Khamis v R

[2010] NSWCCA 179

Reported Decision: 203 A Crim R 121

New South Wales

Court of Criminal Appeal

CITATION:	Khamis v Regina [2010] NSWCCA 179 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/07/2010
JUDGMENT DATE:	19 August 2010
JUDGMENT OF:	Campbell JA at 1; Simpson J at 4; Whealy J at 5
DECISION:	1. Appeal be allowed 2. The conviction be quashed and the sentence set aside 3. There be a new trial
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - Miscarriage of justice - Appellant prohibited from putting his case - Rule in Browne v Dunn - Remedies available in criminal trial where rule breached - Availability of exclusion of evidence in New South Wales where rule breached - Generally a matter of last resort in a criminal trial - need to relate remedy to circumstances of particular case
LEGISLATION CITED:	Crimes Act (NSW) Evidence Act 1995
CASES CITED:	Adamson v Ede [2009] NSWCA 379 at [56], [62] Allied Pastoral Holdings Pty Ltd v FCT (1983) 1 NSWLR 1 at 16 Archer v Richard Crookes Construction Pty Ltd (1997) 15 NSWCCR 297 at 302-304 per Mason P and Beazley JA Browne v Dunn (1893) 6 R 67 Bulstrode v Trimble (1970) VR 840 at 849-9) Heaton v Luczka (NSWCA, 3 March 1998, unreported) at 3 per Beazley JA MWJ v The Queen [2006] 80 ALJR 329; [2005] HCA 74 Payless Superbarn v O'Gara (1990) 19 NSWLR at 556-7 Precision Plastics v Demie (1975) 132 CLR at 371 RWB v R; R v RWB [2010] NSWCCA 147 R v Allen (1989) VR 736 R v Birks (1990) 19 NSWLR 677 at 688-690 R v Body (unreported, NSWCCA, 28 August 1994) R v Burns (1999) 107 A Crim R 330 R v Liristis (2004) 146 A Crim R 547 at 562 per Kirby J R v Zorad (1990) 19 NSWLR 91 Scalize v Bezzina [2003] NSWCA 362 Schneidas (No 2) (1981) 4 A Crim R 101 Seymour v Australia Broadcasting Commission (1977) 19 NSWLR 219 at (236-237) Tomasevic v Travaglini [2007] VSC 337 West v Mead [2003] NSWSC 161; (2003) 13 BPR 24, 431 at [94]-[99]
TEXTS CITED:	Australian Law Reform Commission, Evidence, Report No 38 (1986) Ch 7, item 115 (h) Cross on Evidence (8th ed, 2010 [17460] fn 647)
PARTIES:	Omer Khamis v Regina
FILE NUMBER(S):	CCA 2009/64662
COUNSEL:	S Corish/E Kerkyasharian - Applicant J R Dwyer - Respondent
SOLICITORS:	Catherine Hunter - Applicant S Kavanagh - DPP - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/6846
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	13/03/2009

- 1 -

2009/64662

CAMPBELL JA
SIMPSON J
WHEALY J

THURSDAY 19 August 2010

Omer KHAMIS v REGINA

Judgment

1 CAMPBELL JA: I agree with the reasons of Whealy J and with the orders his Honour proposes.

2 I add the following remarks. Browne v Dunn, a case far more often talked about than actually read, was a civil case (an action for defamation tried with a jury). However the principle of professional practice, of fair play and fair dealing that it laid down has been repeatedly applied in the criminal law. Though the rule in Browne v Dunn was developed as a rule of the common law, it remains applicable notwithstanding the introduction of the Evidence Act 1995 (NSW): Heaton v Luczka (NSWCA, 3 March 1998, unreported) at 3 per Beazley JA (with whom Cole and Stein JJA agreed).

3 Additional authority for the rule in Browne v Dunn being based in procedural fairness is collected in Adamson v Ede [2009] NSWCA 379 at [56], [62]. However the precise steps that must be taken to achieve procedural fairness in a trial can be affected by matters such as (without trying to be exhaustive) whether the trial is a civil or a criminal trial, whether there is a jury or a judge alone deciding the matter, and the nature and extent of pre-trial identification of matters in issue or evidence proposed to be called: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [94]-[99]. In the context of a civil case, authority for a judge needing to consider how best to remedy the consequences of a breach of the rule in Browne v Dunn by a reference to the circumstances of the individual case is found in Archer v Richard Crookes Construction Pty Ltd (1997) 15 NSWCCR 297 at 302-304 per Mason P and Beazley JA.”

4 SIMPSON J: I agree.

An overview

6 During his trial the appellant Omer Khamis attempted to give evidence about a matter that was important to his defence. The trial advocate objected on the basis that the evidence related to a conversation which had not been put in cross-examination to the complainant or to members of her family. The trial judge, in reliance on the rule in Browne v Dunn (1893) 6 R 67, excluded the evidence. In so doing, her Honour, in my opinion, erred in law and the exclusion of the evidence, in the circumstances, has led to a miscarriage of justice. There were other satisfactory mechanisms available, short of exclusion of the evidence, to deal with the situation, but these were neither considered nor applied. The result is that there should be a new trial.

The trial

7 The appellant was arraigned on one count of sexual intercourse without consent (s 61 of the Crimes Act (NSW)). The appellant pleaded not guilty to the charge and a jury was empanelled. The trial commenced on 29 September 2008 and concluded on 9 October 2008 when the jury returned a verdict of guilty. On 13 March 2009, the appellant was sentenced to an overall term of imprisonment of four years and six months with a non-parole period of two years and three months.

The appeal

8 The appellant makes no complaint about the sentence imposed on him. However, he appeals against his conviction. There is essentially one ground of appeal although it is expressed in the following terms: -

“(i) The trial judge erred in law in refusing to allow the accused to give evidence of the conversation between the complainant’s brother, Kamal and the complainant and the circumstances of that conversation and the trial miscarried as a result.
(ii) The trial judge erred in law in the application of the rule in Browne v Dunn and the trial miscarried as a result.
(iii) The trial judge erred in law in failing to apply or consider the provisions of s 46 of the Evidence Act when ruling on the admissibility of the (excluded) evidence of the accused and the trial miscarried as a result.”

9 On the hearing of the appeal Mr Corish of counsel, who appeared on behalf of the appellant, supplemented this ground of appeal by suggesting that the trial judge ought to have considered not only the alternative courses predicated in his written submissions, but should have also taken into account s 135 of the Evidence Act. Counsel’s essential submission was that, had those alternatives been examined, there would have been no need to exclude the applicant’s evidence. The further consideration of s 135 would have ensured that no unfairness would have been sustained by either party in the course of the trial.

The prosecution case

10 The complainant lived at a property in the western suburbs of Sydney. She lived there with her family. They were all of Sudanese origin. The complainant had arrived in Australia in 2006 with her mother and siblings. These included her older brother Kamal, who, it seems, played something of a parental role towards his younger sister. The appellant became a friend of the complainant’s family through community connections and ultimately formed a friendship with the complainant and her older brother. Sometimes he would have a meal with the family and sometimes he would stay over night. The appellant had, on occasions, given gifts to the complainant and spoken to her older brother of his desire to marry her.

11 On Saturday 27 October 2007, the complainant was at home with her mother, her two brothers and a young lady who was in a relationship with Kamal. Her name was Angelina. Early the next morning, at about 5am, the appellant called the complainant on her mobile phone. He said that he had finished work and he asked her to open the front door of the house. The appellant was let into the house by the complainant and after that, according to her evidence, she went back to her bedroom and fell asleep.

12 Sometime later the complainant woke up to find the appellant lying on her and kissing her. She said her undergarments had been removed and that the appellant was trying to (and did) put his penis into her vagina. The complainant said she tried to call for help and pushed the appellant away. He left the room and the complainant then went back to sleep. When she woke she went to the bathroom and saw what appeared to be semen in her underpants as well as in her vagina.

13 The complainant went immediately to her brother’s room and spoke to Angelina about what had happened. There was an agreement between the two young women that Angelina should tell Kamal what had happened. After that occurred, Kamal spoke to the complainant about the incident.

14 Shortly afterwards, Kamal, initially, and later others confronted the appellant in the younger brother’s room where he had been asleep. The appellant denied he had done anything wrong but Kamal persisted. He threatened that he would get a knife. The appellant then admitted that he had been in the complainant’s room but said that he would marry her.

The defence case

15 The appellant’s case was that he had entered the complainant’s bedroom and had spoken of marriage. He said that the complainant was pleased with the prospect and that it was the complainant who initiated intimate contact. The appellant said that the complainant touched his penis until he ejaculated, that there was no penetration and that, whatever occurred, it occurred consensually. It was his case that the complainant’s family sought to extract money from him but that, when he refused, the police were contacted. He denied admitting to Kamal or the family that he wished “to correct a wrong” that he had done by offering to marry the complainant.

Rejection of the appellant’s evidence

16 There was undoubtedly an unusual feature in the trial. This appeared to emanate from cultural sensitivity and traditions surrounding marriage customs between people born in the Darfur region in Sudan. For example, when the complainant’s mother was told of the fact that there had been some type of sexual incident between the appellant and the complainant during the early morning, it was she who then insisted that the appellant must marry the complainant. Secondly, there was undoubtedly a considerable amount of conversation, (back and forward), concerning the issue as to whether the complainant should marry the appellant. It was ultimately her decision, late on the Sunday afternoon, that she did not want to marry the appellant. It was after that position had been made clear that the family contacted the police. Thirdly, Kamal insisted that the appellant write out a version of the events and, it seems, this was done twice but the notes were destroyed. It was against the background of these unusual negotiations, reticence and discussions that a particular matter emerged that was important for the defence case. Finally, much of the evidence was taken through Sudanese interpreters and there were numerous instances of problems arising in the taking of evidence because of dialect difficulties.

17 The matter of importance was this: the appellant, Kamal, the complainant and her mother were all in the younger brother’s bedroom. This was shortly after the appellant had been wakened by Kamal. There was no doubt that Kamal was angry, although there was a dispute as to whether he kicked the appellant or not. Kamal conceded that he did kick the appellant, but later endeavoured to withdraw the admission. Other members of the family either denied that it had happened or said they did not see it. Kamal, however, conceded that he told Omer that he “would get a knife and kill him”.

18 The complainant’s evidence was that during these initial discussions, when the family were present, Kamal had slapped her on the face with his hand. The following evidence emerged (T 51): -

“ Q. And why did he slap you on the face?
A. I don’t know.
Trial Advocate: I think that could be rephrased.
Her Honour: Yes, I reject that -
Sloane:
Q. What happened before Kamal slapped you on the face?
A. I can’t remember, I wasn’t listening, I was thinking about something else, like I just – I didn’t know.
Q. Did you ask him why?
A. No.
Q. And did he say anything to you?
A. No.”

19 Kamal was asked about “the slap” during his cross-examination. He stoutly denied he had slapped his sister on the face, either in the bedroom or anywhere else on that day. Three times he maintained that he did not slap or hit his sister. The mother was cross-examined about the incident. She said she did not hear Kamal say he would get a knife and kill Omer. She said she didn’t see Kamal slap the complainant on the face, either in the bedroom or at any time that day.

20 Trial counsel for the appellant raised the same issue with Angelina when she was cross-examined. At transcript 209, the following appears: -

“ Q. Did (the complainant) come into the bedroom?
A. Yeah.
Q. And did (the) mother say anything about agreeing to or permitting a marriage between Omer and (the complainant)?
A. No.
Q. And did (the complainant) say she didn’t want to marry him?
A. I didn’t hear anything like that.
Q. Did Kamal slap (the complainant) in the face in the bedroom?
A. I didn’t see that.
Q. Did you see Kamal slap (the complainant) in the face at any time on 28 October?
A. No.”

21 The appellant gave his evidence on 7 October 2008. First, he gave his account of the incident in the bedroom. As I have said, he denied that there was any sexual penetration. He said he was encouraged by the complainant in relation to the sexual activities he described. Secondly, he gave evidence about Kamal waking him up and the conversation that then followed. He said that Kamal threatened to get a knife and kill him. He maintained that he was asked what it was he had done in the complainant’s room. He said “I didn’t do anything”.

22 He explained that he didn’t mention the ejaculation because of his sensitivity towards the complainant. The evidence then continued at (T 313): -

“Then after a while he jumped with another option, he said “I get you here a piece of paper and you will write down that you had sex with (the complainant)” and he was asking (the complainant) and she was just keeping silent, she didn’t answer anything.
Her Honour: Just stop there for a moment please.
Q. Yes?
A. Interpreter: While he was asking (the complainant) and she kept quiet and silent, he slapped her on her face until she fell on the floor and then she started crying.
Sloane:
Q. You told us earlier that Kamal was threatening (the complainant). What was he doing?
A. Interpreter: He was trying to convince and let (the complainant) agree -
Her Honour: Just a moment, just a moment. I think the witness is telling us what he thinks is in somebody else’s mind.
Sloan: Yes your Honour, the question was, what was he doing?
Her Honour: Yes, what was, so can you repeat that?
Sloane:
Q. Can you just tell us what you saw or heard Kamal do, not the reasons you think he did it?
A. Interpreter: He said to her “You have to say that you had sex with Omer or otherwise I am going to kill both of you”.”

23 It was at that point that the trial advocate objected to the evidence on the basis that it had not been put to the complainant or to Kamal. The jury were sent out and a voir dire was held to determine the admissibility of the evidence and otherwise to deal with the problem that had arisen.

24 The appellant gave evidence on the voir dire. He told the court that Kamal had been threatening the complainant before he slapped her. This time, however, the answer given through the interpreter as to the actual words used by Kamal were -

“Have you had sex with Omer in the room? And he repeatedlasking her and she kept quiet and silent and then slapped her until she fell on the ground”.

25 During the argument that followed the trial judge noted that the evidence was likely to be “very significant” and added: -

“It may eventually be, going to the, in some way, I’m quite sure it would, but to the credit of the complainant, then that would be something that I would think would have to have been put to the complainant, to Kamal and to, presumably Angelina because on the witness’ evidence Angelina was present…I’m not terribly clear whether, on his evidence, the mother was present or not. I think perhaps not, in that she was trying to stop Kamal getting out of the room to get to the knife but on his evidence Angelina, Kamal and the complainant would have been present…”

26 Later during the discussion, he Honour added: -

“Right. Well then in the voir dire the evidence was given in perhaps a somewhat more diluted way. I don’t know if its just an interpretation issue or not but on the voir dire what the accused said was that Kamal asked – rather than putting to (the complainant) you have to admit you had sex with Omer. Then he asked her “Have you had sex with Omer?” in the room and then she was silent, then he slapped her.
But that is still something potentially of significance because the Crown witnesses were essentially saying Kamal asked (her), “Will you marry?” which is somewhat different particularly in the context of all these cultural matters that have come up.
So on the evidence of the Crown witnesses it was (the complainant) who voluntarily disclosed what she said had happened. On this witness’s – on the accused’s evidence now on the voir dire it was Kamal who pressed (her) “Have you had sex with Omer? and then slapped her”. So I think that’s rather a different scenario and not one that was put to any of those three relevant witnesses”.

27 Eventually the trial judge concluded the issue in the following terms: -

“Well I am inclined to reject it, Ms Sloane. That is to reject both the evidence that Kamal, in effect, was threatening towards (the complainant) in the sense of telling her that she was obliged to admit that she had sex and in the sense of rejecting the evidence that it was Kamal who raised the matter with (her), “Have you had sex with Omer?”.”

28 The jury were then called in and her Honour gave them the following direction: -

“Members of the jury, just before you went out the witness started saying Kamal had said something and then the Crown took objection to that on the basis that that proposition of the witness giving evidence about had not been put to the complainant.
Now we have a rule, I suppose a rule of evidence, if you like, or procedure that if a witness is going to say something that may be important then that proposition has to be put to the other side, if you like, so that they can give their version of whether that did or didn’t happen.
So because that aspect of the accused’s evidence was not put to the complainant I have rejected it. So that answer he started giving has been, if you like, struck out and if you remember what it was, I won’t repeat it. If you remember what it was, forget it because it is not part of the evidence”.

29 The trial then continued, the appellant concluded his evidence and, as I have said earlier, after submissions from counsel and a summing-up by the trial judge, the appellant was found guilty of the charge.

Resolution of the issues

(a) Did the rule in Browne v Dunn apply?

30 The rule in Browne v Dunn was formulated as long ago as 1893. It has been the subject of judicial analysis on many occasions, and indeed, the subject of considerable academic discussion, since the rule was first enunciated. It is, plainly enough, an important rule of practice. In Allied Pastoral Holdings Pty Limited v FCT (1983) 1 NSWLR 1 at 16 it was formulated as follows by Hunt J:

“It has in my experience always been a rule of professional practice that unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn”.

31 In a recent decision of the Court of Criminal Appeal (RWB v R; R v RWB [2010] NSWCCA 147), Simpson J (with whom Johnson and McCallum JJ agreed) comprehensively analysed a good deal of the important judicial writing on the subject. I am indebted to her Honour for her analysis. There is no need for me to repeat the detail of her Honour’s remarks, although the Court, in that case, was more concerned with the requirement that a trial judge exercise considerable caution in relation to directions to the jury concerning the failure of an accused counsel to comply with the rule of practice.

32 The issue of the proper approach to the rule in Browne v Dunn in criminal trials has been examined recently by the High Court of Australia in MWJ v The Queen [2006] 80 ALJR 329; [2005] HCA 74. At [18] Gleeson CJ and Heydon J stated: -

“The principle of fair conduct on the part of an advocate stated in Browne v Dunn is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial is adversarial. Murphy J, in this Court even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trials. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.” (Case reference omitted).

33 The matter was also the subject of comment in the joint judgment of Gummow, Kirby and Callinan JJ at [38] – [40]: -

“[38] We should next say something about the rule in Browne v Dunn, which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice’s reference to the appellant’s counsel’s failure to seek to have the complainant recalled for further cross-examination. 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 or a witness’ credit.
[39] 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 rules 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 mad 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…
[40] 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 out 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”.

34 These comments echo the earlier statements of Gleeson CJ (as he then was) in R v Birks (1990) 19 NSWLR 677 at 688-690 where his Honour emphasised that while the rule does apply in New South Wales to criminal as well as civil proceedings, its practical content needs to be related to the circumstances of each particular case. Gleeson CJ referred to a judgment of Mahoney JA in Seymour v Australia Broadcasting Commission (1977) 19 NSWLR 219 where his Honour had 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.”

35 See also R v Liristis [2004] 146 A Crim R 547 at 562 per Kirby J (with whom Studdert and Hislop JJ agreed); and R v Zorad (1990) 19 NSWLR 91; for the position in civil trials, see Payless Superbarn v O’Gara (1990) 19 NSWLR at 556-7.

36 In my opinion, the rule in Browne v Dunn applied to the situation that arose in the present trial. It was not submitted, nor could it have been, that the rule does not apply in criminal cases. Mr Corish had faintly argued, however, that, because the complainant denied that Kamal had said anything to her at the time she was slapped by him, this relieved counsel for the appellant from putting to her the precise statement allegedly made by Kamal. It was, however, a matter of such importance that the rule of professional practice required, in my opinion, that it be put precisely. In the same way, it needed to be put to Kamal, the complainant’s mother and Angelina. They were each asked whether Kamal had “slapped” the complainant and it was a matter of procedural unfairness not to put the precise statement in the questions asked of those witnesses. The conversation between trial counsel and trial judge clearly showed that the failure of counsel to put the alleged statement to each of the witnesses did not occur as some kind of tactical consideration. Rather, counsel candidly admitted that she had taken the view that the answers she had received in her questions to the complainant did not require that the precise matter be put to the witnesses. In that regard, as I have said, counsel was, in my opinion, mistaken.

The consequences of the breach of the rule in the present matter

37 There is authority in New South Wales to support the proposition that a trial judge may exclude evidence which is sought to be adduced by or on behalf of an accused person following upon a failure to put a matter required by the rule in Browne v Dunn. In Schneidas (No 2) (1981) 4 A Crim R 101 the rule was applied even in circumstances where the accused was a lay person conducting his own defence. Schneidas had been charged with the murder of a prison officer. During cross-examination of a Crown witness Workman, who was another prisoner, Schneidas put to him, in general terms, that Workman had spoken to certain other prisoners, Armstrong, Munday and Williams, and that the content of these conversations indicated that the only reason Workman was giving evidence against Schneidas was because he disliked him. The accused later sought to adduce evidence of these conversations from the three prisoners but was not permitted by the trial judge to do so.

38 That ruling was upheld by the Court of Criminal Appeal. The Court appeared to be much influenced in its decision by its perception of unfairness to the Crown and an unfair advantage to the appellant which could only have been overcome by the trial judge departing from the usual procedure and allowing the Crown the opportunity of recalling Workman in reply. In its decision, the Court noted that the appellant, although unrepresented, appeared to be “well versed in the art of cross-examination and general court procedure”.

39 Schneidas was discussed by Hunt J in Allied Pastoral Holdings Pty Limited v FCT at 22 without dissent

40 In Regina v Body (Unreported, NSWCCA Gleeson CJ; Carruthers and Bruce JJ, 28 August 1994) followed the decision in Schneidas. The Court upheld the decision of the trial judge that evidence sought to be adduced by the accused should be rejected on the basis of the unfairness caused to the Crown by contravention of the rule in Browne v Dunn.

41 As a matter of interest, the position is otherwise in Victoria. In R v Allen (1989) VR 736 McGarvie J refused to followed Schneidas and held that a trial judge in Victoria does not have the power to refuse to admit defence evidence that, in a criminal trial, was not put to prosecution witnesses in accordance with the rule in Browne v Dunn. His Honour held that the evidence was not inadmissible because of the breach. Further, he held that counsel for the prosecution and the trial judge would be entitled to make comments at the time of final address and summing-up upon the failure to put the substance of the evidence to the prosecution witness. In more recent times, Bell J agreed with McGarvie J’s decision and held that, in Victoria a court cannot prevent the defence from giving otherwise admissible evidence, even in circumstances where the rule in Browne v Dunn has been breached (Tomasevic v Travaglini [2007] VSC 337).

42 It may be said, however, there are a number of sanctions generally available for a court’s consideration where, in a criminal trial, there has been a breach of the rule in Browne v Dunn. The more recent authority to which I have referred, makes it clear, however, that a trial court must always endeavour to demonstrate flexibility in its response to the particular problem before it. This will be largely determined by the particular circumstances involved in the case and the course of the proceedings. I will mention, without attempting to be exhaustive, a number of the available responses.

43 First, if a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. That was one of the options suggested by Mahoney JA in Seymour, although that was a civil case.

44 Secondly, if the witness has not been cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness’s evidence, particularly if it is uncontradicted by other evidence. Where however, a witness’s evidence upon a particular matter appeared to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness had not been cross-examined might be of little importance in deciding whether to accept his evidence (Bulstrode v Trimble [1970] VR 840 at 848-9); Precision Plastics v Demir (1975) 132 CLR at 371). Thirdly, the trial judge may, on application by counsel for the party who called the witness in respect of whom the rule was broken, accede to the application so that matters not put to the witness earlier may be put (s 46 Evidence Act 1995). Quite apart from the ability to grant leave under this section, a trial judge may require the relevant witness to be called for further cross-examination or grant an application for the recall of the witness (Payless Superbarn (NSW) Pty Limited v O’Gara at 556; R v Burns (1999) 107 A Crim R 330; MWJ v R at [40].

45 Fourthly, as indicated by cases such as Schneidas there is, at least in this State, a power in criminal trials to exclude evidence sought to be relied upon by an accused to support a point not put in cross-examination of a witness called by the Crown. This option, in my opinion, should, (in this situation) generally speaking, be a last option and not one of first resort.

46 Finally, if an accused’s evidence is allowed, and there has been a breach of the rule, there may be a need for appropriately fashioned directions to be given to the jury. This option, and the care and caution needed to be taken in respect of it, was the subject of this court’s decision in RWB v R [2010] NSWCCA 147 to which I made reference at the commencement of these reasons. There is no need for me to say anything further on that subject.

Did the trial judge fall into error?

47 In my opinion, the trial judge fell into error in the present case. The evidence sought to be led from the accused, as I have said, should have been precisely put to the complainant, to Kamal and the other family members present in the bedroom. It was clearly important evidence. It was clearly capable, if accepted, of undermining in an important respect, the credibility of the complainant, Kamal and Angelina. It went to the core of the nature of the complaint made by the complainant to the brother’s girlfriend. Equally, if accepted, it was powerfully capable of supporting the appellant’s credibility in relation to the defence case. His principal assertion before the jury was that there had been no act of penetration. If the complainant’s statements to Angelina and her brother did not suggest that penetration had taken place, but were concerned with acts of lesser intimacy, that would have been a powerful matter for the jury to take into account in assessing whether the appellant was guilty of the charge.

48 The importance of the evidence required that it be permitted, not excluded, provided that a satisfactory technique could be fashioned, in the circumstances, to prevent unfairness to both sides.

49 The general structure of the Evidence Act (NSW) is clear. Evidence that is relevant in a criminal proceeding is, except as otherwise provided by the Act, admissible in the proceeding (Section 56(1)). Equally, evidence that is not relevant in the proceedings is not admissible. The test of relevance is plainly stated in s 55(1). Evidence is not taken to be irrelevant because it relates only to the credibility of a witness. Where evidence is admissible (and not excluded by any other provision of the Act) it should be admitted unless the court decides, in the exercise of its discretion under s 135, it ought not to be admitted, or where the court is bound to exclude it under s 137 of the Act. There are, of course, other exclusionary and discretionary provisions bearing on the issue as to whether evidence should be admitted in a criminal trial but they are not relevant to this discussion.

50 It is, I trust, not an unfair reading of the argument that took place before the trial judge, and her brief reasons for her decision, to state that the view was taken that a breach of the rules in Browne v Dunn required, as a matter of admissibility, the exclusion of the evidence. That, in any event, is the way in which I read the argument and her Honour’s remarks.

51 In fairness to the trial judge, it must be stated that nobody appears to have flagged the possibility that the witnesses could have been recalled. There was a general power to do so, and in addition, there was a specific power under s 46 of the Evidence Act. The latter section appears to be designed to bring about a consequence that non-compliance with the rule in Browne v Dunn will not result in the exclusion of the evidence (Australian Law Reform Commission, Evidence, Report No 38 (1986) Ch 7, item 115 (h)). It has been noted that one “curious” aspect of s 46 is that it places the burden of rectifying a breach of the Browne v Dunn duty on the innocent party, not upon the party in breach. (Cross on Evidence (8^th ed, 2010 [17460] fn 647). Be that as it may, when the problem arose in the present trial, as I have said, neither the Crown nor defence counsel made any application for the recall of witnesses. They should have done so. It appears to have been accepted, however, by all concerned that there was no option beyond that of exclusion of the evidence.

52 Had the general range of options available in the situation that developed been entertained, consideration could have then been given to the question as to whether leave should have been granted to recall, either under s 46 of the Evidence Act or under the court’s general power. If s 46 had been relied on for that purpose, this in turn would have required the court to consider the various matters listed in s 192 of the Evidence Act, together with any other matter that the court regarded as appropriate. Relevant considerations would have necessarily included any practical problems in securing the re-attendance of the witnesses, the importance of the evidence and any issue of unfairness to the Crown. The trial judge would have also been required to consider the issue as to whether any directions should be given to the jury, if leave were granted. In the present matter, her Honour had in fact perceived that the evidence was “significant” and, in that regard, her reasoning was plainly correct. In addition, quite about from the matters that might be considered on a leave to recall application, the evidence sought to be adduced by the appellant, if otherwise admissible, had to pass through the discretionary filter of s 135 of the Evidence Act. Prejudice and unfairness could also be examined in that context.

53 It must be said, however, that none of these matters were considered simply because the court, no doubt influenced by the parties reticence on the point, did not consider that any option other than exclusion was available. The parties argued the matter as if the rule in Browne v Dunn was an exclusionary rule of evidence and the ruling was essentially made on that basis. The rule is not a preclusive rule of evidence. Its breach does not necessarily dictate that evidence may not be called in contradiction. (Scalize v Bezzina [2003] NSWCA 362). A rule that is grounded in fairness should not be used, except as a last resort, to exclude evidence going to the question whether a person is guilty or not guilty of a criminal charge. That would be to respond to procedural unfairness by imposing substantive unfairness. It is, of course, recognised in this State that a power to exclude the evidence exists but, in my opinion, in a criminal trial, concerning evidence that an accused seeks to adduce, it is a power that should, generally speaking, be used sparingly, and only in circumstances where no other option is available.

54 The Crown’s essential submission on the appeal was that, if the Court should find that her Honour erred in her application of the rule in Browne v Dunn, it had not been demonstrated that the result was detrimental to the appellant’s case, or that a miscarriage of justice was occasioned by the exclusion of the evidence. I accept, as the Crown submitted, that her Honour made no reference to the credibility of the appellant in her remarks to the jury at the time the evidence was excluded and the comment she did make, of itself, would not have warranted a finding that a miscarriage of justice had been occasioned.

55 I do not agree, however, that, in the circumstances of the case, recalling the witnesses would not have assisted the case for the appellant. The complainant had said in her evidence-in-chief that she had told Angelina, in the bedroom, the appellant had been trying to kiss her and “like he put his penis like in my vagina”. In her evidence, Angelina was equivocal about the terms of complaint. Her evidence was that the complainant had said to her that “she fell asleep and then after…Omer was on top of her and she started feeling something that was hurting her and when she woke up she found like Omer on top of her, naked, and he said ‘Oh nothing’s happened’”. She later alleged that she told Kamal that Omer had been “sleeping with” his sister…”in other words like raping your sister”. Kamal in his evidence stated that Angelina spoke to him: -

“She told me that as along you say that he is something like a relative or a friend, why he goes inside your sister’s room to have sex with her. To attack her…”.

56 He then said he spoke to his sister and she told him: -

“Omer was naked and he pulled her panties down and she felt something getting in”.

57 The Crown argued that all this was not just “word against word”. There was corroboration of the complaint’s evidence.

58 It will be seen however, from the foregoing that it was highly significant in the trial to assess the credibility of the complainant and the details of what she had told Angelina and the information then provided by Angelina to Kamal. The evidence sought to be led on the appellant’s behalf demonstrated on one view of it, that the slapping of the complainant by her brother, and his threats and statements to her, seriously put in issue the version of the complaint given by Angelina in her evidence and hence the accuracy of the report to Kamal. It had the capacity to undermine the complainant and the other members of the family.

59 Against the background of the cultural overtones in the trial, together with the negotiations for marriage and the talk of a financial settlement, the conversation alleged by the appellant might well have been seen by the jury as an important part of the events of the day in question. In my opinion, it was critically important in the trial for the jury to hear the evidence that was excluded. Equally, it would have been important for the jury to hear what the complainant and the other witnesses had to say about his assertion. Presumably, they would have denied, it but the matter had not been put to them and the entire topic was, by virtue of her Honour’s ruling, simply shelved. The appellant’s case had focused on his denial that there had been penetration. He admitted that his conduct was “wrong” but that may well have been simply an admission that he had breached a cultural protocol, as the mother was later to suggest in her evidence. He had not consulted the family before raising the question of marriage, and his presence in the bedroom, even with a minor degree of consensual intimacy, may well have been perceived as culturally inappropriate and wrong.

60 At least on the complainant’s evidence, there was no doubt that she had been slapped by her brother. The jury, in the end, were not able to take into account the accused’s evidence as to the full circumstances of the slapping. In my view, that deprived the appellant of a substantial part of the case he was seeking to advance. It led to a clear miscarriage of justice.

61 The Crown further submitted on appeal that the appellant’s credibility had been rather severely damaged by the answers he gave during his ERISP interview. It is true that, when questioned by the police, the appellant gave a story that differed quite substantially from the evidence he gave at trial. He said that he and the complainant were just “hugging and kissing” and that he left the bedroom shortly thereafter. The ERISP interview did provide a real difficulty for the appellant at trial, although he attempted to explain before the jury that he omitted details of the events in the bedroom because “it was a shame like to talk about her…I thought like no need to talk about these embarrassing things”. He also explained that there had been no interpreter available when he spoke to the police. He suggested he had been badly treated by the police. I agree with the Crown’s submission, however, that a full reading of the cross-examination of the appellant on the subject scarcely assisted his credibility. However, I consider that the shaky state of his credibility, arising from the ERISP, really demanded that the particular evidence in issue in this appeal, critical as it was to the credibility of all the principal witnesses, should have been allowed to remain before the jury, provided that the relevant witnesses were able to be recalled. There was ample scope within ss 135 and 192 of the Evidence Act to allow for any possible unfairness if that situation were to arise for any reason relied upon by the Crown.

62 In my view, there should be a new trial. I propose the following orders: -

1. The appeal be allowed.

2. The conviction be quashed and the sentence set aside.

3. There be a new trial.

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