Julian Mathias Buchwald v The Queen

[2012] HCASL 181

JULIAN MATHIAS BUCHWALD

v

THE QUEEN

[2012] HCASL 181
M9/2012

1. The applicant was charged with one count of kidnapping and one count of making a false report to police.  A jury trial was held in the County Court of Victoria.  The Crown case was that on 4 March 2008 the applicant kidnapped his then girlfriend and, when later questioned by police, claimed that he too had been a victim of the kidnapping, rather than its perpetrator.  In his evidence-in-chief, the applicant raised matters which brought into question evidence that had been given by several Crown witnesses, but which had not been put to those witnesses by defence counsel in cross-examination.  The trial judge (Smallwood J) questioned the applicant about his failure to put the relevant matters to the witnesses concerned.  His Honour also gave the jury a Browne v Dunn direction relating to the matters that should have been put.  On 17 August 2009, the jury found the applicant guilty on both counts.  The applicant was later sentenced to a total effective sentence of seven years and nine months' imprisonment.

2. The applicant applied for leave to appeal against his convictions to the Court of Appeal of the Supreme Court of Victoria.  The applicant contended, among other things, that a miscarriage of justice was occasioned by the trial judge's questioning of the applicant about the alleged breach of the rule in Browne v Dunn (1893) 6 R 67 and by the directions that his Honour gave the jury about that breach. On 20 December 2011, leave to appeal was refused. The Court of Appeal (Hansen JA, with whom Neave and Redlich JJA agreed) held that the trial judge's questioning did not cause any unfairness to the applicant. It also held that, although the trial judge's directions to the jury incorrectly applied the rule in Browne v Dunn, that error did not cause a substantial miscarriage of justice. 

3. The applicant seeks special leave to appeal to this Court on grounds similar to those raised in the Court of Appeal concerning the breach of the rule in Browne v Dunn.  There is no reason to doubt the correctness of the Court of Appeal's conclusions on those grounds.  As the Court of Appeal observed, the evidence against the applicant was overwhelming.  To the extent that the trial was attended by irregularities, those irregularities did not occasion a substantial miscarriage of justice.  Special leave to appeal to this Court is refused.

4. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
12 December 2012 S.J. Gageler