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Buchwald v R

Buchwald v R

Case [2011] VSCA 445 20 December 2011

Breach of Rule in Browne v Dunn

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0829
JULIAN MATHIAS BUCHWALD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE, REDLICH and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2011
DATE OF JUDGMENT:	20 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 445
JUDGMENT APPEALED FROM:	R v Buchwald (Unreported, County Court of Victoria, Judge Smallwood, 18 September and 21 October 2009)

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CRIMINAL LAW – Conviction – Kidnapping – Whether directions impermissibly expanded Crown case – Whether judge impermissibly intervened in trial process by questioning accused – Whether directions about confessions adequate – Whether breach of rule in Browne v Dunn – Whether rule applies where witness has not given evidence inconsistent with cross examiner’s instructions – Truth of confessions – Explanation of detail in confessions – Inadequate directions as to permissible pathway of reasoning where breach of rule – Directions leaving recent invention to jury not justified in circumstances – No substantial miscarriage of justice – Overwhelming prosecution case – Proviso – Leave refused.

CRIMINAL LAW – Sentence – Seven years and six months’ imprisonment for kidnapping – Six months’ imprisonment for false report – Total effective sentence of seven years and nine months’ imprisonment with non-parole period of five years and three months – Subsequent six month sentence for failure to answer bail wholly cumulated – No remorse – All individual sentences, orders for cumulation, total effective sentence and non-parole period within range – No double punishment – Evidence as to protective custody – No basis to reopen sentencing discretion – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I D Hill QC with Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft reasons of Hansen JA. I agree with his Honour, for the reasons he gives, that leave to appeal against conviction and sentence should be refused.

REDLICH JA

I have had the benefit of reading in draft the reasons of Hansen JA and agree that the applications for leave to appeal against conviction and sentence should be refused. I would add only these observations.

Ground 2

Complaint is made under cover of this ground that the trial judge impermissibly intervened in the trial process by cross-examining the applicant in a manner adverse to him and by giving an unbalanced and less than impartial charge to the jury.

Following the applicant’s cross-examination and after his counsel had announced that he had no re-examination, his Honour stated that he wished to ‘clarify a couple of things’. Hansen JA has set out the passages that were the subject of complaint. The trial judge did phrase most of his questions so as to indicate that he was seeking an explanation. The applicant submitted that on proper analysis, little of the questioning could have been for the purpose of clarification as the applicant had already made his position clear in…

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.

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Details

AGLC: Buchwald v The Queen [2011] VSCA 445
Case: [2011] VSCA 445
Decision Date: 20 December 2011

CaseChat Overview and Summary

Buchwald appealed against his conviction and sentence for kidnapping and related offences. The appeal concerned various aspects of the trial and sentencing process. The High Court of Australia was called upon to determine whether the trial judge had improperly expanded the Crown's case, whether the judge had impermissibly intervened in the trial process, and if the directions regarding confessions were adequate. Additionally, the court had to consider whether the rule in Browne v Dunn was breached, whether the judge's directions about the permissible pathway of reasoning were adequate, and if the trial judge's decision to leave the issue of recent invention to the jury was justified.

The court found that while there were procedural errors, they did not result in a substantial miscarriage of justice. The trial judge had not impermissibly expanded the Crown's case, nor had the judge improperly intervened in the trial process by questioning the accused. The court did, however, find that the judge's directions about confessions were inadequate, as they did not sufficiently explain the permissible pathway of reasoning where the rule in Browne v Dunn was breached. Furthermore, leaving the issue of recent invention to the jury was not justified in the circumstances. Despite these errors, the court held that there was no substantial miscarriage of justice because the prosecution's case was overwhelming. The court also found that the sentence was within the appropriate range and there was no double punishment, nor was there a need to reopen the sentencing discretion.

The High Court dismissed Buchwald's appeal against his conviction and sentence, with the leave to appeal being refused. The conviction and sentence stood as determined by the lower court, with the total effective sentence being seven years and nine months’ imprisonment, with a non-parole period of five years and three months. The six-month sentence for failure to answer bail was wholly cumulated with the other sentences. The court held that there was no basis to order a reopening of the sentencing discretion, and no double punishment was identified in the sentencing process.

Orders