Lazarevic v The State of Western Australia - [2007] WASCA 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LAZAREVIC -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 156

CORAM: WHEELER JA
McLURE JA
EM HEENAN AJA

HEARD: 20 APRIL 2007

DELIVERED : 27 JULY 2007

FILE NO/S: CACR 37 of 2006

BETWEEN: VITOMIR LAZAREVIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :IND 659 of 2005

Catchwords:

Criminal law - Appeal against conviction - Directions to jury - Browne v Dunn - Credibility - Concoction - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G Laskaris
Respondent: Mr A L Troy

Solicitors:

Appellant: Evangel Legal Services
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607
Browne v Dunn (1894) 6 R 67 (HL)
Dyers v The Queen (2002) 210 CLR 285
Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Thomas v Van Den Yssel (1976) 14 SASR 205

WHEELER JA: I agree with McLure JA.
McLURE JA: The appellant appeals against his conviction for unlawfully causing grievous bodily harm to his then girlfriend, Vesna Djordjevic ("the complainant").
The appellant gave evidence and called three other witnesses. The appellant contends that the prosecutor had in closing improperly impeached the credibility of the defence witnesses as a result of failing to relevantly cross‑examine them in breach of the rule in Browne v Dunn. As a result, it was said the trial Judge erred:
(a)in failing, after the cross‑examination was completed, to draw to the prosecutor's attention the effect that the failure to cross‑examine may have on the later conduct of the trial;
(b)in failing, after the prosecutor had impeached the credibility of the defence witnesses in her address to the jury, to direct the prosecutor that the course she had taken was not open;
(c)in inviting the jury to speculate about the evidence the defence witnesses may have given if they had been cross‑examined.
The complainant sustained injuries to the orbital rim of her right eye at a party hosted by the appellant at his Rockingham home on 31 December 2003. There were ten adults at the party, including the appellant and the complainant. The prosecution case was that at approximately 9.30 pm the complainant was serving coffee to the other guests in the games room of the appellant's home. The complainant asked the appellant if she could play a tape of Bosnian Muslim music. He refused and a heated discussion ensued. The complainant then went into the lounge room and was followed by the appellant who told her that she had had enough to drink. The complainant denied that she was intoxicated. The appellant then started slapping, hitting and punching the complainant. She fell to the floor and when she got up the appellant punched her in the face and caused her to fall backwards. No one else was present in the lounge room during the assault. The appellant helped the complainant up and they walked to the bedroom where he attempted to strike her once more but was prevented from doing so by one of the guests, Mr Bozidar Kovac. The complainant then returned to the lounge room and one of the female guests took her to the bathroom. When the

complainant emerged, the appellant gave her a pair of sunglasses to wear and led her back into the games room.

A surgeon specialising in facial injuries who treated the complainant testified that orbital rim injuries are usually caused by the application of a concentrated force consistent with being hit by something such as a fist or a cricket ball. While the witness conceded that the complainant's injury may have been caused by impact with a sharp corner he said in re‑examination that it would be reasonable to expect some sort of break in the skin or damage to the nose if the injury had been sustained in that manner and no such damage was observed.
Mr Kovac gave evidence for the prosecution. He said that at some stage during the course of the evening he went to the carport where he discovered the complainant in a hysterical and crying state. The appellant was in the carport although not in physical contact with the complainant. He saw them walk into the house. Mr Kovac denied that he intervened to stop the appellant from striking the complainant in the bedroom at a later stage.
The appellant denied striking the complainant. He said that at some stage in the evening he realised the complainant was intoxicated. He asked her to stop drinking and tried to remove a stubby of beer from her hand. The complainant swung around and hit the right side of her face on one of the upright beams that supported the carport. She fell to the ground and struck her head on the concrete. The appellant attempted to lift the complainant but she swung her legs and arms and kicked at him. The appellant let go of the complainant and she fell to the ground. He made a second attempt to lift the complainant and she pushed him out of the way and went towards the games room. The complainant slipped on the door step leading into the games room and fell forward, hitting her head on the games room floor. The complainant then made her way towards the kitchen where she fell onto her stomach and hit her head once again. She then sat on the lounge with two female guests before getting up and making her way towards the appellant's bedroom where she hit her head on the corner of the wall. The appellant and his brother‑in‑law, Mr Kovacevic, then helped the complainant up and put her to bed but she fell out of bed. The complainant went to the bathroom with two female guests before returning to the group and apologising for her behaviour. The same adult guests attended a lunch hosted by the appellant the following day at his home. The complainant apologised to guests at lunch.
The other defence witnesses were Mr Kovacevic, Mr N Djurdjic and his wife Mrs R Djurdjic, the appellant's cousin. They all denied seeing the appellant strike the complainant. However, it was not part of the prosecution case that they did witness the assault. Mr Kovacevic testified that the complainant was in a "catastrophical" state being so intoxicated that she was not walking properly or talking intelligibly. His evidence supported the detail of the appellant's evidence as to the complainant's numerous falls.
Mr Djurdjic gave evidence of one fall in a doorway between the games room and the kitchen and that the complainant appeared to be drunk. Mrs Djurdjic gave similar evidence to that of her husband. The three defence witnesses gave evidence that they had seen the complainant wearing sunglasses on the following day but did not notice any or any significant injuries or bruising to her face; that on the same day the complainant had apologised for her behaviour and said she could not recall what had happened at the party. They also gave similar evidence as to the contents of the appellant's music collection.
The appellant complains of two particular aspects of the prosecutor's closing address. The first relates to the defence witnesses' evidence about what the complainant said at lunch the following day. After referring to the many falls of which the appellant and Mr Kovacevic gave evidence the prosecutor continued (T 4):
"Let's talk about consistency of behaviour. Surely if she had done all of this herself someone, one of those people, would have said something to her. Instead all those [sic] say is, 'She apologised and she said she couldn't remember what had happened the night before.' It's a matter for you, ladies and gentlemen, but think about the evidence that you heard, particularly yesterday. Those stories were almost [rote] and whenever they were asked, 'What did she say?' not one person actually quoted what she said.
They all just said, 'She apologised and said she couldn't remember what had happened the night before.'" (emphasis added)
Then later (T 10):
"Mr Kovac didn't notice [the complainant] was drunk. According to Mr Kovacevic, and you all heard this yesterday, catastrophically drunk and became more so, and yet the accused said he didn't notice this until about 8 o'clock. Come on. Let's talk about exaggeration because my learned friend certainly suggested that [the complainant] was exaggerating. Catastrophically drunk, swaying. The way they are talking she wouldn't have been able to put food on the table let alone stand up. It's not true, ladies and gentlemen, it is made up.
There may have been an argument in the carport. She may have been affected by alcohol. She says that she was a bit tipsy. The accused says that he didn't tell her what to do and yet she had to ask him if she could have a beer and he said just one. Just one. Funnily enough, no‑one sees her continuously going to the fridge to get these beers, no‑one sees her drinking this whisky. No‑one sees anything like that, yet what we have, I would suggest to you, is a reconstruction to justify the medical evidence and to justify what happened." (emphasis added)
At the end of the prosecutor's closing address, counsel for the appellant sought the discharge of the jury on the ground that the prosecutor had not put to the defence witnesses that they were not telling the truth on any of the key issues or that they had concocted their evidence (T 504 ‑ 506). That application was rejected.
That part of the summing up of which the appellant complains is as follows (T 523 ‑ 524):
"The state says to you that on all the evidence you would be entitled to be satisfied that the injuries to the complainant were consistent with the account given by her and inconsistent with the account given by the accused and the witnesses called by him and the state says that you could be satisfied that that evidence is a reconstruction to provide an explanation for what has taken place.
It was said to you that the state did not test the evidence of those witnesses in more than a peripheral way, that's a matter entirely for you. The witnesses were cross‑examined, you know the nature of the cross‑examination and what was put to them. It was not put to them, 'Well you're telling lies about this,' but they had ‑ having regard to the oath they have taken you might think that it would be surprising if they responded positively to such a proposition.
The evidence was tested in the manner that the cross examination proceeded and it is for you to determine from all the evidence what you make of all the witnesses." (emphasis added)

The rule in Browne v Dunn

The appellant contends that the prosecutor in her closing address expressly or impliedly conveyed to the jury that the defence witnesses had "concocted" their evidence and that they ought not to be believed, neither of which had been put to the witnesses in cross‑examination. That was said to be in breach of the rule in Browne v Dunn. The allegation of concoction is that the witnesses together fabricated the evidence which they gave at trial. Deliberately false evidence is necessary, but not itself sufficient, to establish concoction.
The appellant relies on the prosecutor's statement that "these stories" about what the complainant said at lunch were "almost rote" and the reference to "a reconstruction to justify the medical evidence". In its context, the reference to reconstruction can only be to the evidence of the appellant and Mr Kovacevic who each gave strikingly similar evidence of the complainant's repeated falls on the night in question. The term "reconstruction" falls a long way short of imputing that the witnesses together fabricated their stories. However, it is the statement set against the strikingly similar (and, one might add, eyebrow raising) evidence that conveys the imputation of concoction. I also accept that the use of the word "rote" (to mean learn by heart) in the context in which it was used was capable of conveying an imputation that the witnesses concocted their evidence about what the complainant said at lunch the following day.
The rule in Browne v Dunn has been formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607 at 623 as follows:
" … 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."
The rule in Browne v Dunn does not apply where the witness is on notice that his or her evidence is in contest and notice may come from a variety of sources, including the other side's opening and from the general manner in which the case is conducted: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236. Moreover, the rule does not apply where the witness's story is so incredible and romancing a character that the most effective cross‑examination would be to ask him to leave the box: Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 at 560.
As to the issue of general credibility, Lord Herschell said in Browne v Dunn (1894) 6 R 67 (HL) at 71:
"[T]here are cases in which notice [of an intention to impeach the credibility of a witness's testimony] is so manifest, that it is not necessary to waste time putting questions to him upon it."
Similarly, in Thomas v Van Den Yssel (1976) 14 SASR 205 at 207 Bray CJ said:
"[The] principles [in Browne v Dunn] cannot … be applied without qualification to a challenge to the witness's credit generally … [I]n many … cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, 'I put it to you that your evidence is false', or 'I suggest that that is a deliberate lie' or the like."
I respectfully agree with Bray CJ. It is unnecessary to put such questions because it permits of only one response, a bare denial.
The prosecution case was detailed in the prosecutor's opening address to the jury. The appellant was put on notice of all relevant matters, including those that contradicted the appellant's version of events in his police record of interview. The appellant's version of events was also challenged in cross‑examination and he was questioned about whether he had discussed the complainant's allegations with anyone who had been at the party on New Year's Eve. He said he had spoken with a number of them although denied discussing the allegations.
Mr Kovacevic was challenged in cross‑examination about his evidence that the complainant was catastrophically drunk and in connection with the failure of Mr Kovacevic and his wife to provide statements to police.
Mr Djurdjic was cross‑examined as to his most recent contact with the appellant and whether they had discussed what the complainant had said in her evidence. Mr and Mrs Djurdjic were not cross‑examined about the evidence they gave as to what the complainant said at lunch the following day.
The appellant and Mr Kovacevic can have been left in no doubt that their evidence and general credit were in issue at trial. The evidence of the other defence witnesses was largely peripheral and, in most respects, not expressly or impliedly challenged in cross‑examination.
The purpose of the rule in Browne v Dunn is to ensure the fairness of the trial process. The incidental effect is to extend fairness to witnesses but that is not its purpose. The failure of the prosecutor to give the witnesses the opportunity to respond to a challenge to their evidence based on concoction created no unfairness in this trial. As cross‑examination of defence witnesses proceeds, pieces of evidence can come to assume different complexions in the context of the evidence as a whole. The foundation for the submissions put by the prosecutor to the jury in closing was the defence evidence as a whole. That is, the prosecutor was asking the jury to draw an inference based on the striking similarities, in whole or part, of the content of the defence evidence. I am not persuaded that the rule in Browne v Dunn requires the prosecutor to put the defence, or its witnesses, on notice of inferences that flow from the evidence in its own case. The defence can be taken to know of such matters. In my view there was no breach of the rule.
In any event, even if the rule was infringed, it gives rise to no miscarriage of justice in the circumstances of this case. There was a lengthy period between the commission of the offence and trial; the defence witnesses were friends and relatives who socialised on a not infrequent basis; and there was a proper evidential foundation in the defence case for an inference of concoction. All that could reasonably be expected in response to a direct proposition of concoction was a bare denial.

It was accepted at the hearing that if action was required as a result of any breach of the rule in Browne v Dunn in this case, it would be in the form of a direction from the trial Judge. The trial Judge could not direct the jury that it was not open to infer that the witnesses had concocted their evidence: Dyers v The Queen (2002) 210 CLR 285 at [6]. An appropriate direction could be to the effect that the prosecutor had asked the jury to find that the relevant witnesses had concocted their evidence but as that suggestion was not put to the witnesses who did not have an opportunity to respond to it, the jury may conclude that the criticism of their evidence should not be accepted, but that it was a matter for them.

The direction ‑ speculation

The direction complained of was in response to the closing address to the jury by the appellant's counsel who described the prosecutor's cross‑examination of the three defence witnesses other than the appellant as "peripheral", suggesting that the prosecutor should have clearly and explicitly put to the relevant witnesses that they had concocted their evidence. His Honour's direction to the jury is consistent with the position of Bray CJ in Thomas. Such a course is unnecessary because the reality is there can only be one response. The trial Judge was making that point rather than inviting the jury to speculate.
For these reasons I would dismiss the appeal.
EM HEENAN AJA: I have read the reasons to be published by McLure JA, I agree with those reasons and have nothing further to add.