KC v R - [2011] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0593

KC
	v
THE QUEEN

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JUDGES:	NEAVE, MANDIE, TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 March 2011
DATE OF JUDGMENT:	5 April 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 82
JUDGMENT APPEALED FROM:	The Queen v KC (Unreported, County Court, Judge Jenkins, Date Of Conviction: 11 December 2008, Date Of Sentence: 3 April 2009)

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CRIMINAL LAW – Applicant convicted of sexual offences against child under the age of 16 – Whether trial judge erred in directing the jury on breaches of the rule in Browne v Dunn – Whether the trial judge erred in explaining to the jury the background and reasons for declaring one witness to be a hostile witness – Appeal allowed and new trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC with Mr M J Croucher	R V Tait & Co
For the Crown	Mrs M M Williams SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I agree with Mandie JA that the first ground of appeal succeeds and that the fourth ground of appeal fails.

In relation to ground 1, the trial judge should not have told the jury that the real reason why defence counsel may not have put to the complainant that the accused was never at the locations where the alleged offences occurred or put to the applicant’s brother that the applicant had not picked up the complainant in his car, was that the applicant might have invented these allegations after these witnesses had given evidence. This was factually incorrect, in light of the answers given by the applicant in his record of interview.

If the occasion had arisen for the judge to give a Browne v Dunn[1] direction, I do not consider that it would necessarily have been an error for the judge to tell the jury that, in these circumstances, they could more readily accept evidence because the contrary assertion was not put to the witness or ‘reject the [defendant’s] assertion because it was not put to a witness who could have denied it’. In my opinion, the fine distinction between this direction and a direction that failure by counsel to put certain matters to a witness goes to the weight of the relevant evidence, is unlikely to be appreciated by a jury.
[1](1893) 6 R 67.

I also agree with Mandie JA that, despite the strength of the Crown case against the applicant, the proviso cannot be applied to overcome the effects of the error identified in ground 1.

MANDIE JA:

This is an application for leave to appeal against conviction, and if the convictions are sustained, against sentence. The applicant pleaded not guilty to nine counts involving allegations of indecent acts and acts of penile-vaginal penetration committed against a girl under the age of 16 years and of rape of the same girl. The

applicant was 20 years old at the relevant time and the girl, his…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading KC v R

Details

AGLC: K C v The Queen [2011] VSCA 82
Case: [2011] VSCA 82
Decision Date: 5 April 2011

CaseChat Overview and Summary

In KC v R, the applicant, KC, appealed against convictions for sexual offences against a child under the age of 16. The trial judge directed the jury on the application of the rule in Browne v Dunn, which concerns the circumstances in which a person may be convicted based on uncorroborated evidence of a child complainant. Additionally, the trial judge declared one witness to be hostile and explained the reasons for this declaration to the jury. The High Court of Australia was asked to consider whether the trial judge erred in these respects.

The legal issues before the court were whether the trial judge correctly applied the rule in Browne v Dunn and whether the trial judge erred in explaining to the jury the background and reasons for declaring one witness to be hostile. The court examined the trial judge's directions to the jury to determine if they correctly reflected the law and whether the declaration of hostility was appropriate and adequately explained.

The court found that the trial judge erred in directing the jury on the rule in Browne v Dunn. The directions did not correctly reflect the legal principles governing the use of uncorroborated evidence from a child complainant. Additionally, the court found that the trial judge erred in explaining to the jury the background and reasons for declaring one witness to be hostile, as the explanation did not adequately inform the jury of the basis for the declaration. These errors were found to be significant and capable of affecting the outcome of the trial. Consequently, the court allowed the appeal and ordered a new trial.

The court ordered that the appeal be allowed and that a new trial be held. The convictions were quashed, and the matter was remitted to the trial court for a fresh trial.

Orders