Curran v R [2020] NSWCCA 171

Curran v R [2020] NSWCCA 171 · Read the judgment on AustLII

Catchwords: Prosecutorial conduct – suggesting an accused’s motive to lie – reversal of the onus

In this decision the Court of Criminal Appeal (‘CCA’) has harshly criticised comments made by a prosecutor which suggested the accused had a motive to lie in order to be acquitted, and a comment that he might have a broader tendency than that actually pleaded in the tendency notice.

The applicant may be familiar to many readers for being a Local Court Magistrate, although the offending conduct happened long before his appointment: The allegations occurred in the early 80’s, when the applicant was in his early 30’s and the complainant between 13 and 16. The applicant was a family friend of the complainant’s and their relationship was similar to that of father and son, or uncle and nephew. The applicant took the complainant on trips to Europe, and regularly on a friend’s yacht. The complainant often stayed at the applicant’s house the night before they would go out on the yacht. The complainant said they got into a routine of sleeping naked, and of the applicant massaging the complainant’s naked body in the morning. There were allegations of oral sex and mutual masturbation on the boating trips, amongst other conduct.

The applicant was convicted of seven counts and acquitted of two. He appealed upon a ground relating to the Crown Prosecutors conduct; and a ground complaining that the verdicts were unreasonable and cannot be supported having regard to the evidence (not discussed here).

The complaints about the Crown’s Prosecutor’s conduct fell into two categories. The first was a complaint that the Crown Prosecutor had made two statements in closing to the jury pointing to the accused’s motive to lie. The applicant gave evidence in his own defence denying the allegations. The prosecutor made submissions about asserted problems with the version the applicant had given, including asking, rhetorically, ‘Why would [the accused] lie? Well, I’m not asking, it’s not up to you to tell why he lied, this is a case where the prosecution must prove their case.’ The prosecutor subsequently described the asserted issues with the applicant’s case as a ‘chink in the version given by this accused and of course he has plenty of motive to do that, you might think given the allegations and his position in life.’ At trial, senior counsel submitted that the submissions amounted to a reversal of the onus of proof, and an impermissible comment suggesting that the accused had a motive to lie given his interest in seeing himself acquitted. He asked that there be corrective directions – but not immediately, since that would only highlight the problems. The trial judge duly directed the jury to the effect that if the jury found that the accused had lied it could not be used against him to find him guilty (that decision hinging on a positive finding that the complainant’s version was correct), directing them to disregard the Crown’s remarks that the accused had a motive to lie, and directing them that the applicant’s evidence is treated the same as the evidence of any other witness.

The CCA (Basten JA, with whom R A Hulme and Hamill JJ agreed, each with some additional remarks) synthesised earlier authority from the High Court and the CCA to come to the conclusion that the comments should not have been made. The interest of an accused in securing an acquittal is self-evident, but where the judge comments on that fact it will often give rise to a miscarriage. On the other hand, the same cannot be said of a passing reference by a prosecutor – although it is preferable that the comment is not made. The comment places the trial judge in a difficult position: if it passes without reference, the jury may give weight to it, but in seeking to remove the inappropriate suggestion there is a risk that the judge will reinforce the prejudice. In this case, the trial judge and counsel were alive to the problems, and it did not result in a miscarriage (at [119]).

Suggesting that a jury ask why an accused might lie is inappropriate for the same reasons. Not only does it invite inappropriate speculation, but it invites an assumption that a statement is a lie unless the motive to lie can be rejected (at [120]). Given the context; the fact that the statements were made by the prosecutor and not the judge, and given the careful and clear directions of the trial judge; and the fact that there was no application to discharge the jury, there were ‘powerful considerations’ for concluding that no miscarriage of justice occurred (at [122]).

The second complaint about the prosecutor’s conduct related to an unfounded tendency remark in the closing address. The Crown had pleaded a tendency of the accused to have a sexual interest in the complainant. There had also been a body of evidence led by the accused in relation to his good character. The prosecutor sought to address that evidence in closing, submitting that even people with good character commit offences, and continued ‘What the Crown says is here is a man who has otherwise very good qualities, who has a weakness and a weakness is for this particular boy, perhaps boys in general.’ (emphasis added). Again, defence sought a corrective direction, but not until the judge’s summing up. The CCA accepted that the words ‘perhaps boys in general’ should not have been spoken but (at least in the primary judgment of Basten JA) considered it a ‘passing and muted reference’. The corrective direction was clear and precise, and needed to be seen against the evidence of good character. Understood in context, the CCA concluded, the comment could not have caused the suggested harm and there was no miscarriage of justice on this account (at [127]).

That said, R A Hulme J considered it ‘startling that senior counsel who appeared for the Crown at trial could make such fundamentally flawed submissions to the jury’ (at [130]), and Hamill J considered the errors to have been ‘egregious’ (at [145]).

For reasons not outlined in this summary, the CCA partially upheld the appeal in relation to other grounds, entered verdicts of acquittal on two counts, but held that the remaining four were well-founded. The applicant was resentenced to 16 months with an NPP of 9 months and released immediately to parole.