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Wilson, Debra --- "Case note: specific directions on motivations to lie: Clarke v the Queen" [2016] NZCrimLawRw 9; [2016] NZCLR 78

Last Updated: 21 December 2018


CASE NOTE: SPECIFIC DIRECTIONS ON MOTIVATIONS TO LIE: CLAR K E V TH E QU EEN


DEBRA WILSON


I. INTRODUCTION

It is common in cases involving complaints of sexual offending for the prosecution to ask the defendant if there is any reason he or she can think of to explain why the complainant might have lied, particularly since such a complaint would potentially result in a long, traumatic investigation and trial process. This can be considered a “natural question”1 to ask and one which reflects the “commonsense” reality that a jury “would inevitably be asking” whether the complainant had a motive to lie.2

Despite the naturalness of this question, however, it can become problematic from a legal perspective if the manner in which the prosecution phrases the inquiry unintentionally leads the jury to think that the burden of proof has shifted from the

Crown to the accused. In this situation the Judge will be required to specifically

correct this misunderstanding during summing up. The point at which a specific direction becomes necessary has occupied the attention of the Court of Appeal in multiple cases in 2015 and 2016, and was most recently considered by the Supreme Court in an application for leave to appeal in Clarke v The Queen.


II. THE FACTS IN CLARKE

In July 2015 Clarke was convicted of two counts of sexual violation following a jury trial in the District Court. The two counts, one specific and one representational, related to events in 1990-1991 when Clarke was 18-19 years old and the complainant was 11-12 years old. In both counts the complainant (the younger brother of a friend of Clarke’s) claimed that he had been forced to perform oral sex on Clarke. Clarke appealed to the Court of Appeal against conviction and sentence.3 In relation to conviction, he argued that the cumulative effect of three specific errors resulted in a miscarriage of justice. These errors were:4

1. That the prosecution had inappropriately led evidence from the complainant as to the frequency with which the alleged sexual offending occurred;

2. That the Judge had inadequately directed the jury on the requirement that the prosecution establish that the complainant had not consented to the sexual activity and that Clarke could not have had reasonable grounds for believing that the complainant had consented;

3. That the Judge had permitted the prosecution to attribute to Clarke an assertion that the

complainant had a motive to lie in his claims, when that attribution was not justified and reflected adversely on Clarke.

Further, Clarke argued that there was a lack of evidence to establish the representative charge and therefore the jury’s verdict was an unreasonable one. The

Senior Lecturer in Law, University of Canterbury

1 R v M [2000] NZCA 445; (2000) 18 CRNZ 368 (CA) at [11].

2 R v T [1998] 2 NZLR 257 (CA) at 265, also reported as R v Tennant (1998) 15 CRNZ 536 (CA) at 544.

3 Clarke v R [2016] NZCA 91.

4 Clarke v R, above note 3, at [6]-[9].

appeal against sentence was based on the argument that the Judge had rated Clarke’s culpability more seriously than it had deserved, and that insufficient credit was given for his age at the time of offending. The sentence of two years and four months was therefore too high; the sentence ought more fairly to have been set at under two years, which would have permitted an application for Home Detention to have been made.

The Court of Appeal dismissed both grounds of appeal. Clarke subsequently applied for leave to appeal to the Supreme Court solely on the basis of error 3. The Supreme Court refused the application.5

III. DISCUSSION OF THE MOTIVE TO LIE IN CLARKE

When Clarke was first interviewed by the police he was asked why the complainant might have been motivated to lie. Clarke suggested in response that a complaint of this nature might have enabled the complainant to make a claim for ACC. During the trial this potential motive was put to the complainant on cross-examination, and he denied ever having made an ACC claim in relation to these events. When Clarke was then asked about his earlier suggestion as to motive during cross-examination, he replied that having heard the complainant’s evidence, he was no longer sure that this was the motive.6 At the conclusion of the evidence, the Judge summed up the case to the jury by giving “conventional and unobjectionable directions on the onus and standard of proof”.7 These directions did not include any specific reference to the discussion of the complainant’s motive to lie.

In the Court of Appeal, the defence argued that both the prosecution’s questioning and the Judge’s summing up were problematic. 8 First, it was argued that the prosecution had “unjustifiably sought to attribute to Clarke a claim that the complainant had a motive to lie when that proposition had not been initiated by Clarke or on his behalf at any stage.” The prosecution had then “destroyed the basis for any such theory” and then highlighted this to the jury as a matter that “could be taken into account against him.” Second, it was argued that a specific direction to the jury had been required to the effect that the burden of proof remained on the Crown to establish all elements and the fact that any suggested motive to lie had not been established did not affect this.

The first argument was rejected on the facts. The Court felt that the defence had “somewhat overstated”9 the prosecution’s actions. Clarke had initially volunteered the theory about an ACC claim and had accepted on cross-examination that this was his opinion. Further, the prosecution’s mention of this during the closing address was merely “a passing comment”. Overall, the Court considered that the motive to lie “was unlikely to be a major issue that the jury would dwell on.” 10 The second

5 Clarke v R [2016] NZSC 79.

6 Clarke v R, above note 3, at [23].

7 Clarke v R, above note 3, at [26].

8 Clarke v R, above note 3, at [27]-[28].

9 Clarke v R, above note 3, at [30].

10 Clarke v R, above note 3, at [30].

argument was also rejected. In light of the previous discussion the Court was “not persuaded” that a specific jury direction was required.11

Both arguments were again raised in the application for leave to appeal to the Supreme Court. This application was refused: “Like the Court of Appeal, we see no risk that the jury might have thought the burden of proof rested on Clarke as a result of the references to motive to lie.”12 It was not, therefore, considered to be necessary in the interests of justice to hear the appeal.

The Court of Appeal’s approach to references to motives to lie, which appears consistent with previous Court of Appeal discussion, therefore received some level of support from the Supreme Court. In addition, the Supreme Court may have added another couple of factors which will be seen as relevant in determining whether an appeal on this basis in the future will be successful.


IV. THE GENERAL APPROACH OF THE COURT OF APPEAL IN MOTIVE TO LIE CASES

A. Factors Indicating That A Specific Direction To The Jury Needs To Be Given On

Motive To Lie13

The recent Court of Appeal cases have made clear that there is no “invariable requirement”14 or “hard and fast rule”15 that a specific direction must be given if the absence of a motive to lie is raised. Whether a specific direction is required will depend on the context and the facts of each case. An analysis of relevant cases, however, suggests that specific directions will generally be expected to be given to the jury if two tests are met:16

1. The evidence would “deflect or distract”17 the jury from the central issue, which is whether the Crown had proved the charge and each element of the charge beyond reasonable doubt; and

2. The result of this deflection or distraction is that there is a real risk of “a wrong verdict”18 or of “a miscarriage of justice.”

In relation to the first test, the mere mention of the absence of a motive to lie will not require a specific direction to be made.19 The ultimate question is therefore whether the deflection or distraction is likely to have led the jury to believe that the

11 Clarke v R, above note 3, at [31].

12 Clarke v R, above note 5, at [4].

13 This was referred to as a ‘direction in terms of R v T’ in R v Hayman [2006] NZCA 422, referring to

R v T, above, note 2.

14 R v Hayman, above note 13, at [32].

15 Tuhaka v R [2015] NZCA 540 at [18].

16 R v Hayman, above note 13, at [33].

17 R v T, above note 2, at 265.

18 R v Adams CA70/05, 5 September 2005 at [74].

19 R v E [2007] NZCA 404 [125].

burden had shifted from the Crown, whether to the accused, or perhaps to being an

“equal onus” placed on both the prosecution and defence.20

Sufficient deflection or distraction appears to have occurred in cases thus far in one of two distinct ways. The first is through repetitive mention by the prosecution of the absence of a motive to lie.21 An example of this can be seen in R v M, where additional repetitive questioning as to motive to lie was considered particularly problematic after the accused had “dead-batted” the initial questions by stating that he had no explanation.22

The second, most common, way is through the form of questioning used by the prosecution. While it is permitted to question whether the accused has knowledge of any facts suggesting a motive to lie, requiring the accused to speculate as to such a motive might be considered as reversing the burden.23 This might occur, for example, through the prosecution simply asking the obvious “why would the complainant lie?”24

Alternatively, the specific language chosen might suggest a reversal of burden. Examples in cases include any indication that the accused must put forward a “credible” motive,25 or that the failure to do so might bolster the credibility of the complainant’26 or would be a “fundamental flaw” or “fundamental problem” with the defence’s case. 27 Appeal judges have commented on “unwise” 28 “inapt” 29 or “unfortunate” 30 language chosen for this reason. In M v R, for example, it was commented that the prosecutor had made an “error”31 in using this “unfortunate” language: “the only logical explanation is that she was telling the truth, that she is not a liar. There’s no reason in any of the evidence to suggest or prove, or establish that she is.”32

While the first test might naturally focus on specific language used, or its repetition, the second test looks at the effect of this in the context of the overall trial, and asks whether there was a “real risk of a wrong verdict”33 or a risk that “any miscarriage of justice could have arisen”.34 Thus, in P v R for example, although the prosecution’s repetition of lack of motive had been “unwise”, a specific direction was not required since the repetition had “never reached the point of positing a reversal of the onus

20 See the argument of defence counsel in R v Hayman, above note 13, at [31] that the question “who do you believe?” being asked by the judge might have made the jury think there was an “equal onus” on both the prosecution and the defence.

21 R v E, above note 19, at [127].

22 R v M, above note 1, at [18].

23 R v M, above note 1 at [17], P v R [2015] NZCA 96, at [49].

24 R v T, above note 2 at 265.

25 R v T, above note 2 at 265.

26 R v E, above note 19, at [125].

27 R v Adams, above note 18, at [66].

28 P v R, above note 23, at [49].

29 Penman v R [2015] NZCA 364 [31].

30 M v R [2015] NZCA 183 [54].

31 M v R, above note 30, at [55].

32 M v R, above note 30, at [53].

33 R v Adams, above note 18, at [74].

34 R v Hayman, above note 13, at [32].

of proof”. 35 In M v R, although the language used had been an “error” and “unfortunate” it did not give rise to a miscarriage of justice when viewed in light of the trial as a whole. This was because:36

- In the trial as a whole, the words used would have been innocuous to the jury; and

- The judge and counsel addressed the jury extensively and appropriately on the standard and

burden of proof at the start of the trial; and

- The prosecution’s language in closing was otherwise temperate and appropriate; and

- The judge’s directions in his summing up were appropriate.

As M v R suggests, an appropriate summing up by the Judge might be able to correct any deflection or distraction. In R v T, it was considered that this might require the judge to “intervene firmly”,37 and in R v M it was thought that a “strong direction”38 might be required to achieve this. In R v Adams it was commented that the absence of a specific direction from the Judge is not necessarily fatal, even though it might have been “preferable” that this occurred.39

B. Factors Indicating That No Specific Direction Is Needed

As discussed above, whether a Judge needs to give a specific direction will depend on context. There have been indications in cases that a specific direction will not be required where the inquiry was “made briefly or in a low-key way”40 or was not made a “special feature”41 of the closing address. Further, prosecution comments made to “dispel or negate”42 a defence argument of witness collusion will not require a specific direction, unless these comments go beyond merely negating such an argument to suggesting a reversal of burden.

C. Scope Of A Specific Direction

The primary purpose of a specific direction is to correct any jury misunderstandings of the effect of the discussion of a motive to lie. This will normally be achieved by the use of language which ensures the jury is aware that the burden remains on the prosecution to prove each element of the charge, and that therefore the accused is not required to advance a credible reason as to a motive for the complainant to lie.

In addition, a Judge may comment on the weight to be given to the evidence. It may, for example, be acceptable for a Judge to advise the jury that it can “weigh [the absence of a motive to lie] in the mix in deciding whether you accept the evidence of one or another.”43 If the accused has not been given the opportunity to respond on cross-examination to an argument that there was no motive to lie, then it may be

35 P v R, above note 23, at [49].

36 M v R, above note 30, at [55].

37 R v T, above note 2, at 265.

38 R v M, above note 1, at [18]. See also R v E, above note 19, at [127].

39 R v Adams, above note 18, at [43].

40 R v M, above note 1, at [11], P v R, above note 23, at [49].

41 R v M, above note 1, at [11].

42 R v Roper [2016] NZCA 263 at [22].

43 Tuhaka v R, above note 15, at [10].

acceptable for the Judge to inform the jury that “you may consider that this suggestion carries less weight because that question was never explored with [the accused].”44 In an extreme example, the lengthy and repetitive comments made by the prosecution in Penman led to the Judge commenting to the jury that “As far as that is concerned, I would urge you to put that submission to one side. That is not a matter, in my view, that you can probably take on board.”45 On appeal, the Court noted that such a specific direction resulted in “no risk”46 that the jury was confused as to the burden. In a subsequent case, however, the Court of Appeal clarified that “Penman does not signal a general departure from the orthodox approach to motive to lie directions”47 meaning that it will not be necessary in every case to instruct the jury to put the submission to one side.

Finally, in cases where the prosecution places significant stress on the lack of motive in both questioning and closing, it may be appropriate to state specifically that “the lack of evidence of motive does not equate to lack of motive.”48

V. THE COMMENTS OF THE SUPREME COURT IN CLARKE

The Supreme Court stated its agreement with the Court of Appeal in finding that a specific direction to the jury was not required in this case. It noted the following elements of the Court of Appeal’s reasoning:49

1. There is not a requirement that a judge must always give a specific direction;

2. The critical issue is whether there is a risk that the jury believed the burden of proof had shifted from the Crown;

3. The prosecution’s references to motive to lie were brief;

4. The issue had been raised by Clarke in the police interview and during cross-examination;

5. There was only a passing reference made during the prosecution’s closing address.

This appropriately reflects the reasoning of the Court of Appeal, and is consistent with the previous cases discussed above.

The Supreme Court then moves to a discussion of the steps that the Judge had taken to address any possible jury misunderstanding. This is interesting because in previous cases the focus has been on the conduct and language used by the prosecution. The role of the Judge in preventing a resulting miscarriage of justice has been discussed only briefly and often in general terms, through indications that strong or firm

44 S v R [2016] NZCA 81 at [7]. Note the Court of Appeal’s reliance here on s92 Evidence Act which states that where a party fails to cross-examine a witness on “significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters” the Judge may take one of several actions, including “(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; ...” As a result of this, the Court of Appeal found the Judge’s comments “not only orthodox, but mild” at [10].

45 Penman v R, above note 29, at [32].

46 Penman v R, above note 29, at [33].

47 Tuhaka v R, above note 15, at [21].

48 R v E, above note 19, at [127].

49 Clarke v R, above note 5, at [3].

interventions might be needed.50 The Supreme Court highlights the following actions of the Judge in Clarke, seemingly with approval:51

1. The emphasis on the burden of proof remaining with the Crown during the opening statement to the jury;

2. The repetition of this during the summing up;

3. The general instruction as to the significance of the accused giving evidence

4. The use of a question trail, which again made it clear that the burden remained with the

Crown.

These points can be seen as a useful guide for future cases.

Finally, the Supreme Court hints at an additional step that defence counsel might need to take:52

Very experienced defence counsel (not [current counsel]) did not see the need to raise the issue with the Judge after the summing up was completed, even though an opportunity to do so was provided.

The idea of defence counsel raising issues with the Judge’s language immediately following summing up appeared briefly in S v R. 53 In the District Court, Judge Cameron had advised the prosecution that if they referred to motive to lie during closing, he would comment on this during his summing up. Prosecution did reference motive to lie, and the Judge commented on this on two occasions during summing up, including the statement that “if you are not sure about the truth of her evidence... the Crown will not have proved its case beyond reasonable doubt.”54

The Court of Appeal describes subsequent events:55

After the jury had retired, counsel raised a matter with the Judge. He then recalled the jury and said:

[1] All right members of the jury, you will be wondering why you were called back so soon. After you retire, it is normal practice for me to ask counsel whether they consider that the

summing up needed to be added to in any way, shape or form and there is one matter that was

raised and I agree that clarification needs to be given.

The emphasis on the defence counsel immediately raising the lack of a sufficient specific direction by the Supreme Court is interesting. It appears in the list of reasons justifying the appeal being dismissed, which could be taken to suggest that the omission of counsel to do so might count against a later appeal. This may be something that defence counsel ought to keep in mind in future cases.

50 The exception is M v R, above note 30, at [55], which is discussed above.

51 Clarke v R, above note 5, at [4].

52 Clarke v R, above note 5, at [4].

53 S v R, above note 44, at [9].

54 S v R, above note 44, at [7]-[8].

55 S v R, above note 44, at [9].


VI. CONCLUSION

When an accused is asked why a complainant might have lied in their complaint there is always a risk that a jury might view this as shifting the burden of proof from the Crown to the accused. It is, however, a legitimate question to ask. The circumstances in which a Judge might need to provide a specific direction to the jury to address this risk has arisen in several Court of Appeal cases in the past two years, and has now had a brief discussion in the Supreme Court. While the need for a specific direction will clearly depend on the context in each case, some common and helpful factors have emerged through the Court of Appeal cases, which will assist the Judge and both counsel to manage the risk.


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