Brett Audsley v The Queen - [2014] VSCA 321

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0253

BRETT AUDSLEY	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 October 2014
DATE OF ORDERS:	9 October 2014
DATE OF JUDGMENT:	8 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 321
JUDGMENT APPEALED FROM:	R v Audsley (Unreported, County Court of Victoria, Judge Cohen, 1 November 2013)

---

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary, armed robbery, recklessly causing serious injury and assault – Evidence – Credibility of witness – Expert evidence – Evidence of neuropsychologist as to effect of drug use on reliability of memory – Whether wrongly excluded – Crown concession of error – Appeal allowed – Evidence Act 2008, ss 101A, 108C, 192.

EVIDENCE – Credibility rule – Exception – Expert evidence concerning credibility of witness – Effect of drug use on reliability of memory – Whether admissible – Discretion to exclude – Whether wrongly excluded – Evidence Act 2008 ss 101A, 108C, 192.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr I D Hill QC with Mr G J Traczyk	Simon Parsons & Co
For the Crown	Mr C B Boyce SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
PRIEST JA:

Summary

On 10 January 2009, three male intruders entered a home in Clyde. There followed a terrifying episode in which the occupants were robbed and subjected to violence. One member of the household was struck with a hammer, causing his skull to fracture.

There was no dispute at trial that the offences had occurred. The appellant disputed, however, that he was one of the three offenders. The jury convicted him by majority verdicts on four charges — aggravated burglary (charge 1); common assault (charge 2); recklessly causing serious injury (charge 3);[1] and armed robbery (charge 5).[2]
[1]Charge 4 was an alternative to charge 3, intentionally causing serious injury, of which the appellant was acquitted by unanimous verdict.
[2]On 2 December 2013, the trial judge sentenced the appellant to a total effective sentence of seven years and three months’ imprisonment, upon which a non-parole period of five years was fixed.

The jury were unable to agree on verdicts with respect to the appellant’s co-accused, Jason Parks (‘Parks’), who was tried on the same charges as the appellant. A third offender, Michael Turner (‘Turner’), had been granted an indemnity against prosecution, and was one of the principal prosecution witnesses against the appellant and Parks at their trial.

This appeal raises two points of significance. The first concerns s 108C of the Evidence Act 2008 (‘the Act’), which enables expert evidence to be led for the purposes of assisting in the assessment of the credibility of a particular witness. As will appear, the trial judge refused to grant leave to the defence to adduce expert evidence directed at the credibility of the prosecution’s chief witness. On appeal, the Crown conceded that the judge had erred in refusing leave. We…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brett Audsley v The Queen

Details

AGLC: Brett Audsley v The Queen [2014] VSCA 321
Case: [2014] VSCA 321
Decision Date: 8 December 2014

CaseChat Overview and Summary

Brett Audsley, the appellant, appealed against his conviction for aggravated burglary, armed robbery, recklessly causing serious injury, and assault. The case was heard in the High Court of Australia. The appellant challenged his conviction, arguing that the trial judge had wrongly excluded evidence from a neuropsychologist who could have testified about the impact of drug use on the reliability of the memory of a key witness. The Crown conceded that the evidence should have been admitted.

The primary legal issues in this case were whether the trial judge had wrongly excluded expert evidence concerning the credibility of a witness and whether the exclusion of this evidence constituted a miscarriage of justice. The appellant argued that the neuropsychologist's evidence was relevant and should have been admitted under the provisions of the Evidence Act 2008. The Crown conceded that the evidence should have been admitted and that the appellant's conviction should be quashed.

The court held that the trial judge had erred in excluding the neuropsychologist's evidence. The court noted that the Evidence Act 2008 provided for the admission of expert evidence concerning the credibility of a witness in certain circumstances. The court found that the neuropsychologist's evidence was relevant and should have been admitted. The court further held that the exclusion of this evidence constituted a miscarriage of justice and allowed the appeal. The conviction was quashed, and the matter was remitted to the Court of Appeal for further consideration.

The final orders of the court were that the appeal was allowed, the conviction was quashed, and the matter was remitted to the Court of Appeal for further consideration. The court emphasised that the exclusion of relevant expert evidence concerning the credibility of a witness could constitute a miscarriage of justice, and that trial judges must be vigilant in ensuring that such evidence is not wrongly excluded.

Orders