Debra Wilson “Case Note: Specific Directions On Motivations To Lie: Clarke V The Queen” [2016] NZCLR 78

Abstract

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.