]

    In South v R [2007] NSWCCA 117 Hunt AJA (with whom Simpson and Whealy JJ agreed) said:

73. [95]

    In Brown v R [2008] NSWCCA 306 the Crown said in its closing address to the jury:

74. [96]

    In that case it was submitted that that aspect of the Crown’s address invited the jury to reason “Why would the victim lie?” and that such an invitation fell foul of the mischief identified in Palmer. No application was made at the trial and r 4 applied.

75. [97]

    Justice McClellan (with whom Hall and Harrison JJ agreed) said:

76. [98]

    In my opinion, what was said by the Crown Prosecutor in the present case did not even go as far as what was said by the Crown in Brown.

77. [99]

    In Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328 Latham J (Spigelman CJ and Hidden J agreeing) reviewed the authorities and concluded as follows:

78. [100]

    In my opinion leave under r 4 should not be given. Nothing said by the Crown Prosecutor invited any reasoning involving a reversal of onus. Credibility was in issue and the Crown was entitled to refer to it. No objection or application was made. No miscarriage of justice is demonstrated.

79. [101]

    I would reject this ground of appeal.

Conclusion

1. [102]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [103]

   BELLEW J: I agree with Davies J.