KC v R

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 first cousin, was 15 years old. A County Court jury found the applicant guilty of eight counts (the ninth count being an alternative only).

The eight counts upon which the applicant was convicted may be divided, for convenience, into four categories. The first category relates to conduct that occurred at the applicant’s mother’s house in a bedroom in which the complainant said that both she and the applicant were sleeping on 2 and 3 June 2006. The relevant offences were an indecent act in the evening of 2 June 2006 (count 1), penile penetration on the same date (count 2) and penile penetration in the same location on the next evening (count 3). The second category relates to conduct that occurred between 4 June and 12 June 2006 when the complainant was living with her brother at her grandmother’s house and the applicant picked her up and took her for a drive in a car. The relevant offences were an indecent act (count 4) and penile penetration (count 5). The third category relates to conduct that occurred in or in the vicinity of a toilet at a shopping centre between 10 July 2006 and 21 July 2006 and the relevant offence was an indecent act (count 6). The fourth and final category relates to conduct that occurred between 12 August 2006 and 30 November 2006, again at the applicant’s mother’s house. The relevant offences were an indecent act (count 7) and rape (count 8).

The applicant initially had six grounds of appeal but grounds 2, 3 and 5 were abandoned by his counsel at the commencement of the application. That left the following two grounds upon which oral argument was advanced, namely, that the learned trial judge erred in directing the jury:

1.upon Browne v Dunn and in permitting the prosecutor to address the jury on this matter.
4.upon the background and ruling as to the witness [RB] being declared a hostile witness.

Ground 6 was that the verdicts of the jury were unsafe and unsatisfactory but no argument was advanced under this ground and the written outline merely contended that the verdicts were unsafe and unsatisfactory by virtue of one or more of the errors the subject of the other grounds.
Background to the grounds of appeal

The context in which the grounds of appeal arise is as follows.

In a record of interview of the applicant by the police the applicant had emphatically denied all of the complainant’s allegations, stating in substance, in answer to a very large number of questions asked of him by the police, that none of the offending conduct had happened and that he had not been there. In particular, it is reasonably clear from the record of interview that the applicant was saying that he was not staying or sleeping at his mother’s house on the dates alleged in relation to counts 1, 2 and 3, that he did not pick up the complainant in his car in relation to counts 4 and 5, that he was not at the shopping centre in relation to count 6 and that the events did not happen in relation to counts 7 and 8. In circumstances to which I will later refer, the record of interview was not tendered in evidence and the jury only had extracts from it read to them – nevertheless it would seem that the contents of the record of interview to some extent gave rise to what occurred at trial and in discussions between counsel and the judge.

The complainant gave her evidence at a special hearing that was conducted some months before the trial. When she was cross-examined by defence counsel, the details of her evidence were tested in various ways but it was not expressly put to her in so many words that the applicant was not present on any or each of the relevant occasions. At the conclusion of the cross-examination, defence counsel put to the complainant a number of matters. In relation to counts 1, 2 and 3, counsel put to the complainant that ‘it never happened’ and she twice replied ‘that’s not true’. In relation to counts 4 and 5, counsel put to her that she had ‘made that up, it didn’t happen’ to which she replied that it did happen. In relation to count 6, counsel put to her ‘that didn’t happen at all, did it?’ to which she replied ‘no it did’. Finally, as to count 8, counsel put to the complainant that ‘you made that up, didn’t you?’ to which she replied ‘no’. Finally, the following exchange took place:

Q: You dislike [the accused] a great deal?
A: Now, I do, yes.
Q:You’re prepared to say anything, aren’t you, to make sure that he cops it?
A:No, I’m just here to tell the truth.

At the trial, which commenced on 3 December 2008, and after the Crown opening, defence counsel briefly addressed the jury. After some preliminary matters, and after indicating a number of matters that were not in issue, he said to the jury:

So, what is in issue? I’ll tell you what’s in issue. Everything else. [The accused] said, I did not do those things.

Defence counsel then continued by referring to such basic and conventional matters as the Crown having to prove the case beyond a reasonable doubt and the accused not having to prove anything.

After that, the video recording of the special hearing was played to the jury.

The next day (4 December 2008), and in the absence of the jury, the prosecutor said to the judge that it was the Crown’s understanding that the defence in the case was that the activities complained of in respect of each count simply did not occur. The prosecutor said that the Crown did not understand from the cross-examination of the complainant that it was suggested that the complainant and the accused were not together on the occasions that the offending was alleged to have occurred. The Crown did not understand defence counsel to be running the defence of impossibility viz ‘I wasn’t there at the time’. The Crown understood that what was being said was ‘I was there, but nothing happened’. Defence counsel then told the judge that, in relation to counts 1, 2 and 3, it was denied that the accused was at the house – he was not present and did not sleep at the house on those nights. He said, in relation to counts 4 and 5, that the accused denied ‘that he ever went there in a car’. Counsel said, in relation to count 6, that it was denied that the accused met the complainant at the shopping centre in the toilet on that day. In relation to counts 7 and 8, defence counsel said that the accused denied going into the bedroom with her alone and further that he wasn’t there on the day alleged.

The prosecutor responded to these statements to the judge by saying, inter alia:

I do not recall it ever being suggested to her that the accused man was not at the house on the 2^nd and 3^rd (ie counts 1, 2 and 3), that he was not at the grandmother’s address on the particular occasion that the phone call was made and he turned up (ie counts 4 and 5), and my recollection is that it was never put that he was not at [the shopping centre] (ie count 6) and further that he was not at the house on the last occasion (ie counts 7 and 8). So that may well give rise to a Browne v Dunn situation.
(The discussion continued concerning the absence of an alibi notice and some other matters).

After the foregoing discussion, the Crown called the grandmother of the complainant (she was also the applicant’s grandmother) to give evidence. It was from her house that the complainant alleged she had been picked up in a white car by the applicant. On cross-examination her evidence was tested by defence counsel – in particular it was suggested to her that she would have heard a car tooting a horn if that had happened.

The next witness called by the Crown was RB, the partner of the applicant. RB said that on 11 August 2006 she had given birth to a son and that the applicant was the father. She said that in June 2006 (relevant to counts 1, 2 and 3) the applicant was living with her and stayed there with her all the time. She said that he did not at that time stay at his mother’s house that she could remember and did not spend any nights at his mother’s house that she could remember. In the absence of the jury, the prosecutor then raised with the judge that RB’s evidence was inconsistent with evidence that she had given in a statement to the police to the effect that she did not know where he stayed that night (ie 2 June) and that he sometimes stayed at his mother’s place. After some discussion and the holding of a voir dire, the judge gave the prosecutor leave to tender RB’s statement and leave to cross-examine her on the basis that she was a hostile witness. Pursuant to that leave the statement was tendered and the witness was cross-examined by the prosecutor as well as by defence counsel, before the jury. The question of whether the applicant had stayed at his mother’s place on the dates in question was agitated with the witness by both counsel. While maintaining that the applicant was with her on the occasion or occasions in question, she gave a number of answers which would have had to be assessed by the jury.

The next Crown witness to give evidence was the complainant’s brother, DR, who testified as to matters which generally supported the complainant’s version of what had occurred while they were both living with their grandmother and the applicant was said to have picked her up in a car driven by him. The complainant’s brother was cross-examined by defence counsel who tested his evidence but did not put to him that the events had never happened or that the applicant had never arrived in a car on the occasion in question or picked up his sister on such occasion.

Later, on the next day of the trial, the Crown called Detective Senior Constable Steele who had, among other things, interviewed the applicant on 19 February 2007. The record of interview was not tendered in evidence but certain questions and answers were read to Mr Steele for his confirmation as follows:

On 2 June 2006, [the complainant] said she stayed at your house and he replied to you, ‘Which house was that?’ And you said, ‘The house in [X Street].’ And he said, ‘In June I wasn't living there.’ Your question, ‘Tell me where you were living?’
‘[Y Street] with my girlfriend.’ ‘What is her name?’ ‘[B].’ And you say, ‘[B].’ And he said, ‘I used to stay with her probably four nights a week - three nights a week.’ And question, ‘And how do you know on the night of 1 June that - - -?’ And he said, ‘I don't know, I wasn't there, mate’?---That's correct.
That's what he said to you. Then you dealt with it again, and I'll just refresh your memory. And this is, Your Honour, Question 40 or thereabouts. ‘OK’, you asked him, ‘OK, who lives at [X Street]?’ And he said, ‘My mother, [RK].’ And you said, ‘Anyone else?’ ‘My father [DK], my brother [JK], my sister [SK] and [AS].’ Question, ‘And how many bedrooms?’ And then he said, ‘And probably [TM].’ And he said, ‘Who's is he?’ ‘My sister's boyfriend who she is pregnant to.’ ‘All right, and how many bedrooms are at the house?’ ‘Three.’ ‘And whereabouts is your bedroom in the house?’ ‘Never have - never had one, I don't have one.’ ‘When you sleep there where do you sleep?’ Answer, ‘In the lounge room.’ ‘Is there a bedroom down the back of the house near the laundry?’ ‘Yes.’ ‘And who uses or who in June 2006 was sleeping there?’ ‘Don't know.’ ‘Have you slept in that room.’ ‘Yes.’
And then you take the topic up once more with him amongst other things, and this is at 259, ‘And just going back to that first part which relates to around when [C] had the overdose and lost his leg when he was found that morning by [the complainant], do you remember where you were?’ Answer: ‘I was at my mother's because I got the phone call from me mother's and I heard me mum bawling on the phone and I've woken up and I've gone out.’ ‘So did you stay at your mum's that night?’ ‘Yes. I was at my mum's and my mother can verify that because I started bawling and I started punching holes in the wall.’ ‘And did you go down to the hospital that day to see him?’ Answer: ‘That day?’ ‘Yes?’ ‘Yeah, late. Probably I went - me girlfriend picked me up and I went down to the hospital at about lunchtime after lunch and then me girlfriend picked me up and took me back to her place.’ Question: ‘So where did you stay that night?’ ‘Me girlfriend's.’ Question: ‘Your girlfriend's?’ Answer: ‘Yeah, I believe so.’ And they're the responses he gave to some of the questions that you asked?---That's correct, yes.

In cross-examination further questions were asked in relation to the interview and a further extract from the record of interview was read to Mr Steele as follows:

In his response to you - and he answered in total some 307 questions that you put to him?---Yes.
Right throughout that interview with him he denied anything to do with [the complainant] in relation to a sexual event?---Yes.
In fact, at Question 301, you asked him, ‘Anything you want to say?’ Have you got that?---Yes.
Could you just tell the court and members of the jury, what he said when you put that to him?---‘Anything you want to say, [KC]?’ ‘It never happened, Mr Steele, it never has happened, never did happen. I would never ever be with my cousin, that is my cousin, and I do love her to bits, do you know what I mean, as my cousin, as a family member, and I love my uncles and that, but I've only been with my girlfriend and I believe they're doing this to me because of the fact they're fighting with my mother - with my mother and that they are - with my mother and that - they couldn't get a decent fight out of her. Mum went and put a restraining order and then they have done this.’

The applicant did not give evidence on his own behalf and only one defence witness was called, namely JB (the mother of RB). Shortly stated, her evidence was called in relation to the question whether it would have been possible for the applicant to have driven her white Mazda 323 motor car on the occasion relevant to counts 4 and 5.

After the defence case had closed, there was some further discussion between counsel and the judge concerning particular directions the judge might give. In dealing with a draft direction prepared by the judge in relation to the hostile witness and inconsistent statement matter, her Honour referred to ‘the original Judge Kelly direction’ and the ‘Criminal Trials directions’[2] (hereafter ‘Tilmouth’). Her Honour indicated that it was a draft and not a final version. Defence counsel said that he had read it and did not have a problem with anything in it.
[2]I take this to be a reference to Butterworths, Australian Criminal Trial Directions, by Sydney Tilmouth .

After some further discussion, the judge raised again the question of what position the defence had taken, stating:

… given the position that we understand now that the defence has taken, namely that he wasn’t there, not that he just didn’t do it, he wasn’t there which is a matter that wasn’t ever put to [the complainant]. It was put to her, ‘these things never happened’ but not that he wasn’t there therefore it couldn’t have happened.

The prosecutor replied that in his submission that would require a Browne v Dunn direction, adding that no witness was ‘questioned about that’ and that ‘it has to be put squarely to the person who you’re using it against and that’s the complainant in this matter’. Defence counsel responded:

Your Honour, it has always been the defence case that it didn’t happen. It was never put to [the complainant] that he wasn't there. Because the dates about that are - I was going to use the word nebulous but apart from 1st and 2nd the rest of the dates seem to be not locked down and that explains the between-dates on the presentment. [The accused] is not in a position to say, ‘I wasn't there’ because we are dealing with family here and certainly, people visit families. So for him to say, ‘I wasn't there on a day when this has allegedly occurred’, he's not in a position to say that.

The judge then said that it was only in relation to 2 June that the applicant said in his record of interview that he wasn’t there and that he wasn’t clear about 3 June. The judge said that the other two occasions (the car and the shopping centre) were specific occasions and it was quite unclear as to whether the accused was saying he did see her on either of those occasions but nothing happened or he wasn’t there. Her Honour said it was unclear and although it hadn’t been put to the jury the prosecution certainly understood that it was the defence case that he actually wasn’t present physically on any of the occasions. Defence counsel replied that the defence was always that it didn’t happen although it had not specifically been put to the complainant that he wasn’t there on the day but that (he said in substance) that was what was conveyed. Defence counsel said that he resisted the suggestion that there should be a Browne v Dunn warning, that it would be confusing to the jury and it might be prejudicial to his client. After some further discussion defence counsel said that it was ‘a matter of weight’ and there the matter was left.

On the following day (9 December 2008), defence counsel again raised the Browne v Dunn issue. Defence counsel submitted, after referring to Tilmouth, that there was no material allegation made by the accused in the trial that had not been put to the complainant. After referring to another passage in Tilmouth, which stated that in the case of a glaring and obvious omission the jury might ask whether this indicated recent invention of those material allegations, defence counsel said that from day one the accused said it didn’t happen and that he had ‘not made any other allegations or any other evidence put forward in support of some defence’. Defence counsel went on to quote further passages from Tilmouth dealing with the many explanations for the failure to cross-examine on particular matters. Defence counsel then submitted that:

… there was no cross-examination because there was no allegation which was subsequently put. And the rule in my submission is fundamental to the right of an accused to silence.
…
The defence that my client used was, ‘it never happened’. That is, ‘I deny the allegations put to me. I deny the facts of the allegations. That’s my defence. He does not have to do more than that, in my respectful submission, and the other troubling part of this whole process of the Browne v Dunn that was discussed yesterday was this; Your Honour recalls that you asked me to clarify for my client whether he was saying that he wasn’t there or whether he was saying that he was there and it didn’t happen. In doing that, Your Honour, my client has been asked the question from the dock. He’s been asked the question to explain something. (He then referred to the right of silence and continued).
So there was no compulsion, in my submission, for [the accused] to proffer any explanation or reason and in so doing he actually, in my submission, did something he didn’t want to do. That being the case, Your Honour, to use that now of what was asked of my client, and he can take the view that it was forced upon him, forced to say, ‘I wasn’t there or I was there’, he was forced to give that explanation, to use that now to say ‘he says he wasn’t there’. Did he ask through his counsel, was that put to any of those witnesses, that he wasn’t there? Because he never raised that as a defence. He’s never raised that in his record of interview, in his explanations or in his formal defence to the Crown opening. (Emphasis added)

The judge responded, inter alia, that it did appear in his answers from the record of interview that he wasn’t there, certainly in relation to 2 June. There followed a debate with defence counsel about why the owner of the white car had been called – again defence counsel reiterated that the accused did not have to prove anything. Her Honour then said that it was clear, in relation to counts 1 and 2, that the defence was saying he wasn’t there – that was the evidence of the accused through the record of interview. In relation to 3 June her Honour said that it was unclear what he was saying or what was being said, if anything. The shopping centre incident and the last two counts were either unclear or he said nothing about where he was. Her Honour said that the car incident fell into a different category because the defence called a witness to say it couldn’t have been my car – the only purpose for that was to cast doubt on the accused having been there. Defence counsel responded that these were matters for the jury and he concluded by submitting that it would be an error to raise Browne v Dunn in front of the jury and could only prejudice the accused.

After further submissions, her Honour said that she considered that Browne v Dunn was a live issue directly in relation to counts 1 and 2, and indirectly in relation to counts 4 and 5 and ‘that in my mind directly invokes the rule and raises it indirectly in relation to the other counts’. Closing addresses were then made to the jury. The prosecutor said to the jury that the defence of impossibility had never been put to the complainant. He said that it was never once suggested to her that the accused was never there and that the complainant did not have an opportunity to deal with that allegation - that was unfair and the judge would tell them what the rules were in that regard.

Defence counsel then addressed the jury and criticised the Crown evidence and in particular the evidence of the complainant and what he contended were inconsistencies in her evidence. At no stage did defence counsel state expressly to the jury that they should have a reasonable doubt as to whether the applicant was physically present on any of the occasions alleged. Nor did he suggest indirectly that the jury should have a reasonable doubt as to this except to the extent that he contended that the jury should accept the evidence of RB relating to the issue of his whereabouts on 2 and 3 June.

On the hostile witness point, the judge directed the jury as follows:

However a judge has a discretion in some cases to permit cross-examination by a party of their own witness. The witness, [RB], was allowed to be cross-examined by the prosecutor, … in consequence of a ruling that I made that such witness could be treated as adverse or hostile. I made such ruling on the basis of both the demeanour of the witness when giving evidence and in particular the fact that her earlier statement made to police appeared to contrast sharply with the evidence which she gave in this trial.
These circumstances gave rise to an apprehension that [RB] was deliberately withholding material evidence by reason of an unwillingness to tell the truth at the instance of the party calling her. There are two things which ought to be said about this.
First the fact that [the prosecutor] exercised the right I gave him to cross-examine [RB] indicates that [he] does not put her forward as a witness of truth but as one from whom the truth, if you like, must be extracted, if at all, by cross-examination.
Second whilst you may bear in mind [the prosecutor’s] attitude to [RB] and my allowing the cross-examination, in the long run it is for you, not [he] nor I, to determine the truthfulness and accuracy of a [witness’] account. You the jury are the judges of this as of all factual matters.
[The prosecutor] cross-examined [RB] about the contents of the prior written statement which she had made to police. In particular she was asked about her statements concerning where the accused was staying prior to and on the night when [the complainant’s] father was taken to hospital. I will come to this evidence in detail in a moment.
[The prosecutor] says to you to the effect that [RB] has changed her story to protect the accused, being his partner and knowing how critical it is to effectively provide him with an alibi. [Counsel] for the accused says to the effect that [RB] was somewhat confused and did not pay sufficient attention to her answers when making her earlier statement and she has now had more time to think about it. [Defence counsel] says you should accept that she told the truth when giving evidence in this court.[3]

[3]Emphasis added.

On the application of the rule in Browne v Dunn, the judge directed the jury as follows:

Members of the jury it was never put to [the complainant], under cross-examination, that the accused was never at the locations when she alleged the offences were committed. That is, it was only put to her that the sexual assaults never happened. By her evidence, [the complainant] was of course necessarily, saying that the accused was there and that he committed the sexual acts alleged.
These comments are particularly relevant in the case of Counts 1 and 2 on 2 June, when the accused said in answer to a question from police, that he stayed with his girlfriend that night, and Counts 4 and 5, the allegations in the car where the defence has sought to rely upon evidence of [MR] and [JB]; that's the mother of [RB], to the effect that he could not have been there that night.
It was also never put to [DR], the brother of [the complainant], that he never saw the accused at [Z Street] on the night the accused is alleged to have taken [the complainant] for a ride in the car. Counsel for the accused under cross-examination, did not therefore give [the complainant] the opportunity to respond to the assertion that the accused was never there. That is, not with her on any of the occasions or any particular occasion when sexual acts are alleged, so that he could not have committed any of the alleged acts.
I should tell you that there is a rule of conduct which requires counsel who propose to lead evidence of a material fact or rely upon a particular factual circumstance, to put that fact in cross-examination, to any witness who might be expected to be able to confirm or deny the evidence, in order to give the witness the opportunity to confirm it or deny it.
It is an important rule because it exists in order to enable you better to compare the evidence of one witness with that of another. It may be that if the allegation had been put in cross-examination, the witness would have shown by their words or demeanour, that the witness agreed with it. On the other hand it may be that the witness would have made a devastatingly effective denial of it. The failure to cross-examine about the matter deprives you of the opportunity of seeing what reaction the witness would have had to it.
Failure to comply with the rule may occur for a number of reasons; some innocent and some sinister. Sometimes the failure occurs by mistake. Counsel simply forget to ask the right questions or has not perhaps understood their instructions from their client. Whether this explanation exists of course, probably depends on the seriousness or significance of the allegation.
Sometimes it would be merely a waste of time to cross-examine about the allegation because it is apparent from the rest of her evidence that she is denying it. Sometimes it may be that the witness's own account is so incredible that the most effective cross-examination would be to make none at all.
Sometimes on the other hand, it is plain that if the allegation were true, fairness dictates that it should have been put to [the complainant] or [her brother]. In that case you might well wonder why it was not put and you would be entitled to think that the real reason it was not put is that it has been invented after they gave evidence. In such a case you are entitled to use the failure to put the allegation to the complainant or [her brother], as a reason for doubting its truth.
Of course a failure to put the allegation cannot of itself, disprove the allegation, nor can it have the effect of proving any element of the crime or crimes which still require to be proved beyond reasonable doubt. The only effect it can have is that of enabling you to form a view of the evidence which has been given, enabling you more readily to accept evidence because the contrary assertion was not put to the witness, or enabling you to reject the assertion because it was not put to a witness who could have denied it. (Emphasis added).

In addition to the above directions, I note that the judge said to the jury during the course of summarising the prosecution evidence that the response of the accused in relation to all of the counts of indecent acts was that ‘none of it ever happened’[4] and, in relation to the count of rape, that ‘[t]he accused in his answers to police simply said that none of the alleged acts ever took place’,[5] and that ‘he simply says the act of sexual penetration never happened’.[6]
[4]T 430.
[5]T 439.
[6]T 440.

Finally the judge told the jury how they might deal with the evidence ‘led by consent of the parties from [Mr Steele] … as to certain answers which the accused gave to questions asked of him by police on 19 February 2007’. In the course of giving those directions the judge read again to the jury the questions and answers which had earlier been read to them by either side during Mr Steele’s evidence.[7]
[7]This confirms that the jury did not have access to the whole record of interview and that this apparently occurred pursuant to an agreement between counsel.

Ground 1 - submissions

The applicant submitted that in the foregoing circumstances the rule in Browne v Dunn did not apply and the judge should not have given the jury any direction in respect thereof (nor should the prosecutor have addressed the jury thereon). Alternatively, the applicant submitted that the directions given by the judge had gone too far in any event. In particular, it was submitted that the part of the directions in which the judge suggested that the jury would be entitled to think that ‘the real reason it was not put is that it has been invented after they[8] gave evidence’, was factually wrong and erroneous and had given rise to a substantial miscarriage of justice because it would have had a devastating effect upon the jury’s consideration of the defence case. Further, it was submitted that the passage in which the judge had suggested to the jury that the ‘failure to put the allegation’ enabled the jury more readily to accept the prosecution evidence or enabled the jury to ‘reject the assertion because it was not put to a witness who could have denied it’.
[8]ie the complainant and DR.

In response, the respondent submitted that the rule in Browne v Dunn had indeed been infringed. However, the respondent conceded that the directions given by the judge in relation to ‘recent invention’ were erroneous. Senior counsel for the respondent said that whether those erroneous directions amounted to a substantial miscarriage of justice ‘might be another issue’ but she said that ‘at this stage’ the respondent was not making a submission about the proviso.[9] However, she later submitted that because the erroneous directions occurred in the middle of directions that were otherwise accurate, then maybe it was something that the jury would not have taken too much notice of and, in that case, the proviso would apply. Senior counsel for the applicant, in reply, submitted that the proviso could not apply having regard to the ‘devastating’ effect that the direction as to ‘recent invention’ (apart from any other aspect) would have had on the defence case. I will consider later below whether the proviso might be applied.
[9]Section 568(1) of the Crimes Act 1958 (Vic), now repealed, still applies to this trial as the sentence was imposed prior to 1 January 2010.

Ground 1 - authorities

It is useful to refer to a number of the authorities, starting with Browne v Dunn itself in which Lord Herschell LC said:[10]

… I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy or credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

[10](1893) 6 R 67, 70-71.

Lord Halsbury agreed with Lord Herschell saying:[11]

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

[11](1893) 6 R 67, 76-77.

In R v Hart[12] Lord Hewitt CJ said:[13]

In our opinion, if, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness-box or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted. Here no questions were asked in cross-examination.

[12](1932) 23 Cr App R 202 (Court of Criminal Appeal (Hewitt LCJ, Swift and Macnaghten JJ)).

[13](1932) 23 Cr App R 202, 207.

That statement of course related to the position of the prosecution but it is to be noted that, in a case where no questions were asked of the relevant witness, the Lord Chief Justice thought it would have been appropriate that the witness be challenged in the witness box or at least that it should be made plain, while the witness was in the box, that his evidence is not accepted. Again, in O’Connell v Adams[14] the Court said that if it was part of the client’s case to challenge a witness as not speaking the truth at a trial on indictment, the professional advocate had to put the matter fully and fairly to the witness and, if that was not done and the advocate in his speech tried to rely on the falsity of the witness’s evidence, the Court should check him at once.[15]
[14][1973] Crim LR 113b (Queen’s Bench Divisional Court: Lord Widgery CJ, Willis and Talbot JJ).
[15]The statement in O’Connell v Adams was contained in a ‘brief note’ that was referred to by Burnton J in R (on the application of Wilkinson) v DPP [2003] EWHC 865 who said that the statement was consistent with general principles.

In a civil case, Deepak Fertilizers & Petrochemical Ltd v DavyMcKee (UK) London Ltd[16] the English Court of Appeal said that the general rule in adversarial proceedings, as between the parties, is that one party should not be entitled to impugn the evidence of another party’s witness if he has not asked appropriate questions enabling the witness to deal with the criticisms that are being made.
[16][2002] EWCA Civ 1396 (Brooke and Latham LJJ and Hart J).

In R v Birks[17] the then Chief Justice of New South Wales said:[18]
[17](1990) 19 NSWLR 677 (Gleeson CJ, McInerney J and Lusher AJ).
[18](1990) 19 NSWLR 677, 686-689.

It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent's witness the matters in respect of which, or by reason of which, it is intended to contradict the witness' evidence. (The rule is discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16.) The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious.

(After quoting from Browne v Dunn his Honour continued)
It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created.
Browne v Dunn was a civil case. There are some obvious difficulties concerning the operation of the rule in criminal trials. The notion of fairness, whilst it has relevance to criminal as well as to civil proceedings, may have a somewhat different practical content in a criminal trial. … It is quite common for an accused person at a criminal trial, whether represented or unrepresented, and whether in evidence or an unsworn statement, to come out with a version of the facts that has not been put to the Crown witnesses. This might well provide an appropriate subject for comment, but, for reasons that will be expanded below, there may be need for some care in the formulation of the appropriate comment.
…
(His Honour referred to what was said by Lord Lane CJ in R v Fenlon (1980) 71 Cr App R 307 as to how a witness should be cross-examined so as to satisfy the rule, and who said that ‘It need not be done in minute detail, but it is the duty of counsel to make it plain to the witness … that his evidence is not accepted and in what respects it is not accepted’.)
However, whilst the rule does apply in this State in criminal as well as civil proceedings, its practical content needs to be related to the circumstances of the particular case, and one important circumstances may be that what is involved is a criminal trial.
…
The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. In a judgment of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, his Honour said (at 236-237):
‘This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness's evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. …’

…

In MWJ v R[19] Gleeson CJ and Heydon J confirmed that the rule applied in criminal proceedings and referred with approval to R v Birks saying that it was a principle that might need to be applied with some care when considering the conduct of the defence at criminal trial and that the consequences of a failure to cross-examine on a certain issue might need to be considered in the light of the nature and course of the proceedings. In the same case, Gummow, Kirby and Callinan JJ said:[20]

The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.
One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, 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. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination.
…
Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. 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.
…
The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.

[19](2005) 222 ALR 436, 440-441.

[20](2005) 222 ALR 436, 448-449 (citations omitted).

In R v Baran[21] Buchanan JA (with whom Vincent and Eames JJA agreed) considered that there were a number of material matters that were not put on behalf of an accused to a complainant and his Honour said that he did not consider that ‘the applicant’s obligation to put the complainant on notice in cross-examination of the challenges to her account [that] he would make in his evidence was absolved by the contents of his record of interview’.[22] However, his Honour held that the judge had erroneously directed the jury that the defence failure to put matters to the complainant of which the applicant later gave evidence entitled the jury to think that the real reason it was not put was that it had been invented after the complainant gave evidence. His Honour said that it was clear in that case that the jury was not entitled to so conclude having regard to what he had said in the record of interview. His Honour concluded that the judge’s invitation to the jury to draw such inference, that may well have led the jury to disbelieve the applicant, constituted a substantial miscarriage of justice notwithstanding that his counsel had failed to take exception to it. I note that, unlike the accused in Baran, the accused did not give evidence in the present case.
[21][2007] VSCA 66.
[22][2007] VSCA 66, [21].

In R v Thompson[23] Redlich JA said:[24]

The rule in Browne v Dunn is a rule of law and practice. 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 rests upon notions of fairness. It 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. 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. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.
Where in breach of the rule, 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.

[23](2008) 21 VR 135.

[24](2008) 21 VR 135, 157 (citations omitted).

In that case, also, Redlich JA said that allegations of recent invention were potentially devastating to the credibility of the witness against whom they were made.

In R v Morrow,[25] Redlich JA, in relation to breach of the rule, said:[26]
[25][2009] VSCA 291.
[26][2009] VSCA 291, [47]-[50].

The rule inBrowne v Dunnis a ‘rule of law and practice’, sometimes described as a ‘rule of professional practice’.[27] In Rees v Bailey Aluminium Products Pty Ltd this Court recently said:
The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be 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. The rule rests upon notions of fairness and is designed to give the witness and the party calling that witness an opportunity to meet that challenge. The rule facilitates the tribunal’s assessment of the reliability and accuracy of the witness. Consequently if matters in controversy are not ‘put’ to the witness in cross examination the tribunal’s capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.[28]

The rule also applies to a criminal trial. The rule, resting upon notions of fairness, 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. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness[29] and diminishes the tribunal’s capacity to assess the merits of the issue.[30]
It is not always clear how far counsel must go in putting their case to avoid complaint that they have not met the minimum obligations arising under the rule. The extent of the obligation will be informed by the nature of the case to be presented by the cross-examiner. If it involves no more than a denial of the evidence of the witness, the ‘puttage’ may be of relatively short compass. Plainly the extent of the obligation will differ where a positive case is to be subsequently advanced. If the ‘essential elements of the eventual case’ are not put to the witness who may caste doubt on them, a fair trial may be jeopardised and adverse comment expected. But it will often be a matter of impression and interpretation as to whether what counsel has put sufficiently conveys the substance of the evidence subsequently to be given.[31] Bald ‘puttage’ will be sufficient only where it can be said that no unfairness arises from the absence of any further identification of the substance of the matters in controversy.
Where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features which may include the time, place and circumstances of the occurrence. As Hunt J stated in Allied Pastoral Holdings Pty Ltd v FCT,[32] the cross-examiner must not only disclose that ‘the evidence of the witness is to be challenged but also how it is to be challenged’.[33] The detail in which an event is described will often lend an air of verisimilitude to the allegation. Fairness dictates that the witness against whom the allegation is made must have an opportunity to respond to the detail which may give life and colour to the allegation. It affords the witness the opportunity to explain or qualify their own evidence and the evidence upon which the challenge is to be based.[34] A witness, once appraised of the essential features of the allegation, may be more readily able to accept or reject it. The detail may enable the witness to recall that which may otherwise not be remembered. By resort to that very detail the witness may be able to cogently reject the allegation.[35] It may enable the witness to explain why the event could not have occurred in the way alleged. By identifying the features of the occurrence, the party calling the witness may appreciate that corroborative evidence is available to rebut the attack. None of this is to place an unduly onerous burden upon cross-examining counsel.

[27]R v Demiri [2006] VSCA 64, [35].

[28][2008] VSCA 244, [21] (citations omitted).

[29]R v Thompson (2008) 187 A Crim R 89, [111].

[30]Curwen & Ors v Vanbreck Pty Ltd [2009] VSCA 284, [26].

[31]R v Manunta (1990) 54 SASR 17, 23; R v Foley [2000] 1 Qd R 290, 291.

[32][1983] 1 NSWLR 1.

[33]Ibid.

[34]Ibid.

[35]R v McDowell [1997] 1 VR 473, 479.

In the same case, Redlich JA, after referring to MWJ v R, spoke of the consequences of non-compliance with the rule as follows:[36]
[36][2009] VSCA 291, [59]-[64].

The failure to cross-examine in accordance with the rule does not mean that the evidence led in contradiction of the evidence that should have been challenged cannot be considered.[37] It is a matter of weight for the court to take into account.[38]
[37]A trial judge is not entitled, by reason of non-compliance with the rule, to withdraw an issue of fact from thejury: R v Rajakaruna (No 2) (2006) 15 VR 592.
[38]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, [14].
Ordinarily, a failure to put to the witness the substance of the evidence which is called in contradiction of the witness or to otherwise impugn the witness, will bear upon the weight to be attached to such evidence or the inferences that flow therefrom.[39] Where the tribunal of fact is a jury and the trial judge has concluded that there has been non compliance with the rule, the jury may be told that the failure bears upon the weight they attach to the allegation of fact that was not pursued with the relevant witness or the argument which rests upon that fact.[40] The direction given by Kaye AJA in R v Ferguson; R v Sadler; R v Cox,[41] quoted with apparent approval by this Court, well illustrates the point:
[39] Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; Bulstrode v Trimble [1970] VR 840, 846; R v McDowell [1997] 1 VR 473, 482; White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, 216–9; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134, 147; Pegela Pty Ltd v National Mutual Life Association of Australasia Ltd [2007] 14 ANZ Ins Case 90–131.
[40]R v McDowell [1997] 1 VR 473, 482; MJW v R (2005) 222 ALR 436.
[41][2009] VSCA 198.
But if you consider that the matter was not fairly put in a way which would have given the Crown an opportunity to respond, either by calling witnesses or re-examining witnesses, then you can take that into account of course in weighing the argument made to you in final address by counsel for both accused. Because in that situation if you think the matter was not fairly raised with Crown witnesses in a way that put the Crown on notice, you would have an argument which the Crown has not had the opportunity to respond to. Now, that just goes to a matter of weight of the argument.[42]
[42]Ibid [269].

It was a matter for the trial judge, whether he thought it necessary to draw to the jury’s attention that the complainant had not been given the opportunity to respond to the evidence to be led from the applicant or the argument which counsel intended to advance in closing address. He was entitled to tell the jury in strong terms that the failure to put these matters to the complainant could be taken into account by the jury in assessing the weight to be given to those parts of the applicant’s evidence that had not been explored with the complainant and the argument that rested upon that evidence.[43]
[43]R v Nicholas (2000) 1 VR 356, [128]–[146], especially [140]–[143]; R v Rajakaruna (No 2) (2006) 15 VR 592.
Where the breach is said to affect the credibility of a party or witness
In this case the trial judge did not, in directing the jury, confine himself to the weight that might be attached to the evidence or argument in support of the allegation. He instructed the jury that the failure to put such matters enabled the jury to reject the applicant’s assertions and more readily accept the complainant’s evidence on what were important factual issues.
Dealing with the circumstances in which breach of the rule may lead to the drawing of inferences adverse to the party in breach, Gleeson CJ in R v Birks[44] said:
It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of 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. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution.[45]

In R v Manunta King CJ expressed concern about the prominence given to the Browne v Dunn issue in the trial judge’s summing up. He said that:
It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to thejury, thejury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of thejury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with thejury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to thejury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.[46]

[44](1990) 19 NSWLR 677.

[45]Ibid 690–691.

[46](1990) 54 SASR 17, 23.

In the same case, Nettle JA said:[47]
[47][2009] VSCA 291, [2]-[6].

I wish only to add the following to what his Honour has said in his reasons concerning the application of the Rule in Browne v Dunn.[48]
In this case defence counsel failed to comply with the rule by omitting to put to the complainant in cross-examination the substance of evidence which the applicant later gave as to the timing and circumstances of the episodes of sexual intercourse which he admitted that he had with the complainant. It followed, as Redlich JA observes, that it was open to the trial judge to direct the jury that they could take the lack of puttage into account in assessing the weight to be attached to the applicant’s evidence on those matters.
So to say, however, does not mean that it is generally appropriate for a trial judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the accused. In recent times there have been a number of appeals in this court in which it has appeared that trial judges regard the making of adverse comments as necessary or desirable whenever there is a failure by defence counsel to comply with the rule. Such an approach is misplaced. As the decision of the High Court in MWJ v The Queen[49] makes clear, the rule in Browne v Dunn does not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings[50] and, consequently, its application requires considerable care and circumspection.
In R v Foley[51] the Queensland Court of Appeal observed that:
There are of course ways and means of avoiding the necessity of presenting such issues to juries at the end of the trial. Sometimes it is possible to have a witness or witnesses recalled for cross-examination. … Sometimes the reason for the omission is itself explored at trial, and if it can be seen that the omission reflects only on counsel (or solicitor) and not the accused, then the only available comment would relate to the potential disadvantage to the witnesses or to the Crown’s case from the omission, with an express statement that this was not the fault of the accused but rather of counsel.[52]

With respect, I entirely agree. In view of what has fallen from the High Court in MWJ, I suggest that any criminal trial judge who is faced with a breach of the rule in Browne v Dunn would be well advised to treat the above stated observations in R v Foley as his or her starting point, and indeed as the approach beyond which it will seldom be desirable to go.
[48](1893) 6 R (HL) 67.
[49]MWJ v The Queen (2005) 222 ALR 436.
[50]Ibid, [18] (Gleeson CJ and Heydon J), [40]–[41] (Gummow, Kirby and Callinan JJ).
[51][2000] 1 Qd R 290.
[52]Ibid 292; see also R v Manunta (1989) 54 SASR 17, 23 (King CJ); R v Birks (1990) 19 NSWLR 677, 690-1 (Gleeson CJ); R v Laz [1998] 1 VR 453, 464; R v Nicholas (2000) 1 VR 356, 410 [143]; R v Thompson (2008) 187 A Crim R 113, [120]; R v Rajakaruna (No 2) (2006) 15 VR 592, 608 [52]–[53].

Ground 1 – conclusions

The present case is one where the witness, here the complainant, was to some extent challenged in the witness box.

Trial counsel put to the complainant, in relation to counts 1, 2 and 3, that ‘it never happened’. This was ambiguous because the cross-examiner did not make clear whether it was being put that the accused was not there or merely that he had been either in the house or in the bedroom but that the events described by the complainant had not happened. On the other hand, it would seem highly probable that had an additional question or questions been put, the complainant would simply have repeated (as she had twice already) that what was put to her ‘was not true’. It is unlikely, although it cannot be discounted entirely, that the jury would have gained any additional assistance from seeing the complainant further cross-examined along those lines, on the video recording.

In relation to counts 4 and 5, trial counsel put to the complainant that she had ‘made that up, it didn’t happen’ (to which she replied that it did happen). I do not think that this question was really ambiguous in the circumstances of this case – it was realistically only capable of one interpretation, namely, that the complainant’s story that the accused had picked her up in a car and committed the alleged offences was all ‘made up’. Although it is clear that the whole of the complainant’s evidence was being challenged on these counts, it would have been preferable for it to have been put to her that he did not on any date, in the circumstances described, pick her up in the car at all. Again, I think that it is unlikely that the jury would have gained any additional assistance from seeing the complainant repeating her assertion that ‘it did happen’. I would analyse the cross-examination of the complainant in relation to counts 6 and 8 in the same way as above in relation to counts 4 and 5 – trial counsel made clear that it was being put to her that it ‘didn’t happen at all’ and that she ‘made that up’.

Further, the analysis cannot end with what questions were or were not asked of the complainant. It is necessary to examine whether, in the subsequent conduct of the defence, facts or propositions were advanced that had not been ‘fully or fairly’ put to the complainant.

In relation to counts 1, 2 and 3, I think that the questions advanced by defence counsel in cross-examination of RB and the matters put in evidence by way of the extracts of the record of interview were such that the failure by him to put to the complainant that the accused was not present on the nights in question was a breach of the rule in Browne v Dunn, although not a particularly serious breach given that it had been put to the complainant, albeit ambiguously, that ‘it never happened’.

In relation to counts 4 and 5, apart from JB being called by the defence in an endeavour to establish that a particular car could not have been used on the night (or any night) in question, no positive case was put forward by the defence either by way of evidence or in final address that needed to be put to the complainant. However, given that it had been put to the complainant that she had ‘made that up, it didn’t happen’, it would have been appropriate to challenge the complainant’s brother concerning his evidence about the accused picking up the complainant in his car. Nevertheless, the breach of the rule in Browne v Dunn might be described in those circumstances and in the context of a criminal case as somewhat technical.

I consider that there was no breach of the rule in Browne v Dunn in relation to counts 6 and 8. No positive evidentiary case was advanced by the defence and no relevant propositions were put forward in final address.

In the light of the foregoing, I think that any breach of the rule in Browne v Dunn, apart perhaps from counts 1, 2 and 3, was relatively minor, particularly having regard to the onus of proof that rested upon the Crown at all times. It would have been preferable if neither the judge nor the prosecutor had referred to any breach of the rule.

Further, turning to the judge’s charge, it seems to me, with respect, that there were in any event a number of errors made by the judge in her directions to the jury. The cases to which I have above referred emphasise that it is necessary to guard against overstatement of the consequences of any breach of the rule in Browne v Dunn and to take into account the position of the accused in a criminal trial and the particular circumstances relating to the conduct of the case in question.

In my opinion, it was inaccurate and unfair to say to the jury that it was never put to the complainant that the accused was never at the locations where and when she alleged the offences were committed, without at least reminding the jury what in fact had been put to the complainant in cross-examination in relation to counts 4, 5, 6 and 8 – not only that ‘it didn’t happen’ but that she had ‘made that up’ or that it didn’t happen ‘at all’.

More generally, given the conduct of trial counsel including the very non-specific content of his final address, it was inappropriate to go so far as to suggest to the jury that the rule had been infringed by defence counsel for the reason that the rule ‘requires counsel who propose to lead evidence of a material fact or rely upon a particular factual circumstance to put that fact in cross-examination, to any witness who might be expected to be able to confirm or deny the evidence’, in circumstances where defence counsel had not in truth led evidence of such a material fact or relied on particular factual circumstances (perhaps with minor exceptions).

Next, as the Crown conceded, it was erroneous to suggest to the jury that they were ‘entitled to think’ that the failure to put any relevant allegations to the complainant or her brother might be explained by their having been invented after the complainant and DR had given evidence, given the challenge that had been made to the complainant’s evidence in cross-examination at the special hearing. I note also that the suggestion of recent invention was inconsistent with the extracts from the record of interview put in evidence before the jury.

Finally, I consider that the judge went too far in directing the jury that the failure to comply with the rule had the effect of enabling the jury ‘more readily to accept evidence because the contrary assertion was not put to the witness, or … to reject the assertion because it was not put to a witness who could have denied it’. It is acceptable to tell the jury that the failure by counsel to put certain matters goes to the weight of the relevant evidence or assertions but it is inappropriate to tell the jury that the breach of the rule, of itself, would entitle them to more readily accept or reject such evidence.[53]
[53]See the passages set out in [44], [46] and [47] above.

For the foregoing reasons, I think that ground 1 is made out.

Ground 4 – submissions

The applicant submitted that the judge should not have told the jury of her ruling that RB was a hostile witness and, more particularly, should not have told the jury of the basis for that ruling. The applicant especially criticised the judge’s statement to the jury that the circumstances ‘gave rise to an apprehension that [RB] was deliberately withholding material evidence by reason of an unwillingness to tell the truth at the instance of the party calling her’. The applicant submitted that all the jury should have been told was how they should approach the assessment of the evidence of RB given that she had been cross-examined by the Crown. It was submitted that the judge should not have told the jury that she had formed the view that the witness was deliberately withholding material and was demonstrating by her demeanour and answers an unwillingness to tell the truth and that, effectively, the judge had told the jury that she had reached the view that the witness was a liar - this would inevitably have unfairly impacted upon the jury’s assessment of the witness’s evidence. In answer, the respondent submitted that the judge had to explain to the jury why the Crown had been permitted to cross-examine RB. The respondent noted that the jury were told that it was for them to determine her truthfulness or otherwise and it was submitted that the judge was not in error in explaining the background to her ruling and the basis for it.

Ground 4 – conclusions

As noted earlier,[54] the judge supplied to counsel a draft direction and defence counsel took no objection to it.[55] The judge said that it was based on the Judge Kelly Charge Book and Tilmouth although, looking at the standard directions contained in those sources, it would seem that the direction finally given by the judge went further. The direction suggested in the Judge Kelly Charge Book runs as follows, so far as relevant:
[54]See [22].
[55]This Court does not have the advantage of knowing what was in that draft direction.

You may have noticed that [the prosecutor] was allowed to cross-examine the witness […] whom he had himself called. That is unusual. Generally speaking the party … who calls a witness is not allowed to ask questions about contested matters which suggest the answer expected of the witness, whereas the other side is allowed to ask such questions. That is the essential difference between examination-in-chief (as it is called) and cross-examination.
However, the judge has a discretion in some cases to permit cross-examination by a party of their own witness. I allowed it to be done in the case of the witness […].
There are two things which ought to be said about this:
First, the fact that [the prosecutor] exercised the right I gave him to cross-examine the witness indicates that [the prosecutor] does not put the witness forward as a witness of truth but as one from whom the truth must be extracted, if at all, by cross-examination.
Second, whilst you may bear [the prosecutor’s] attitude to the witness and my allowing the cross-examination in mind, in the long run it is for you, not [the prosecutor] nor I, to determine the truthfulness and accuracy of the witness’ account. You, the jury are judges of this, as of all other factual matters.

A direction, substantially along similar lines, was given by Redlich J in R v Lam (No 9).[56]

[56][2005] VSC 283, [38].

The above direction then goes on to deal with the matter of prior inconsistent statements. Tilmouth suggests that a judge should instruct the jury that the witness was cross-examined in consequence of a ruling that the witness could be treated as adverse or hostile but does not suggest that anything further should be said about the basis of the ruling. Whether it is appropriate for a judge to warn the jury about the unreliability of the evidence of a hostile witness, and, if so, in what terms, will depend on all the circumstances.[57]
[57]Driscoll v The Queen (1977) 137 CLR 517, 536-7.

In the present case, the judge’s directions generally conformed to the standard directions save, and this was the real matter of complaint, that her Honour not only said that her ruling was based on the demeanour of the witness and the inconsistency of her earlier statement but that ‘[t]hese circumstances gave rise to an apprehension that [RB] was deliberately withholding material evidence by reason of an unwillingness to tell the truth’. Her Honour otherwise made it clear that the assessment of the witness was a matter for the jury.

Contrary to the applicant’s submission, it was appropriate for the judge to tell the jury of her ruling that RB was a hostile witness and to briefly explain the basis and meaning of that ruling. The directions given by the judge on this topic, taken as a whole, were appropriate[58] although it would have been preferable if the judge had not used the language in the passage italicised above.[59]
[58]See [30] above.
[59]See [66] above.

In any event, defence counsel took no exception to the direction. The direction either conformed with the draft that defence counsel had already accepted or, if it differed, apparently caused him no disquiet. I would reject ground 4.

Application of proviso?

This was a strong Crown case. The applicant did not give evidence and the evidence of the complainant was not lacking in credibility and was essentially uncontradicted by any other evidence. The case therefore turned on whether the jury accepted the complainant’s evidence. Unfortunately, the erroneous aspects of the charge involved in ground 1 above had the real potential to unfairly buttress the Crown case and to generally weigh against the jury holding any reasonable doubt in

relation to the complainant’s evidence on any of the counts. By the same token they had the real potential to prejudice the defence case, which was almost entirely constituted by an attack on the credibility of the complainant. I conclude that, for those reasons, there was a significant and material denial of procedural fairness to the applicant at trial. In those circumstances, even if the evidence admitted at trial proved the accused’s guilt beyond reasonable doubt (as it seems to me that it did), I am satisfied that a substantial miscarriage of justice did occur. I consider that this case falls within the class of cases described by the High Court in Weiss v R in the following terms:[60]
… there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

[60](2005) 224 CLR 300, [45].

I would therefore grant leave to appeal, allow the appeal, quash the convictions and order a re-trial.

TATE JA:

I have had the advantage of reading the draft reasons of Mandie JA with which I agree.

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[2011] VSCA 82

5 April 2011