Drash v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0882
S APCR 2011 0010

EDWARD DROVER DRASH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and HARPER JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 February 2012
DATE OF JUDGMENT	19 March 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 33
JUDGMENT APPEALED FROM	R v Edward Drash (Unreported, County Court of Victoria, Judge Douglas, 9 September 2009)

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CRIMINAL LAW — Application for leave to appeal against conviction — Sexual penetration with child under 16 years under care, supervision and authority — Indecent act with or in the presence child under 16 years — Whether substantial miscarriage of justice —Breach of rule in Browne v Dunn — Jury directions — Whether trial miscarried due to prosecutor’s reference to complainant’s and accused’s motive to lie — Leave granted — Appeal allowed — Matter remitted for re-trial.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Victoria Legal Aid
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HARPER JA:
HOLLINGWORTH AJA:

The applicant, Edward Drover Drash (‘Drash’), was convicted by a County Court jury of eight counts (counts 1, 4, 5, 8, 9, 12, 13 and 15) of sexual penetration with MQ, a child under the age of 16 who was under his care, supervision and authority (the ‘sexual penetration offences’) and eight counts (counts 2, 3, 6, 7, 10, 11, 14 and 16) of committing an indecent act with or in the presence of MQ, a child under the age of 16 (the ‘indecent act offences’).

Drash, who was aged 23 at the time of the offending, was a friend of MQ’s grandmother, PC, who had looked after Drash and his sister when he was a teenager, after his mother became ill and went to live in a nursing home. MQ went to live with PC after his mother had abandoned him. The offences were allegedly committed over a two week period during the 2004-2005 school holidays, while Drash was caring for MQ at Drash’s father’s property in Wedderburn, Victoria. At that time, MQ was 10 years and four months old.

The maximum penalties for the sexual penetration offences and the indecent act offences were, when the offences were committed, 15 years and 10 years’ imprisonment respectively.[1]
[1]Crimes Act 1958, ss 45 and 47.

On 9 September 2009, the learned trial judge sentenced Drash, who was then aged 27, to a total effective sentence of 12 years and 4 months’ imprisonment with a non-parole period of 10 years.

On 2 November 2009, Drash filed an application for an extension of time within which to appeal against sentence. This application was granted by Associate Justice Lansdowne on 29 March 2010.

On 14 January 2011, Drash applied for an extension of time to appeal against his conviction. This application was refused by the Registrar, and Drash now elects to have that application determined by a bench of three judges. Drash also seeks leave to appeal against his sentence.

The Crown and defence cases

The alleged offences came to light on 21 February 2005, when PC asked MQ why he was disturbed and had been running away from home. Her evidence was that he had told her that Drash was ‘doing rude things to me, putting his willy wally in my mouth’. She had then contacted the police and the Department of Human Services (‘DHS’).

The Crown alleged that MQ had been sexually abused on five separate occasions while he was at Wedderburn.

Counts 1 to 4 took place when MQ was playing on a computer in Drash’s bedroom. It was alleged that Drash fellated MQ (count 1), made MQ fellate him to the point of ejaculation (count 4), licked MQ’s anus (count 2), and fondled his own penis (count 3).

Counts 5 to 8 took place in a ‘cabin’ or horse box, after Drash took MQ to feed horses on the Wedderburn property. On that occasion, there were two acts of sexual penetration of the same kind as occurred in the first incident (counts 5 and 8) and two indecent act offences, again of the same kind as occurred on the first occasion (counts 6 and 7).

Counts 9 to 12 were said to have taken place some days later in the cabin or horse box. Again there were two acts of sexual penetration (counts 9 and 12) and two indecent acts of the same kind as alleged in the earlier incidents (counts 10 and 11). After the second act of fellatio, Drash put semen on MQ’s hand, and put his hand into his mouth.

Counts 13 to 16 were committed in Drash’s car when he drove MQ into the bush. On the first occasion, Drash told MQ to strip naked, which he did. Drash also took his clothes off, and one act of sexual penetration (count 13) and one indecent act (count 14) occurred.

Counts 15 (fellatio) and 16 (indecent act) occurred the second time that Drash drove MQ into the bush.

At the trial, the Crown led evidence of a number of uncharged acts against MQ, which occurred in 2004 when he spent his school holidays with Drash in Dubbo, New South Wales. The counts for which Drash was prosecuted were said to be similar in nature to the uncharged acts which MQ said had occurred in Dubbo in the previous year. MQ’s evidence was that he was threatened with assault by Drash if he complained of the Dubbo assaults.

The judge held that the uncharged acts were admissible because they put the charged acts in context by explaining the reasons for MQ’s failure to complain, and why he was disturbed after he returned from Dubbo. They were also said to explain Drash’s confidence that MQ would not tell anyone about the offending.[2]
[2]The judge gave the jury an appropriate warning about the use they could make of this evidence and there was no ground of appeal relating to the admissibility of the evidence.

Drash denied that he had sexually assaulted MQ either in Dubbo or at Wedderburn. He gave evidence at the trial challenging a number of the details of the alleged offences.

Crown evidence
The VATE interviews

Following MQ’s complaint to his grandmother on 21 February 2005, he was interviewed by Senior Constable Harrop on 22 February 2005, in the presence of Patricia Steele from the DHS and a 17 minute VATE recording was made (‘the 2005 VATE’). In the 2005 VATE, MQ complained that Drash had fellated him and licked his anus when he stayed with him in Dubbo in the school holidays.

Senior Constable Harrop asked MQ if there was anything else he wanted to tell her and he said ‘[t]hat’s it’. He was not asked any questions about events at Wedderburn and when he said he wanted to go to the toilet, the VATE interview was terminated. The 2005 VATE tape was forwarded to the Dubbo police, but they did not investigate the complaints.

On 22 March 2005, PC made a written statement to the police, which included reference to MQ’s complaints about incidents at Wedderburn.

Following an inquiry from DHS about Drash in 2007, Sergeant Cornford, who was then stationed in Bendigo conducted a second VATE interview with MQ on 18 June 2007 (‘the 2007 VATE’). By then MQ was 12 years old. In the 2007 VATE, MQ said that Drash had done ’rude stuff’ to him at Wedderburn. He referred to acts of sexual penetration and indecent assault which occurred after he had been allowed to use the computer at the house, when Drash said he was going to feed the animals and took him to ‘the cabin’, and on two occasions when he was driven into the bush.

MQ said the following about the acts which occurred in the car.

When it would happen in the car, and it – being a station wagon, where did it happen, in the back, or in the middle seat or - - -?
Middle seat.
Like, you know, just behind the driver and all that was it or - - - ?
Yeah. Except he would put the seat back.
So it was, like, flat all the way across was it?
Yeah.

He said the cabin contained ‘three little places for beds’, which he then described as mattresses. It also contained a cupboard to put clothes in and ‘stuff to ride horses and … harnesses’. It was a few metres away from the house.

The Special Hearings

A special hearing under s 41G of the Evidence Act 1958 was conducted by Judge Duckett in November 2007, when MQ was 13. MQ confirmed the contents of the 2007 VATE interview. In cross-examination, he said that the computer he was playing on at the time of the first incident was in Drash’s bedroom.

He was then asked questions about the incidents covered by counts 9 to 12, which were said to have occurred in the ‘cabin’ on the property. He described the cabin as ‘wooden’, and said that it had windows and was about two metres away from the house. It contained two rooms. One room had two bunks and a bed in it, as well as saddles and harnesses. He said that on the second occasion he went to the cabin, he was shown a magazine called ‘Gay Dude’. At that hearing, it was not put to him that there was no structure answering the description of the cabin on the property.

MQ was cross-examined about the first occasion on which sexual acts occurred after Drash drove his car into the bush as follows.

In your tape you said you got into the - I think you said the middle seat of the station wagon. That's the rear seat, is it, behind the driver?---And the passenger, yes.
You said that that was folded down; is that right?---Yes.
Was that folded down before you got there or - - -?---No.
He folded it down while you were there?---Yes.
When you took your clothes off, did you get out of the car to do that?---No.
Did he get out of the car, at all?---No.
So you’ve just scrambled over to the back seat, have you?---Yes. Yes.
In doing that, he’s put the back – I imagine…the back seat down? ---Yes.

On the second occasion in the car, MQ said that he had stayed in the passenger seat and Drash had knelt down on the floor. There were two separate seats in the front of the car and Drash had laid the passenger seat back.

During the trial, the trial judge permitted the recall of MQ and a second special hearing was held on 13 August 2009.

MQ was cross‑examined about his earlier statement that the cabin was two or three metres from the house and he said that this was incorrect and it was about 20 or 30 metres away. He was asked to view photographs of the property which Drash’s father had taken of the Wedderburn property and about the absence of any cabin or bungalow in those photographs. It was put to him that there was no bungalow on the property and he said that there was a bungalow there when the offences occurred, but he did not know where it was now.

MQ repeated his earlier statement that the bungalow was wooden, that it contained two rooms and that there was horse equipment in it. In re‑examination, he was asked if he had fed the horses and he said that Drash was involved in ‘showing me how to feed them’.

As we discuss below, Sergeant Peiffer of the Wedderburn police took photographs of the property in early August 2009 and gave evidence about its appearance at that time. As a consequence, MQ was recalled and gave further evidence at a special hearing on 18 August 2009.

In examination in chief, MQ was shown a photograph taken by Sergeant Peiffer of the generator shed and was asked about a structure behind the generator shed which appeared to have windows in it and he said ‘[t]hat was the place where I got abused’ and that it ‘does look like a bungalow’. He said he did not recall whether it was in the same place at the time of the alleged incidents.

He was then cross-examined by defence counsel about his statement that there was a wooden cabin on the property.

But it’s still a wooden cabin, isn’t it?---Yes.
Inside that cabin you said there were beds; do you recall saying that?---Yes.
There were several bunk beds and a single bed?---Yes.
Do you recall saying that and that’s right, is it?---Yes.
You also said in that cabin that there was a clock there; do you recall saying that at the special hearing?---Yes.
You do and in fact you said that there was a clock on the wall; do you recall saying that?---Yes.
Now it’s a wooden cabin with bunks in it and a single bed and a clock on the wall?---Yes.
Is that right?---Yes.
If you have a look at photograph 5. That thing behind the generator shed is not wooden, is it? Photograph 5, the one that Mr Jones was talking about with the open back. See it there?---Yes.
It’s not made of wood, is it?---It looks like it is wood.
It looks like wood to you, does it?---Yes.
You say in that when you went in it did you go in through that back door?---No, there was a door that we came in through.
All right and you say it was in that position?---Yes.
Or was it somewhere else?---It was in that position.
That was in 2005?---Yes.
If you look at the next photograph, photograph 6, you see a big white truck?‑‑‑Yes.
I say to you that that - horse box - that item that you said was the cabin, I say to you that in 2005 that object was on the back of that white truck; what would you say?---I say I wouldn’t remember.
So if you don’t remember if it was on the truck, you certainly - - -
…
I’m suggesting to you that that horse box – I’ll call it the horse box behind the generator shed - at the time you were staying with Mr Drash was in fact not behind the generator shed, but on the back of the truck; do you recall that?---No.
You still say it was where it is in that photograph?---Yes.
You still say it’s made of wood?---Yes.
When you were in there, were the beds near the back where the open door is?---No.
Where were the beds?---They were in like near the other room, like two rooms joined.
There’s a door we can see between the two trees. There seems to be a door inside; can you see that?---Yes.
Do you say that’s the door you entered?---Yes.

In re-examination, he said that the structure was timber inside.

Evidence relating to the failure to refer to Wedderburn allegations in the 2005 VATE

PC gave evidence that MQ had stayed with Drash in Dubbo in the August to September school holidays in 2004 and at Wedderburn after Christmas. In cross-examination, she rejected the suggestion that MQ had been running away from school prior to him going to Dubbo, but she acknowledged that he had been disturbed when he was staying with her because his mother had abandoned him.

Ms Steele, the DHS officer who was present when MQ was interviewed on 22 February 2005, gave evidence that prior to making the 2005 VATE, MQ had said that Drash had performed sexual acts on him in Dubbo in the school holidays in 2004 and in Wedderburn in the January 2004 to 2005 school holidays.

Senior Constable Harrop also said that in the pre-recording interview, MQ had referred to sexual abuse in both Dubbo and Wedderburn, although she had not asked him about the allegations of sexual abuse in Wedderburn when she made the VATE recording.

Evidence of Sergeant Peiffer

Sergeant Peiffer was called to give evidence for the Crown about the photographs he had taken showing a structure behind the generator shed. He said he would describe this as ‘a slip on unit that you would put on…a truck, like a campervan thing that you would put onto the back of a truck’. In cross‑examination, he was asked how long he thought that the slip-on unit had been there on the property and he said that ‘I reckon it’s been there for years and years and years.…I can’t say that it arrived on such and such a day’. He also said that the exterior was ‘[l]ike a camper van kind of thing’ and agreed that it was a metal frame with galvanised iron cladding.

In relation to the inside of the structure, he said that it looked ‘a bit brown’ and that ‘it could well be a timber lining like that…false masonitey type lining’.

In re-examination, he said that the structure had two windows and there appeared to be a door in the side of it.

Drash’s witnesses

Both Drash and his father, Francis Allan Drash, gave evidence at the trial.

Francis Drash

In his evidence in chief, Francis Drash was shown a photograph which he said was of a room that was previously a spare bedroom but was now the office. He said that there was a computer in that room. He viewed the photographs he had taken of the property in April 2009 and he said that there had been no relevant changes to the buildings after 2005. There was no cabin or bungalow at the property and no outbuilding at all that contained beds or bunks. He was shown a photograph of a structure beyond the generator shed which he said was a horse box which was made of steel. It had an old wardrobe in it and contained saddles and horse gear. In Christmas 2004, the horse box was on the back of a truck.

In cross-examination, it was put to him that there was timber inside the box, which he denied. He said he had only recently found out about the allegations that offences had occurred in a cabin and had told his son’s solicitors there was no wooden cabin on the property. He denied that he had deliberately avoided photographing the horse box and said that he had not photographed it because ‘[i]t is a steel box and I was trying to show that there was no wooden cabin on there’. He said that the horse box had been removed from the truck on which it was placed about two years previously. The truck on which the horse box was placed was never registered for use on the road, but he had driven it twice with a permit.

He was also asked whether the horses were handfed during January 2004 to 2005 and he said that this did not occur and that MQ’s allegation that his son used to take him out when he fed the horses was incorrect. In re-examination, he was asked whether there was a clock in the separate tack room or in the tack area in the horse box and he said there was not.

Edward Drash

Drash denied that he had abused MQ and said that he was ‘never left alone with [MQ] for any particular length of time, because I was mainly trying to spend time with my partner’. In his evidence in chief, he said that:

· there had never been any cabin on the property and there was no outbuilding on the property made of wood or any outbuilding containing bunks;

· he never took MQ to feed any animals on the farm;

· he did not drive his vehicle through the state forest surrounding the property;

· it was not possible to fold back the rear seat of the car because it had been welded before he had bought the vehicle; and

· there were bucket seats in the front of the car and the passenger seat could be laid back, but did not lie back fully. It would be impossible for a person to kneel on the floor of the car if someone was sitting in the passenger seat.

In cross-examination, he was asked whether he had read the depositions and witness statements and he said he had not, although he could possibly have been given the hand-up brief. He was asked how he had known what the allegations against him were and he said ‘[PC] had brought the Dubbo incident to my attention by ringing and explaining it to me, and explained that the whole thing had been dropped because there was no evidence’. He initially said that PC had telephoned him while he was at his father’s house. He later said that PC had called his partner and told her about the dropping of the Dubbo charges.

In cross-examination, he was asked about the failure of his counsel to put to PC that she had phoned him and told him that the Dubbo charges had been dropped. He was also cross-examined about his failure to put to MQ:

· that there was no computer at the house in 2005;

· (at the first special hearing) that there was no wooden cabin on the property;

· that there was never any hand feeding of the horses; and

·
that the rear car seat could not be laid down because it was welded

(together, ‘the five matters’).

Drash said that he had given instructions to his counsel with respect to three of the five matters. In the case of the computer, his evidence was as follows:

In your house - at your father’s house in January of 2005, was there a computer at that place?---No, there wasn’t.

That’s the first time we’ve heard about this, isn’t it?---Well, I’m not sure if it’s the first time you’ve - - -
Your father didn’t say anything about it, did he?---Well, he wasn’t asked about that.
That’s what I mean, he didn’t say anything about it, did he?
---There’s been no computer at my father’s property until the last couple of years when he actually purchased one.
What I’m asking you about is whether or not in January of 2005 there was a computer there?---And I already answered that, no there wasn’t.
Yes, you said no and what I’m putting to you is that that’s the first time it’s ever been suggested that there was no computer at the place, it wasn’t put to [MQ], was it?---Well, I don’t think so, no.
The first time we hear about there being no computer there is in the cross‑examination of you here, today?---Well, I don’t think anyone’s ever been asked it.
You’d know it’s important, wouldn’t you?---Well, I have informed my barrister and lawyer on that one, yes.

In the case of the feeding of the horses, the following cross-examination occurred:

The first time we ever heard about the horses not being fed was from your father, wasn’t it?---I believe so.
And as I understand it, that was not put to [MQ] on any occasion, that he did not go with you to feed the horses?---And what would you like me to say to that? Yeah, it wasn’t put to me but I did put that to barrister, my lawyer.

When questioned about his assertion about the wooden cabin, the following exchange occurred between Drash and the prosecutor:

Look, come on, you instruct your solicitors. Nothing was put to [MQ] about there not being a place that would fit the description that he gave, was there?‑--I told my solicitor and my barrister - - -
Can you answer the question?--- - - - that there was no such cabin.
Can you answer the question?---Whether they wish to ask the question or not isn’t up to me, it is up to them.
I see. Didn’t you tap them on the shoulder and say, ‘hey look, you’ve forgotten to put that’?---No, I didn’t.
Why not?---Because I didn’t think to. I wasn’t able to tap them on the shoulder.
Couldn’t you have got their - you were sitting behind them?
---For the special hearing? No, I wasn’t.
No, for the committal?---For the committal, yeah.
Didn’t come up at the committal?---No.
No?---We only just started discussing it with my lawyer.

Drash accepted that the first time that he had asserted that the rear car seat could not be put back because it was welded was when he gave that evidence at the trial. He did not claim to have instructed his solicitor that this was the case.

Proposed grounds of appeal against conviction

One of the matters which must be taken into account in considering whether the extension of time should be granted is the likelihood that Drash will succeed on appeal.[3] We therefore deal first with the proposed grounds of appeal against conviction.
[3]R v Davis (2003) 6 VR 538, 539.

Ground 1

The first proposed ground of appeal is that:

The trial of the applicant miscarried as a result of:
(a) the learned prosecutor’s attack on the applicant’s credit arising from alleged breaches of the rule in Browne v Dunn; and
(b) the directions of the learned trial judge as to the rule in Browne v Dunn.

In discussions prior to counsels’ final addresses, the judge raised the question whether she needed to give a Zoneff[4] direction particularising alleged lies. She also told counsel that she was considering whether she would give a Browne v Dunn[5] direction. The relevant discussion was as follows:
[4](2000) 200 CLR 234.
[5](1893) 6 R 67.

HER HONOUR: … the other thing is that - and as I say, I’m just raising this now to air it. If there’s any need or anyone suggests I need to do a direction as to Browne and Dunn because that was raised a few times.
…
HER HONOUR: So if you two want to talk about it.
PROSECUTOR: I was certainly - well, I mean that’s how it’s put.
…
PROSECUTOR: All I was going to tell the jury was that that seriously affects his credit, without going into the rule of - - -
HER HONOUR: It seems to me I have to explain it to them.
PROSECUTOR: Your Honour, perhaps if I officially make application in regard to that. That’s the - - -
HER HONOUR: You don’t necessarily have to.
PROSECUTOR: Feeding the horses. Well, I don’t want to be criticised later on for going in the back door, Your Honour.
HER HONOUR: No, look, the thing is that judges now must give a direction as to Zoneff, and it’s always been the case that juries don’t understand what some people call puttage, Browne and Dunn, and it’s always incumbent on a judge to explain it, always.
…
HER HONOUR: I just wanted to alert you to the fact that I’ll leave the Bench while Mr McCarthy’s setting up and you can - the two of you can talk about it or you can think about exactly how you’re going to put Browne and Dunn … I mean you’ve clearly said - I’ve written one, two, three, four, five matters, which is the computer. It was never suggested to [MQ] there wasn’t a computer. Early on the cabin. At all stages feeding of the horses. The seat being welded and also - I think this is probably in a lesser category, that in relation to [PC], who was asked to find the boy. I don’t know whether that’s - - -
PROSECUTOR: No, no, but there’s another one in relation to [PC] that wasn’t put, and that was what I cross-examined him about yesterday when he said that [PC] had rung him up and said there was nothing going on about Dubbo.
HER HONOUR: Okay, all right. They seem to be the matters, and it’s up to you - I mean you may - - -
DEFENCE COUNSEL: I’m just a bit concerned about the cabin matter, Your Honour, because - I accept the others.
HER HONOUR: Yes, okay.
DEFENCE COUNSEL: But the cabin matter was actually - that’s why the second special hearing was brought on, was because of the - - -
HER HONOUR: But it was put at the first special hearing that it wasn’t mentioned.
DEFENCE COUNSEL: That’s right.
HER HONOUR: To the boy, yes.
DEFENCE COUNSEL : Yes.
HER HONOUR: It was always put on that limited basis by Mr Jones. Yes. No, that was put to your client.

In his final address, the prosecutor sought to attack Drash’s credit by reference to his counsel’s failure to put each of the five matters to appropriate Crown witnesses. The prosecutor stated as follows:

the first time that we hear about not feeding the horses is when the father gives evidence and then when the accused gives evidence, and yet [MQ] had been cross-examined extensively twice and just briefly once and then they’ve never been put to him. And what I submit to you is that you would think that the accused would be presumed to put matters to his counsel and solicitor as to what his version of the facts are, or is, and that you would expect those to be put. But they weren’t put, so here we have a situation whereby the accused is trying to make out that [MQ’s] a liar when he says that these things happened with me when I was alone with him because I was never alone with him.
But hang on, there’s one difficulty. He did go feeding the horses with him, ‘That’s not right.’ And that comes at the last minute and what I submit to you is that that seriously damages his credit as to whether or not you accept what he says or whether or not what he says creates a reasonable doubt in your mind because it’s come out of the blue and of course the suggestion is, save for pulling any punches about it, he’s made it up at the last minute, he’s thrown it in. No feeding the horses at all. His dad’s thrown him the lifeline when he gave evidence.
Now, what about the computer? No computer, because you’ll remember that [MQ] said that the - he was playing on the computer in the bedroom when those incidents that are referred to in Counts 1, 2 and 3 occurred. He was playing on the computer. First time we hear it, the accused says ‘There’s no computer there so [MQ’s] a liar, no computer there at all’. Then [MQ’s] been cross-examined three times and never once was it put to him that there was no computer there. Why wasn’t that put? I’d submit to you there’s only one reason it wasn’t put and that was because the accused hadn’t said anything about it to his counsel otherwise it would have been put, so he made it up as he sat there when I asked him about it. Made it up for what reason? To try and make out [MQ] to be a liar.
Now, what about that nonsense that we heard about how [PC] had rung him up and then at some stage it’s shifted ground, ‘No, it wasn’t me, it was my girlfriend’. So this is when he was being cross-examined… ‘How did you know what the allegations were?’ ‘Because it had been brought to my attention by [PC].’ … How did [PC] bring them to your attention?’ ‘[PC] had brought them - the Dubbo incident - to my attention by ringing and explaining to me and explained that the whole thing had been dropped because there was no evidence.’ … Now, what I want to say about that is that, in my submissions there, is that it is an example of a lie by the accused. It was never put to [PC] when she was being cross-examined. The first time we hear it is when the accused is in the witness box. Out of the blue.
And not only that; what he purports to say in his evidence about what [PC] told him is not factually correct anyway. The matter was just never investigated because of the incompetency, you might think, of the New South Wales police. And the accused, I’d submit to you, has taken advantage of that situation and turned it around to try to get himself into a good position by being able to say ‘Those charges were dropped.’ Well, it’s a lie, they weren’t dropped. He made that up at the last minute. Now, that again, in my submission to you seriously affect his credit because if that was the situation, why wasn’t it put to [PC]?
And the photo. The photos, what I’d submit to you there, if ever you saw a better set-up, in your life, or the best set-up in your life, this is it. Now here you’ve got young [MQ] giving evidence, as best as he can, to recall in 2007, it’s no fault of his, he should have been asked directly about these matters, you might think, back in 2005. But in 2007, when he is being asked about them, he gives a description of things as best he can. And what’s he said about it, is, he said that he described it as a ‘cabin’.
Now, you get to the first hearing, when he’s got his special hearing on the, I think it’s 23 November 2007, nothing’s put about there not being a place that in any way could be the place that he described in his VATE. Not put at all. And then some - quite some time after that, that’s back in 2007, we have some application because we’ve got some photos, and we want to put some other matters. And again, I’m not criticising my learned friend. He’s stuck with the case he’s got.
Now what I’m putting to you is that the accused and his father have obviously got their heads together. And the idea is to try and make out this young boy to be a liar by showing that what he said could not be true…
You have a look at Photograph 4, all right?... Now, in the VATE, it has been clearly stated that apart from other things that were in this room on those two occasions when certain things happened out near the house, when they were going to feed the animals, that the room contained tack. Horse equipment, saddlery, things like that. Isn’t it amazing that where all these photos are taken, that the only place that contains the saddlery doesn’t appear in any of the photos? And you might think that Photograph 4 has been taken in a way that would conceal what’s behind the generator shed.
And what’s behind the generator shed is what appears in Photograph 5. And that’s where they keep the tack. And that’s when [MQ] was recalled, said that’s where he was abused. Now, what the father did. The father tried to fox around and say, ‘Well, I think it might have been on the back of the truck.’ Remember I asked him when he had to think back? And he said as he sits in the witness box, ‘I think it might have been on the - back in 2005 it might have been on the back of the truck.’ They got a permit or something like that. Now what I’d submit to you is that that’s just a lot of nonsense. It was an attempt that backfired.
An attempt to make [MQ] appear to be a liar, and it backfired. Blew up in the accused and his father’s face. You heard from Sergeant Frank Peiffer, who went out and took the photo. And there it is. The very, very place.
Now what I’d submit to you is that you have got an indication there of just what steps the accused will go to get himself acquitted. Now he also, you know, the bed. Sorry, not the bed, the motor car. The seats. He said they were welded. I mean, the first time we ever heard that was when he was in the witness box. It was never put to [MQ], ‘Look, you’re not telling the truth about the back seat being folded down. Because they can’t be folded down, they’re welded.’ And we’ve got all these other photos – haven’t got any photos of the car, he says, ‘It’s in a million bits somewhere.’ But that was the first time ever, just thrown in like that, that we heard that the car had the back seat welded for some reason.[6]

[6]Emphasis added.

In her charge, the learned judge instructed the jury as follows:

There is a rule of conduct which requires the accused to put facts in cross‑examination to witnesses who might be able to confirm or deny matters which are relevant to the case.
Now in this case, it has been put on behalf of the prosecution or the Crown that this was not done. And in particular, in relation to five matters. And it has been put by the Crown that therefore, witnesses for the prosecution have not been given the opportunity to confirm or deny evidence given by the accused. And some by his father, before you. In other words, evidence has been given by the accused which differs from some of the prosecution witnesses’ evidence, and it was not put to them.
Now first, it was not put in cross-examination to [MQ] that the accused did not feed the horses with him. Now the prosecution case is it is the first time ‑ and I might say, this is correct - the first time you heard about the accused putting that he did not feed the horses with [MQ], this is at Wedderburn, is when he gave evidence and his father gave evidence that no-one feeds the horses. Now [MQ] was cross-examined a number of times, and it was not put to him.
The second matter, was that [MQ] said in evidence that Counts 1 to 4 were - the accused approached him when he was on the computer, in the bedroom. Or in the house, I am not sure which room it was in. But when [MQ] was on the computer, the accused approached him. Now the accused said in evidence that there was no computer at the house at the time. That was not put to [MQ] when one would have expected it to have been put. And I will tell you what you make of this.
Now thirdly, it was that [PC] gave evidence, that is the grandmother of [MQ], the accused said in evidence that she rang him up at his father’s house, and I will read this to you in relation to another direction later, he said, ‘[PC] brought the Dubbo incident to my attention by ringing and explaining it to me, and explained that the whole thing had been dropped because there was no evidence. I can not remember the exact date,’ he agreed it was before 18 June 2007, ‘all I was told was that the charges had been dropped and there was nothing else of it. I was at my father’s house, she rung me.’ Now that was never put to her in cross-examination, and there was evidence lead, and I will go through this shortly, but there was evidence lead that that was factually incorrect in any event. That the police just did not investigate.
Now it was also put that – [MQ] gave evidence in the VATE tape, initially, then in the November 2005 - I just want to keep the dates as being clear, the VATE was 18 June 2007. And that is just the police officer asking questions. Now in the special hearing before His Honour Judge Duckett, on 15 November that year, he was not cross-examined on the basis there was no such structure. He referred to it as a cabin at that stage, and as you know he has said ‘a bungalow’, and then he recognised what is said to be the horse box, so the wooden structure, as he has described it, which looks like a wooden structure. On behalf of the accused, [MQ] was not cross-examined at that early time to say, ‘Well, there was no cabin, or any such structure, on the premises.’ And no photo was put to him then.
Now the fifth matter, that has been put, is that the counts, the last counts on the presentment, there are four counts, and Counts 13 and 14 relate to one incident in the car in the bush, and 15 and 16 relate to the second incident in the car in the bush. Now in evidence, the accused said, ‘Well, the back seat can’t go back, it’s welded in.’ I remind you of that, just so you have the context. I might read it to you later, I do not want to hold up proceedings. I cannot find it, and I will remind you of it later, ladies and gentlemen. It was put that you could pull it back, and he said, ‘Well, you’d need an angle grinder, because it’s welded in.’ But I cannot remember exactly the part, and I will find it later. Now that was never put to [MQ] in cross-examination. So the first time was when we heard it in evidence.
Now there is a rule of conduct, which requires facts that are relevant in a case, expected to confirm or deny important matters, to be put to, in cross‑examination by witnesses who might be expected to be able to confirm or deny the matters, in order to give the witness the opportunity to confirm or deny it.
Now it is an important rule, because it exists in order to enable you, members of the jury, to better evaluate the evidence as you have the issue taken by the accused in relation to [MQ’s] evidence and specific allegations, and the criticism made on behalf of the accused of those aspects of the Crown’s case, as well as the evidence of [MQ].
Now a failure to put these allegations or these matters cannot of itself disprove the allegations, nor can it have the effect of proving any element of the crime. The effect it has - which still requires to be proven beyond reasonable doubt. The only effect it can have is of enabling you to form a view of the evidence which has been given. Enabling you more readily to accept the evidence because the contrary assertion was not put to the witness, or in enabling you to reject the assertion because it was not put to the witness who could have denied it. And you can also infer that had it been told by the accused to his legal representatives, it would have been put to the witness.
So that it was - the Crown case is that you can infer that the accused decided to say those things when he gave evidence. Because had he told his lawyers earlier, to fulfil their duty, it would have been put to the witnesses. And you can use that, in relation to the credit of the accused when he gave evidence. But it is not proof of any of the elements of the offence, it does not prove the guilt of the accused, it simply goes to his credit.
Now following on from that, in this case the Crown has submitted that the accused has told a lie. And Mr Jones said that in his final address. And it is in relation to that evidence, specifically, he has honed in on this, and I will read it to you again. I read it - about, ‘How did you know about the allegations?’ ‘Because it had been brought to my attention by [PC]. [PC] had brought the Dubbo incident to my attention by ringing and explaining it to me, and explained that the whole thing had been dropped because there was no evidence. I can’t remember the exact date, it was before 18 – ‘, well, he agreed it was before 18 June 2007, ‘All I was told was that the charges had been dropped and there was nothing else of it. I was at my father’s. She rung me.’
Now the Crown case is, that during cross-examination of [PC], it was not put to her that she had made that telephone call or conveyed that information to him at all. The Crown case is that what has been attributed to her was factually wrong, which makes it unlikely she said that.

I now need to give you directions about the way in which you can use evidence about this suggested lie. One: it is up to you to decide whether the accused deliberately lied. That is, you must decide whether that statement is untrue, and whether he knew it was untrue at the time that he said it, or made the statement. There is a difference between rejecting a person’s statement and finding that the person deliberately lied. Sometimes people make mistakes, get confused, or genuinely cannot remember a fact, while what they may say is wrong, it is not a lie. If you are satisfied that the accused deliberately told the lie that I have just referred to, that evidence can only be used, if at all, to help you assess his credibility. If you find that he deliberately lied, you can use that fact in deciding whether or not you believe the other things that he said.
That is not to say that just because you find an accused lied about one matter you must also find that he has been lying about everything else. But you can use the fact that he lied to help you determine the truthfulness of the other things that he said. It is one factor to take into account. The weight you give to that factor will depend on how significant you find the lie to be. What you must not do is reason that because the accused told this lie, he is guilty. Evidence that he told this lie is not evidence of guilt. The alleged lie is only relevant if at all, in assessing his credit.[7]

[7]Emphasis added.

Later when her Honour summarised counsels’ submissions in her charge, she said:

[The prosecutor] then said that you ought not accept the evidence of the accused as truthful and that what is being put to you is that he was making it up as he was going along in the witness box, because there were a number of pieces of evidence that were important that the accused gave evidence about that were not put to the complainant [MQ] for him to answer, and that Mr Jones said you can infer, if that was told to his lawyers, they were under an obligation to put it to [MQ].
Therefore you may come to the view that the accused was making it up as he was going along and therefore you should not believe him.

Her Honour then referred to the feeding of the horses, the computer, the cabin and PC’s evidence.

No exception was taken to the charge by defence counsel.

Submissions

In support of ground 1, Drash relies on comments made by this Court in R v Thompson,[8] in which Redlich JA said that:

Where in breach of the rule [in Browne v Dunn], a matter has not been “put” to a witness by counsel and is subsequently deposed to in evidence by counsel’s client, an inference may arise that the matter has been recently invented. It is a process of reasoning fraught with peril which should therefore be employed only with much caution and circumspection, there being many explanations of such omissions which do not reflect upon the credibility of the witnesses. Accordingly, in a criminal trial the application of the rule and the circumstances in which an inference should be drawn from non-compliance with the rule must be seriously qualified. Where a party seeks to invite the jury to draw such an inference, a careful direction should normally be given concerning the operation of the rule and the limited circumstances in which that inference may be drawn.[9]

[8](2008) 21 VR 135.

[9]Ibid 157 (Hansen JA agreeing, Neave JA dissenting).

Counsel for Drash accepted that there was nothing inappropriate in the prosecutor’s cross-examination of Drash on the five matters. He also conceded that it was legitimate for the prosecutor, in his closing address, to draw the jury’s attention to the failure to put to MQ the issues relating to the presence of the computer, the feeding of the horses and the welding of the car seat.

However, he submitted that both the prosecutor’s closing address and the judge’s jury directions lacked the necessary ‘caution and circumspection’ which must be shown in a criminal trial. The judge could legitimately have told the jury that, in considering the weight to be given to statements made by Drash relating to the five matters, it could take account of the fact that these matters had not been put to MQ (or in the case of the statement that the charges had been dropped, to PC).[10] However, her Honour’s direction had gone well beyond this. Further, the judge should have warned the jury about the difficulties associated with drawing adverse inferences from a failure to put a matter to a witness and should have drawn the jury’s attention to the other possible explanations for the failure of defence counsel to put these matters to relevant witnesses.
[10]See the direction given by Kaye AJA in R v Ferguson (2009) 24 VR 531, approved by the Court of Appeal in R v Morrow (2009) 26 VR 526, 543.

As a result of the judge’s failure to tell the jury to consider other possible explanations for the lack of puttage, the only inference which the jury could have drawn from the jury charge was that the evidence relating to some or all of the five matters had been invented by Drash. In these circumstances, the failure to give an appropriate direction had resulted in a miscarriage of justice.

Without conceding the first proposed ground of appeal, counsel for the Crown appeared to accept that the appropriate warnings were not given by the trial judge. Nevertheless, he pointed out that defence counsel did not object to a Browne v Dunn direction being given (except in relation to the failure to put the absence of the cabin to MQ) and took no exception to the actual direction given by her Honour.

Conclusion on ground 1

The rule in Browne v Dunn is a rule of practice which is intended to ensure that a trial is conducted fairly, by requiring that ‘any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her.’[11]As Redlich JA observed in R v Thompson:

In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. That conduct must be put to the witness. The rule is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal’s assessment of the reliability and accuracy of the witness.[12] Where matters in controversy are not ‘put’ to the witness in cross-examination, the tribunal’s capacity to assess the credit of the witness is likely to be impeded.[13] Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.[14]

[11]MWJ v The Queen (2005) 222 ALR 436, 448 (Gummow, Kirby and Callinan JJ).

[12]R v Demiri [2006] VSCA 64, [36] (Redlich AJA).

[13]Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171, 200, [100] (Redlich J).

[14](2008) 21 VR 135, 157 (Hansen JA agreeing, Neave JA dissenting).

The first question to be considered is whether Drash in fact breached the rule in Browne v Dunn. Drash’s counsel conceded that MQ was never given an opportunity to respond to the evidence given for the defence that there was no computer in the house in 2005, that the horses were not hand fed and that the back seat of the car could not be put down because it was welded in place.

Drash’s counsel submitted that there was no breach of Browne v Dunn in relation to the offences said to have occurred in the cabin. He submitted that although MQ had not been cross-examined about the existence of the cabin at the first or second special hearing, he had been extensively cross-examined about this matter when he was recalled for a third time.

In our opinion, the failure to put the three matters set out in [65] to MQ was a breach of the principle in Browne v Dunn. Drash sought to impugn MQ’s evidence by suggesting that the offending could not have occurred in the manner that he had described and that various details of his allegations were false. MQ was recalled for cross-examination twice after the first special hearing and Drash did not avail himself of the opportunity to put these three matters to him on either of these occasions.

Drash’s failure to put to MQ that the back seat of the car could not be put down because it was welded was a particularly bad breach of the rule. Drash should also have put to MQ ― as he could have done as late as the third special hearing ― that there was no computer on the property.

MQ’s evidence about the hand feeding of the horses was related to the offences which occurred in the cabin. It was contradicted by Drash as part of the defence case that he had not spent time alone with MQ. Arguably that evidence was merely incidental to the allegations that the offending covered by counts 5 to 12 occurred in the cabin, so that the failure to put to him that the horses were not handfed was of minor significance. However, it was a matter which Drash relied upon to attack MQ’s credit, by saying that he had not spent time alone with MQ. Although this was not a serious breach of the rule in Browne v Dunn, we consider that it should have been put to MQ.[15]
[15]Cf the approach taken by this Court in Buchwald v R [2011] VSCA 445 relating to the startling of the deer [157]-[161].

Drash’s evidence, given in cross-examination, that PC had brought the Dubbo charges to his attention, and told him that ‘the whole thing had been dropped’ is, in the context of this case, in a category of its own. It was no part of the Crown case that this conversation had not taken place, because whether or not PC provided the information in question did not bear on the guilt or innocence of Drash. Accordingly, the prosecution was in no way disadvantaged by the failure of Drash’s counsel to ask questions of PC about it, or otherwise about the conversation which Drash says he had with her.

The Crown put it to the jury that Drash’s evidence about the content of the conversation with PC was a lie because ‘the matter was [not dropped], just never investigated’. But this is not only a weak point going at best only to credit; it is not a point that raises a Browne v Dunn issue.

In these circumstances, no breach of the rule in Browne v Dunn is attributable to the fact that the relevant conversation was not put to PC. It follows that the prosecutor was wrong to suggest such a breach. More importantly, the judge erred in not correcting that fault (albeit that counsel for Drash did not bring it to her attention), and then her Honour wrongly instructed the jury that the rule in Browne v Dunn had been breached in this instance. It had not.

Nor was Browne v Dunn breached by defence counsel’s late cross‑examination of MQ about the existence of the cabin until the third special hearing. MQ’s recall for further cross-examination in the third special hearing overcame any unfairness which would otherwise have arisen and was consistent with the view of Gummow, Kirby and Callinan JJ in MWJ[16] that:

In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.[17]

[16](2005) 222 ALR 436.

[17]Ibid 448-9.

The second question is whether the prosecutor’s comments in his closing address were consistent with the caution and circumspection which a prosecutor must exercise in presenting the Crown case against an accused person.

The prosecutor cross-examined Drash about the lack of puttage and gave Drash an opportunity to explain why his counsel had not put these matters to MQ. In these circumstances, it was not unfair for the prosecutor, in his closing address, to draw the jury’s attention to Drash’s failure to put the issues relating to the computer, the feeding of the horses and the welding of the car seats to MQ. However, because defence counsel had cross-examined MQ at the third special hearing about the existence of the cabin, the prosecutor should not have relied on the lack of puttage in relation to the cabin.

In R v Thompson, Redlich JA said that:

Ordinarily, if the prosecutor is permitted to make [a comment about lack of puttage], he should provide some explanation of the rule and advert to other explanations for counsel’s omission.[18]

[18](2008) 21 VR 135, 159.

Contrary to that principle, counsel did not advert to possible explanations for the omission and did not refer to Drash’s explanation that he had told his lawyers about the absence of the computer, and the fact that the horses had not been handfed. To the contrary, he suggested that the explanation for the lack of puttage was that Drash had ‘made up’ his evidence at the last minute and that if he had told his counsel about these matters they would have been put to MQ.

If, contrary to the view we have already expressed, the prosecutor was entitled to rely on the late puttage of matters relating to the cabin, he went too far in saying that the late cross-examination of MQ about the existence of the cabin indicated that Drash and his father had ‘got their heads together’ with the intention of making out that MQ was a liar.

Because of the clear breaches of Browne v Dunn by defence counsel, we would not necessarily have held that the prosecutor’s failure to exercise appropriate caution in his closing address was sufficiently serious to give rise to a miscarriage of justice, if the judge had given an appropriate direction as to these matters.

In the circumstances of this case, the judge could legitimately have told the jury that the lack of puttage about the computer, feeding the horses and the car seat could be taken into account in assessing the weight to be given to the relevant parts of Drash’s evidence and in considering the arguments made in defence counsel’s closing address.[19] However, her Honour erred in treating the lack of puttage relating to the cabin, and the conversation with PC about the Dubbo charges, as a breach of the rule in Browne v Dunn.
[19] R v Morrow (2009) 26 VR 526, 543, referring to the direction given by Kaye AJA in R v Ferguson (2009) 24 VR 531.

In addition, her Honour’s directions about the inferences which could be drawn from the lack of puttage, relating to matters where Drash breached the rule, went too far. As Redlich JA observed in R v Morrow:[20]

It is one thing to comment on the fact that a witness has been treated unfairly but another thing altogether as Gleeson CJ observed in Birks to suggest that a person “should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross examination to other witnesses by that person’s counsel”.[21]

[20](2009) 26 VR 526, 544.

[21](1990) 19 NSWLR 677, 690.

In MWJ v The Queen,[22] the High Court said that it was important that a breach of the rule in Browne v Dunn should not be over-emphasised in a criminal trial.
[22](2005) 222 ALR 436.

Further, as Redlich JA observed in Buchwaldv the Queen:[23]

This court has repeatedly emphasised that a trial judge should not invite a jury to draw adverse inferences as to the credibility of the accused where there has been a failure to comply with the rule.[24] It will seldom be appropriate for a trial judge to go so far.[25]

[23][2011] VSCA 445.

[24]R v Thompson (2008) 21 VR 135, 159 [120]; R v Rajakaruna (No 2) (2006) 15 VR 592, 608 [52]‑[53]; R v Morrow (2009) 26 VR 526, 528 [6] (Nettle JA), 544-5 [65]–[70] (Redlich JA).

[25][2011] VSCA 445, [16].

Her Honour did not refer specifically to the possibility of recent invention. But the prosecutor’s closing address invited the jury to infer that Drash had ‘made up’ parts of his evidence. In these circumstances, her Honour should have reminded the jury that Drash’s evidence was that he had told his counsel about three of the five matters. Further, her Honour should have referred to other explanations for the lack of puttage. As Gleeson CJ observed in R v Birks,[26] these explanations could have resulted from counsel’s misunderstanding of his instructions, or from ‘looseness or inexactitude’ in framing the questions asked of the witness. Alternatively, these matters might simply have been overlooked by counsel.[27]
[26](1990) 19 NSWLR 677.
[27]Ibid 691.

The judge correctly warned the jury that the failure to put the allegations did not have the effect of proving any element in the crime, which still had to be proven beyond reasonable doubt. However, the effect of her Honour’s failure to avert to possible explanations for the lack of puttage was compounded by her answer to a jury question, which is also the subject of proposed ground of appeal 2. During cross‑examination, Drash gave evidence that he could not recall being provided with a hand-up brief, and was not provided with a copy of the depositions. He said that he had not read these documents but had, instead, discussed the allegations made against him with his lawyers. He said that he ‘guessed’ that his solicitors had been served with the documents including the transcript of the VATE tape, but did not recall. The prosecutor then put it that:

So here we have this wrongful allegation made about you, but you - when the documents are served on your solicitor you’ve gone to the trouble of instructing a solicitor who’s gone to the trouble of having the solicitor receive the documents on your behalf, but you say you don’t really bother to find out what those - what allegations those documents contain?---

He replied that:

It was discussed with me between myself and my lawyer. I didn’t actually sit there and read the documents. It was discussed.

Prior to the charge, the jury asked the judge whether ‘the documents were given and fully explained to the accused’. In response, the learned trial judge directed the jury as follows:

Now, the accused man has had, throughout the court cases, an experienced solicitor and an experienced barrister.
The inference… is that when people are engaged as lawyers, as a solicitor and a barrister, is that it is their job to explain the prosecution documents or case because that’s the way you get instructions, which is the accused’s reply to what is alleged against him.
So you can’t get instructions unless you explain to your client what has been said against him. Two things. Mr Timms and Mr Willcox are experienced lawyers. One’s a solicitor, one’s a barrister, and they practice in the criminal jurisdiction. So one would draw that inference, and secondly, it has not been suggested that that wasn’t done. So you can assume that that was done and those documents were received.

Although the answer did not specifically address the question whether the lawyers would have based their conduct of the defence on Drash’s instructions, we consider that her Honour’s answer would have reinforced a perception in the jury that Drash was lying when he said he had instructed his counsel about the absence of the computer, and the fact that the horses were not hand fed. Her Honour should have taken particular care not to invite the jury to draw what were clearly impermissible inferences, given the state of the evidence.

For these reasons, we consider that if Drash is granted an extension of time to appeal against his conviction, it is likely that the first proposed ground of the appeal would succeed.

Proposed ground of appeal 2

This ground of appeal states that the ‘Learned Trial Judge erred in the directions to the jury as to the evidence concerning the provision of documents to the Applicant’.

The circumstances giving rise to this ground have already been discussed. We would not necessarily have held that this ground of appeal, standing alone, was sufficient to give rise to a miscarriage of justice. However, as we have already said, the judge’s answer to the jury question, in combination with the judge’s directions on the effect of the breach of the rule in Browne v Dunn, led to a miscarriage of justice. It is therefore unnecessary to consider this ground further.

Proposed grounds of appeal 3 and 4

These grounds of appeal were as follows:

3. The trial of the applicant miscarried as a result of the learned prosecutor’s submission to the jury as to the obligation to consider ‘whether or not’ the complainant would have any motive to not tell the truth.

4. The trial of the applicant miscarried as a result of:
(a) the learned prosecutor’s submissions to the jury about the applicant’s motive to lie; and

(b) the repetition of that argument by the learned trial judge.

In his closing address, the prosecutor said:

So the evidence of the accused, the evidence of his father, although the accused does not bear any onus, that evidence becomes part of the evidence in the trial and you’ve got to look at that evidence as you would look at any other evidence in the trial. First of all you’ve got to look to see if people have got motives.
What I’d suggest to you is that the accused himself, he has a motive to not tell the truth. The accused’s father, and what I’d submit to you there is the accused’s father obviously has a motive to help his son, and they’re matters that you’ve got to consider. You’ve got to consider when you come to the evidence of [MQ], you’ve got to consider his age. You’ve got to consider a lot of things.
You’ve got to consider the circumstances under which these things are alleged to have happened, whether or not he would have any motive to not tell the truth, whether he’s accurate, they’re all assessments that you’ve got to make of the witnesses and you’ve always got to remember this, that the accused ‑ just because the accused gives evidence it doesn’t mean that he’s not guilty. I mean, if he can get in the witness box and tough it out and create a doubt in your mind, tough out cross-examination and so forth, then he’s achieved a lot knowing all the time that he himself is guilty. So you’ve got to bear those things in mind, but he becomes a witness in the trial and you consider him like any other witness; considering motive and things of that nature.

The trial judge made no comment on the aspect of the prosecutor’s closing address relating to MQ’s motive to lie.

Counsels’ submissions

In support of grounds 3 and 4, Drash submitted that the prosecutor should not have asked the jury to consider whether MQ had any motive ‘not to tell the truth’, [28] and that her Honour’s failure to tell the jury that they should ignore the apparent absence of any motive to lie had caused Drash’s trial to miscarry.
[28]Counsel relied on R v Cupid [2004] VSCA 183.

Drash also submitted that both the prosecutor and the trial judge were bound by the principle that the jury should not be told that the interest of the accused in the outcome of a criminal trial is a factor to be taken into account in assessing his or her evidence.[29] There had been a miscarriage of justice because the judge should have directed the jury that Drash’s evidence should not be given lesser weight than the evidence of other witnesses, simply because he was accused of the offences.[30]
[29]R v Asquith (1994) 72 A Crim R 250, 259 (Hunt CJ at CL, Smart and Badgery–Parker JJ concurring).
[30]Counsel appears to have submitted that a direction along the lines of that in PalmervThe Queen (1998) 193 CLR 1 should have been given.

The prosecutor submitted that there was no improper cross-examination of the accused of the kind which occurred in Palmer v The Queen[31] about whether MQ had a motive to lie. When read in context, the prosecutor’s reference to MQ’s motive to lie was no more than a request to the jury to scrutinise the evidence of the main witnesses. It was appropriate for the trial judge to ignore the reference to MQ’s lack of a motive to lie as to address it would have given excessive emphasis to a matter which was of little importance at the trial.
[31](1998) 193 CLR 1.

Reference to MQ’s motive to lie

In Palmer v The Queen,[32] a majority of the High Court held that an accused should not be cross-examined about the reasons a complainant might have for lying. The reasons why this is held to be improper are that:
[32]Ibid.

· it will encourage the jury to engage in irrelevant speculation as to why a complainant may have lied;

· an accused will usually be unable to advance an explanation for a motive to lie;

· the absence of a motive to lie does not enhance the credibility of the complainant; and

· the question has the potential to undermine the burden of proof which lies on the prosecution to prove guilt beyond reasonable doubt.

This principle has also been held to make it improper for a prosecutor, in closing address, to ask a rhetorical question about whether the complainant has a motive to lie.[33] Where a question of this kind is raised in the prosecutor’s closing address, it may be necessary for the trial judge to direct the jury to disregard it.
[33]R v Cupid [2004] VSCA 183, [39]-[40] (Buchanan JA) (‘Cupid’).

In this case, no such direction was given by her Honour. Nevertheless, we would accept the Crown submission that there was no realistic possibility that her Honour’s failure to give a Palmer direction resulted in a miscarriage of justice. We take that view for three reasons.

First, unlike the situation in Cupid, the question of whether MQ might have had a motive to lie was never pursued at the trial. Secondly, although the prosecutor’s remark ought not have been made, it was made in the broader context of him telling the jury that they had to make an assessment of all the witnesses. The prosecutor also reminded the jury that they had to be persuaded of Drash’s guilt beyond reasonable doubt.

Thirdly, we consider that because MQ’s motive to lie was never pursued at trial and was mentioned only once in a broader context, a Palmer direction would have been counter‑productive for the accused, and might well have had the effect of encouraging the jury to speculate in a way that it would not otherwise have done.

Finally, also unlike the situation in Cupid, the judge did not repeat the objectionable aspect of the prosecutor’s closing address.

We are reinforced in our view that the brief reference to MQ’s motive to lie did not cause a miscarriage of justice by the fact that neither counsel raised any concerns with her Honour, that defence counsel did not seek a Palmer direction, and that no exception was made to her Honour’s jury charge.

For these reasons, we consider that proposed ground 3 is not made out.

Reference to Drash’s motive to lie

It is also necessary to consider whether the prosecutor’s statement in his closing address that ‘the accused himself has a motive not to tell the truth’, and her Honour’s repetition of that statement in referring to the prosecutor’s closing address, gave rise to a miscarriage of justice.

In Robinson v The Queen,[34] the High Court held that there had been a miscarriage of justice because the trial judge had directed the jury that they should take into account the interests a witness might have in the outcome of the case and that ‘you might think that the accused had the greatest interest of all the witnesses … and that, therefore, you should scrutinise his evidence closely’. The court held that this direction amounted to telling the jury that the evidence of the accused had to be scrutinised more carefully than that of any other witnesses and therefore undermined the presumption of innocence.
[34](1991) 180 CLR 531.

In R v Haggag,[35] where it was argued that the judge had erred by inviting the jury to give less weight to the accused’s evidence, Callaway JA drew the distinction between:

two quite different suggestions that might be made to a jury. The first suggestion is that, if the accused is guilty, he or she has a motive to lie. That does not assume that the accused is guilty. It simply makes one of the points that is made in the conventional comment that, whilst there is really no more that an innocent person can do than give sworn evidence and submit to cross‑examination, a guilty person may choose to brazen it out in the witness box. The second, quite different, suggestion is that the accused has a motive to lie in order to secure an acquittal. Compare M.[36] That undermines the presumption of innocence, because it assumes that the accused person is guilty: apart from exceptional cases, if he or she is not guilty, there is no motive to lie. It also invites the jury to engage in circular reasoning: (a) assume sub silentio that the accused is guilty; (b) use that assumption to discount his or her evidence; and (c) having discounted that evidence, find that the accused is guilty.[37]

[35](1998) 101 A Crim R 593.

[36](1997) 99 A Crim R 464, 480-482.

[37](1998) 101 A Crim R 593, 598.

In our opinion, the prosecutor’s suggestion that both the accused and his father had a motive to not tell the truth fell into the second category.

The question is whether the judge’s directions were sufficient to overcome the effect of this statement. Her Honour emphasised the burden of proof which lay on the Crown at various points in her jury charge. She said that:

The accused man does not have to prove anything. He is considered to be innocent until proven guilty and does not have to establish his innocence and I reiterate that in this case where the accused gave evidence and called evidence. The onus then does not shift to him, and he said in his evidence, ‘I want to prove I'm innocent’ or words to that effect. Well, in our system there is no such thing as an accused having to prove anything. It is for the prosecution to satisfy you beyond reasonable doubt that the accused man is guilty of each of the offences set out in the presentment.

She also said that:

in this case the accused Edward Drash gave evidence on oath. I must tell you that the accused does not have to do that. He could have declined to say anything, and had he done so nobody could have made a comment about it. Mr Jones is not permitted to as the prosecutor and I am not permitted to as the trial judge because in Victoria an accused has the right to remain silent. The accused rejected this course and chose to give evidence. By doing so, he pledged his oath to the truth of what he said and were it not true he could be prosecuted for perjury.
But more importantly perhaps, he submitted himself by choosing this course to cross-examination, which is the weapon lawyers use to test the strength of the evidence. When considering what weight you should give to the accused’s evidence, it is best to regard his evidence in the same way as you would any other witness's evidence, remembering that the accused may be under much more strain than other witnesses because he is the accused and again I will reiterate this, ladies and gentlemen: remembering that by going into the witness box he does not assume any burden of proof. The burden still rests on the Crown.

In summarising the prosecutor’s arguments, her Honour reminded the jury of his statement that:

you ought not to accept the evidence of the accused and you ought not to accept the evidence of his father. He said the accused has a motive to lie and the father has a motive to help his son.

It would have been better if the re-statement of the prosecutor’s closing address had been accompanied by a reminder that the jury could not assume that Drash was lying, simply because he was charged with the offences. However, we consider that directions her Honour gave on the burden of proof elsewhere in her charge, and particularly in the passage cited in [111], were sufficient to overcome the risk that the jury would engage in circular reasoning by assuming that the accused was likely to be lying because he had been charged with these offences. For that reason, we consider that proposed ground 4 is not made out.

Proposed ground 5

Because ground 1 is made out, it is unnecessary to consider this ground.

Application for an extension of time to appeal against conviction

The time limit for filing an application for leave to appeal against conviction expired on 8 October 2009. Drash sought an extension of time on 12 January 2011. In that application, Drash said that:

I was led to believe that my legal team had filed the application and it was only recent[ly] that my father managed to see and speak to my legal team that we found that they had not filed the applications, citing various reasons why they had not done so. Also the alleged victim made three different statements.

The affidavit of Drash’s current solicitor indicates there is some evidence that Drash made efforts to instruct his trial solicitors, Cahills, to appeal against his conviction. In particular, Drash provided the Court with a copy of a letter to Robert Timms on 13 October 2009, in which he said that ‘I also would like to make known that I still wish for eithe[r] an appeal on conviction or a retirl [sic].’ The Crown did not allege that the letter was fabricated and/or had not been sent to the solicitor.

There is an apparent inconsistency between this letter and Drash’s affidavit supporting his application for an extension of time for leave to appeal against sentence. In an affidavit sworn on 12 October 2009, Drash deposed that:

On 22^nd September, 2009 I had a telephone conference with my Solicitor who advised me that my Counsel had recommended that I make application for leave to appeal against sentence only. I authorised him to lodge the appropriate notice.

This statement does not appear to have been addressed in Drash’s current application, nor in the affidavit affirmed by his current solicitor in support of that application.

Further, in the affidavit of Robert Henry Timms sworn 12 October 2009, Drash’s former solicitor deposed as follows:

On 22^nd September, 2009 I had a telephone conference with the Appellant who instructed me to proceed with an appeal against sentence only.[38]

[38]As noted above, the applicant states that he is unable to account for this statement by Robert Timms.

Drash states that in early 2010, he became aware that a conviction appeal had not been filed. The circumstances in which Drash became so aware are not entirely clear, apart from the assertion in his application that his father ‘managed to see and speak to [his] legal team that we found that they had not filed the applications’.

On 2 January 2010, Drash wrote a letter to Robert Timms ‘in regards to my appeal and retrial’. In that letter, he asked if there was ‘any news on my appeal, do we have a date better still has the appeal been approved?’

On 3 February 2010, Drash sought assistance from Bill Sizeland, at Victoria Legal Aid’s (‘VLA’) prison advice service, who advised him to obtain the transcript of his trial, which he did.

By way of letter dated 11 February 2010, Mr Sizeland enclosed a copy of a legal aid application, and told Drash to set out in that application matters ‘which you believe render the finding of guilty against you unsafe. In particular, by reference to the trial transcript’.

On 31 May 2010, Bill Sizeland wrote to Robert Timms, enquiring about whether Cahills had provided any written advice regarding Drash’s prospects of appealing his conviction.

On 4 June 2010, Robert Timms responded in an email to Bill Sizeland, explaining that his son had recently been involved in a serious accident, and requesting that Mr Sizeland take over Drash’s appeal file.

On 4 November 2010, Drash wrote directly to the Court of Appeal Registry ‘to apply for an application for an appeal for conviction and apply for a retrial’. In that letter, Drash stated (among other things) that ‘I have just recently found out that my lawyer did not apply for a retrial at the time, he kept coming up with different reasons why he was delaying to do so’. Drash maintains that he believed that this letter was sufficient to appeal his conviction.

On 11 November 2010, Bill Sizeland wrote to Drash stating that:

I understand that you recently saw my colleague, Rob Daly, and expressed to him your ongoing wish to pursue an appeal against conviction… It is simply not possible for me to analyse the extensive trial transcript in order to identify whether an appeal against conviction is warranted, and at this stage I must rely upon the assessment made by your Counsel that an appeal against conviction was and is not warranted. If you are able to draw my attention to specific matters within the transcript that clearly identify the errors that you say occurred in the Rulings of the trial Judge, or indeed the failure of your Counsel, I am prepared to consider those matters further.

Some time after Drash was moved to Ararat Prison (that is, after 1 December 2010), he received the correct form of documents for filing his application for leave.

As outlined above, Drash contends that the prison advice service merely sought to support him preparing the conviction appeal himself, and therefore, the fact that the filing of this application took a long time could not be regarded as his fault.

Conclusion

In deciding whether an extension of time should be granted, the court must take account of both Drash’s reasons for failure to comply with the statutory requirement and of the merits of the proposed appeal.

In R v Davis, Winneke ACJ stated that:

Certainly the applicant must, in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the time and also to show, in the event that the time lapse is considerable…that there are such merits in the proposed appeal that it will probably succeed.[39]

[39](2003) 6 VR 538, 539.

We are not altogether satisfied that Drash can give a satisfactory account of his reason for not seeking leave to appeal against conviction within time. However, there is some evidence that there was miscommunication between Drash and his solicitor. We consider that the proposed appeal would succeed on the basis discussed above. For that reason, we would grant the extension of time sought by Drash, allow the appeal and remit the matter for a retrial.

It is therefore unnecessary to consider Drash’s appeal against sentence.

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[2012] VSCA 33

19 March 2012