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4.4 - Prosecution Witness's Motive to Lie

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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. This information 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:
  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 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. While the Jury Directions Act 2015 s44L applies to any prosecution witness, in practice, the issue is most often raised in relation to the complainant.

    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) 20 VR 55).
  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) 20 VR 55).
  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) 20 VR 55).
  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:
  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 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).
  35. Where police gave the accused an opportunity, in the record of interview, to suggest a motive to lie, the admission of the record of interview into evidence would not automatically require a Palmer direction to be given (R v Arundell [1999] 2 VR 228). It may, however, be appropriate to excise the parts of the record of interview which relate to the complainant’s motive to lie (Graham v R (1998) 195 CLR 606).

    Content of the direction

  36. The content of the direction on a prosecution witness’ motive to lie is specified in Jury Directions Act 2015 s44L(2), as amended in 2017. It substantially modifies the common law direction, and will be the same regardless of whether or not the accused has directly alleged that the complainant had a specific motive to lie.
  37. The prescribed direction requires the judge to explain:

    Abolition of common law and prohibited directions

  38. Jury Directions Act 2015 s44M, as amended in 2017, states:

    1) Except as provided by this Division, a trial judge is not required or permitted to direct the jury on the issue of whether a witness for the prosecution has a motive to lie.

    2) Any rule of common law to the contrary of subsection (1) is abolished.

    Notes

    1 Subsection (2) abolishes directions based on Palmer v The Queen [1998] HCA 2; 1993 CLR 1.

    2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

  39. Like many Jury Directions Act 2015 provisions, this abolishes the relevant common law and makes the statutory provisions the sole source of obligation to direct on this topic. However, most equivalent provisions in the Jury Directions Act 2015 do not include the words “or permitted” (see Jury Directions Act 2015 ss24, 30, 34, 37, 44, 44E, 54, 62. But c.f. Jury Directions Act 2015 ss40, 44G, 44M, 64D).
  40. At common law, directions on motive to lie included:
  41. In Jury Directions: A Jury-Centric Approach Part 2, the Department of Justice identified the following problems with common law directions on motive to lie which the 2017 amendments were designed to address:

    The content of the [common law] directions may further reinforce the assumption that complainants frequently lie about sexual assault. Although the accused is often responsible for raising the complainant’s motive to lie in the first place, the directions are designed to ensure that there is no disadvantage to the accused, even if he or she raises a ‘spurious allegation of fabrication’. Even if the complainant can refute the allegation of motive to lie this does not operate to his or her benefit.

    In particular, the problematic Palmer direction provides that if the jury rejects the alleged motive of the witness to lie (for example, because the jury accepts the evidence given by the witness in rebuttal of the allegation raised by defence counsel) or decides that the witness did not have a motive to lie, this cannot enhance the credibility of the witness. Such a direction is unfair to the witness and unfairly advantageous to the accused. It suggests to the jury that even if it rejects the alleged motive to lie, the complainant should be regarded with suspicion. It may also suggest to the jury that a complainant has hidden motives.

    Also, the directions limit how the jury may use the absence of a motive to lie. For example, the jury may be told that if it rejects the defence’s assertion of a motive to lie and accepts the prosecution submission, this cannot be relied on to show that the complainant is telling the truth or to enhance the credibility of the complainant’s evidence. Likewise, if the prosecution raises the motive to lie, the jury may be told that it should not speculate on motives that the complainant might have for lying. Research shows that limiting directions of this nature are often ineffective. There is a risk that they may backfire and have the opposite effect intended, leading jurors to speculate.

    Finally, the number of matters that need to be covered in the directions makes appeals and retrials on the adequacy of directions more likely. The length and complexity of these directions also makes them more difficult for jurors to understand and apply (at 16-17).

  42. The Department’s report further explains the purpose of ss44L and 44M as follows:

    To clarify and simplify this area of the law, and to ensure that directions are fair to both the accused and the complainant (or witness), the Bill will set out what trial judges must include in a direction. These requirements are much shorter and simpler than the common law directions. The Bill will also provide that the trial judge must not otherwise direct on the issue of whether a prosecution witness has a motive to lie. This will abolish the Palmer direction and leave it to the jury to decide how motive to lie (or lack of such a motive) affects the witness’s credibility, as is appropriate (at 17).

  43. These passages indicate that s 44L should be viewed as a complete statement of what the judge needs to tell the jury about motive to lie and that features of the common law directions should not be read into the section.

    Section 44L and unfavourable prosecution witnesses

  44. As explained above, s44L only explicitly allows the defence to request the direction. Where the prosecution believes the direction should be given, the prosecution must persuade the judge to exercise the discretion to give a direction under s16 on the basis that there are substantial and compelling reasons for giving the direction.
  45. One scenario which may cause difficulties is where the prosecution cross-examines a witness under Evidence Act 2008 s38 on the basis that the witness gave evidence that is not favourable to the prosecution. See also Unfavourable Witnesses
  46. By its terms, Jury Directions Act 2015 s44L specifies the content of any direction where “the issue of whether a witness for the prosecution has a motive to lie is raised during a trial”. By s44M, a trial judge is not “required or permitted” to direct the jury on this issue other than as provided by Division 10 of Part 4 (ss44L and 44M).
  47. Where the prosecution cross-examines its own witness and suggests that the witness has a motive to lie (such as for loyalty to the accused, or out of fear of the accused), it is possible that the directions in s44L(2) (that it is the prosecution’s obligation to prove guilt and that the accused does not have to prove that the witness had a motive to lie) do not engage with the real issues in the case.
  48. Trial judges will need to consider whether:
    1. Division 10 of Part 4 can be read down to permit a judicial direction about the relevance of the motive identified by the prosecution and how it interacts with the burden and standard of proof; or
    2. Division 10 of Part 4 prohibits any other directions about a prosecution witness’ motive to lie, and so no relevant direction is possible. In that case, the judge will remain able to remind the jury of the evidence and arguments of the parties (Jury Directions Act 2015 ss65, 66), and may make a comment about how the prosecution arguments interact with the burden and standard of proof.

Last updated: 2 October 2017

In This Section

4.4.1 - Charge: Motive to lie

4.4.2 - Charge: No motive to lie

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings