Gregory Francis Browne v The King

[2024] VSCA 194

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0084

GREGORY FRANCIS BROWNE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2024
DATE OF JUDGMENT:	5 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 194
JUDGMENT APPEALED FROM:	DPP v Browne (Unreported, 20 October 2023, County Court of Victoria, Judge Doyle)

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CRIMINAL LAW – Appeal – Conviction – Rape and associated offences – Defence counsel failed to adduce evidence of good character – Defence counsel failed to request a ‘good character’ direction – Whether substantial miscarriage of justice occurred – Appeal allowed – New trial ordered.

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Counsel
Applicant:		Mr T Kassimatis KC and Mr CK Wareham
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Le Brun & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

THE COURT:

1. On 20 October 2023, a jury empanelled in the County Court to try him found the applicant guilty of rape (three charges – charges 1, 2 and 5); recklessly causing injury (one charge – charge 4); and common assault (two charges – charges 6 and 7).  Subsequently, on 29 February 2024, the judge sentenced him to a lengthy term of imprisonment.[1]

   [1]See DPP v Browne [2024] VCC 266 (Judge Doyle).

2. By a notice filed on 14 May 2024,[2] the applicant seeks leave to appeal on five grounds, the first of which is formulated as follows:

   1A substantial miscarriage of justice occurred because defence counsel:

   (a)failed to adduce evidence of the applicant’s good character and did not request from the judge a ‘good character’ direction; and

   (b)introduced into evidence at the trial evidence of bad character.

   [2]The Registrar granted an extension of time within which to file the notice on 30 August 2024.

3. The respondent has fairly conceded that this ground should succeed and that there should be a new trial. 

4. We consider the respondent’s concession to have been properly made.  As a result, we will grant leave to appeal against conviction on the first ground; allow the appeal; set aside the convictions; and order a new trial.  In those circumstances, it is unnecessary to determine the other grounds.[3]

   [3]Those grounds were:

   2A substantial miscarriage of justice occurred because the prosecutor submitted to  the jury that ‘it [was] a sad fact that in general women are more likely to be raped by someone they know rather than a complete stranger’.

   3A substantial miscarriage of justice occurred because the prosecutor in her address without having challenged his truthfulness during her cross-examination of him.

   4AA substantial miscarriage of justice occurred because defence counsel did not put to the prosecution witness, [AG] – as he had to the complainant – that:

   (a)she was present when the applicant and the complainant argued because the applicant’s daughter, Sheraton, disclosed to him that the complainant had beaten her; and

   (b)the argument between the applicant and the complainant (if she was able to say) was, in fact, the catalyst for the breakdown of their relationship.

   4BA substantial miscarriage of justice occurred as a result of the prosecutor’s unfair criticism of defence counsel in her closing address.

   5A substantial miscarriage of justice occurred as a result of an aggregate of some (or all) of the errors alleged in grounds 1 to 4.

5. Given the respondent’s concession, it is unnecessary to describe the applicant’s alleged offending in any detail.  The incidents founding the charges upon which the applicant was convicted arose in the context of an intimate relationship with a female partner, ‘JW’.  In her evidence, JW — who has since died — described a relationship with the applicant permeated by verbal and sexual abuse and violence.  Charge 1 concerned an alleged incident of penile-vaginal rape in February 2004; charges 2 and 4 related to an incident of penile-vaginal rape, accompanied by violence, in March 2009; charges 5 and 6 related to another incident of penile-vaginal rape, accompanied by violence, in April 2011; and charge 7 related to an incident in which the applicant punched and kicked JW, also in April 2011.

6. At trial, the applicant — who had no prior convictions — had evidence of positive good character available to him.  Due to incompetence, however, his counsel at trial did not pursue the possibility of leading evidence of good character. 

7. For the purposes of the present application, counsel swore an affidavit revealing his incompetence.  The respondent accepts that the contents of trial counsel’s affidavit makes plain that counsel should have pursued the possibility of leading evidence of the applicant’s good character, and of seeking a ‘good character’ direction from the judge, and concedes that counsel’s failure to do so has resulted in a substantial miscarriage of justice.

8. We agree.  In our view, the failure to pursue the possibility of calling good character evidence, and of seeking a direction on good character, deprived the applicant of a chance of acquittal, fairly open.[4]  We will therefore grant the application for leave to appeal against conviction; allow the appeal; set aside the convictions; and order that there be a new trial.

   [4]See, e.g., Sharma v The Queen [2011] VSCA 356.

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