Parsons (a Pseudonym) v The Queen

Case [2016] VSCA 17

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2015 0137

TERRENCE PARSONS (a pseudonym)[1] Applicant
v
THE QUEEN Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES: MAXWELL P, REDLICH and PRIEST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 3 February 2016
DATE OF JUDGMENT: 23 February 2016
MEDIUM NEUTRAL CITATION: [2016] VSCA 17
JUDGMENT APPEALED FROM: DPP v [Parsons] (Unreported, County Court of Victoria, Judge Patrick, 17 February 2015 (Conviction))

---

CRIMINAL LAW – Conviction – Appeal – Evidence – Cross-examination – Rule in Browne v Dunn (1893) 6 R 67 – Failure to put to complainant later contradictory account given by the applicant – No instructions given by applicant to counsel regarding contradictory account –Applicant resiled from some contradictory evidence during cross examination – No exception to cross-examination taken by defence counsel – No breach of Browne v Dunn – Leave to appeal refused.

CRIMINAL LAW – Conviction – Appeal – Evidence – Character evidence in a ‘particular respect’ – s 110 Evidence Act 2008 – Miscarriage of justice due to defence counsel’s failure to adduce evidence of good character – Hajar v The Queen [2015] VSCA 233; Knowles v The Queen [2015] VSCA 141, discussed – No miscarriage of justice where rational explanation for conduct of counsel existed.

---

APPEARANCES: Counsel Solicitors
For the Applicant Mr D D Gurvich SC with Ms G F Connelly Stary Norton Halphen
For the Crown Mr G J C Silbert QC Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
PRIEST JA:

Introduction

  1. This application touching conviction raises two issues.  The first concerns the prosecutor’s cross examination of the applicant, during which it was suggested that the applicant’s counsel had not challenged the complainant on matters which were later the subject of evidence by the applicant.  It is contended that these suggestions in cross-examination were unfair, since there had been no breach of the rule in Browne v Dunn,[2] and that the trial judge failed to direct the jury as to how they should approach this issue.  Secondly, the applicant contends that a substantial miscarriage of justice flowed from the failure of defence counsel to adduce evidence of good character in ‘a particular respect’, in that he had no prior history of sexual misconduct.

    [2]Browne v Dunn (1893) 6 R 67.

  2. For the reasons which follow, we have concluded that neither contention can be sustained.  Leave to appeal must therefore be refused.

    Convictions and grounds of appeal

  3. During February 2015, the applicant was tried in the County Court on 21 charges of alleged sexual offending perpetrated upon a teen-aged female, ‘CPB’.  The charges included one of sexual penetration of a child under 16[3] (charge 1);  eleven of sexual penetration of a 16 or 17 year old child under care, supervision or authority[4] (charges 3, 8,…

Continue reading Parsons (a Pseudonym) v The Queen

Sign in free to access the full text

Details
AGLC
Parsons (a Pseudonym) v The Queen [2016] VSCA 17
Case
[2016] VSCA 17
Decision Date

CaseChat Overview and Summary

In Parsons (a Pseudonym) v The Queen, the appellant challenged his conviction on appeal to the High Court of Australia, raising two grounds of appeal. The first ground pertained to the trial judge’s failure to put to the complainant a later contradictory account given by the appellant. The second ground argued that the appellant's conviction was a miscarriage of justice due to the defence counsel's failure to adduce evidence of the appellant's good character in a particular respect. The appellant argued that the absence of such evidence led to a substantial miscarriage of justice.

The court examined the first ground of appeal, which related to the rule in Browne v Dunn. The court found that the appellant had not provided instructions to his counsel regarding the contradictory account, and the appellant had resiled from some of the contradictory evidence during cross-examination. The defence counsel did not take any exceptions to the cross-examination. Therefore, the court concluded that there was no breach of the rule in Browne v Dunn, and the ground of appeal was dismissed. The second ground of appeal concerned the failure of the defence counsel to adduce evidence of the appellant's good character in a particular respect. The court found that the absence of such evidence did not result in a miscarriage of justice, as the conduct of the defence counsel was a rational forensic decision. The court noted that the evidence of good character in a particular respect was available but was not presented at the trial. The court concluded that the ground of appeal could not succeed as there was a rational explanation for the conduct of the defence counsel.

The High Court of Australia concluded that the appellant's application for leave to appeal against his conviction must be refused. The court dismissed both grounds of appeal and upheld the appellant's conviction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This ground is not made out.Ground 2 — Failure to adduce evidence of good character When cross-examined by the applicant’s counsel, the informant agreed that the applicant had ‘never been convicted or found guilty of any offence’. Beyond that, however, no evidence was led concerning the applicant’s good character. Moreover, there was no reference to the applicant’s good character in his counsel’s final address. Ground 2 complains that the failure of the applicant’s counsel to adduce evidence of the applicant’s good character in a ‘particular respect’ resulted in a substantial miscarriage of justice. As will become clear, however, it is impossible to conclude other than that the conduct of counsel now criticised was the product of a rational forensic decision. Essentially for that reason, ground 2 cannot succeed. Counsel for the applicant in this Court acknowledged that, notwithstanding that trial counsel did not press for a direction on good character, the judge gave directions on ‘general good character’. He pointed out, however, that s 110 of the Evidence Act 2008 permitted an accused to adduce evidence that he or she is generally, or in a particular respect, a person of good character. Good character evidence ‘in a particular respect’ was available by way of evidence from several witnesses concerning the applicant’s good reputation within the particular sporting community (that is, relating to the particular context in which the relevant conduct allegedly took place). As we understood counsel’s oral submissions, the character ‘in a particular respect’ of which he spoke, was concerned with the absence of any history of sexual misconduct with teen-aged female students whom the applicant coached. So much was demonstrated by the evidence called on the applicant’s plea in mitigation, which showed ‘the plethora of good character evidence of this kind available to the applicant’. It was submitted that such evidence ‘would have constituted a powerful defence to the allegations of sexual abuse’, since it bore ‘both on the unlikelihood of the commission of the offences and on the applicant’s credibility’. Despite these matters, so counsel argued, evidence of the applicant’s good character ‘in a particular respect’ was not adduced at the trial. The applicant thus was deprived of a direction in that regard, resulting in a substantial miscarriage of justice. We pause to observe that, so far as evidence of good character is concerned, the plain intention of s 110 of the Evidence Act 2008 is to vary the common law ‘all or nothing’ attitude. It is thus open to an accused person to lead evidence that he or she is of good character ‘generally’ or ‘in a particular respect’.[22] Evidence of good character in a particular respect might, for example, include evidence that an accused person has no prior history of sexual misconduct with children. All other things being equal, it would comprehend the kind of evidence that the applicant’s counsel submitted was available to be called in this case; namely, the applicant had no history of sexual misconduct with teen-aged female students whom the applicant coached. So much is clear from Zurita,[23] in which the New South Wales Court of Criminal Appeal said:[24] [22]Bishop v The Queen (2013) 39 VR 642; See Wah v The Queen (2014) 239 A Crim R 41, 52 [57]–[62] (Weinberg JA).[23]R v Zurita [2002] NSWCCA 22, [14]–[15] (‘Zurita’). [24]Ibid [14]–[15] (Howie J, Hodgson JA and Levine J agreeing). See also Bishop v The Queen (2013) 39 VR 642, 645 [8] (Redlich JA), 651 [38] (Priest JA); See Wah v The Queen (2014) 239 A Crim R 41, 52 [62] (Weinberg JA).It is clear that the effect of s 110(1) was to vary the common law attitude to character, which was, as the trial judge expressed it, ‘all or nothing’. The section permits an accused person to put forward that he or she is ‘either generally or in a particular respect’ a person of good character. Defence counsel was seeking a ruling as to the consequence of the appellant raising his character either generally or in a particular respect, that being that he was not known to the police in respect of child sexual assault offences.The course adopted by defence counsel finds support in the judgment of this Court in R v PKS (CCANSW, 1 October 1998). In that case, unlike the present, the issue of the accused’s character was raised at the conclusion of the Crown case. In the context of the circumstances in that case, this Court indicated what is needed to be done in connection with the issue of good character in the following series of propositions (pg 8–10): 1. The first thing that had to be decided by the accused and his legal representatives was whether, his good character not having been put in issue in the Crown case, it should be raised as an issue in his own case.2. That decision needed to be taken in the light of the provisions of Part 3.8 of the Evidence Act 1995 (NSW), and in particular the provisions of sections 110 and 112 of that Act.3. Section 110(1) gave the accused a clear choice. He could put in issue the proposition that he was ‘generally a person of good character’. Alternatively, he could put in issue the proposition that he was ‘in a particular respect a person of good character’.4. In the event that he decided to put in issue that he was ‘generally a person of good character, the accused was vulnerable to an application by the Crown, and made pursuant to section 112 of the Evidence Act, to cross-examine him so as to elicit that he had, in fact, prior convictions, albeit old ones, for offences of dishonesty.5. If he decided to put in issue that he was ‘in a particular respect a person of good character’, namely in respect of sexual misconduct with young children, whether his own children or the children of others, then the accused was not so vulnerable to cross-examination upon his old convictions for dishonesty. That was so because of the terms of section 110(3) of the Evidence Act. Such a construction of section 110(3) was adopted by Higgins J, of the Federal Court of Australia, in Gabriel v The Queen (unreported: Federal Court of Australia: Full Court, 25 June 1997).The Court then went on:In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions:(a) whether, if the accused gave evidence that he was ‘generally a person of good character’, his Honour would refuse to permit cross-examination upon the previous offences of dishonesty, so refusing either by the method of refusing leave pursuant to section 112 of the Evidence Act; or by the method of excluding such cross-examination in the exercise of the discretion conferred in that behalf by section 137 of the Evidence Act; and(b) whether, if the accused gave evidence that he was ‘in a particular respect a person of good character’, namely in respect of sexual misconduct with young children, his Honour would uphold a submission that section 110(3) of the Evidence Act did not permit cross-examination upon the previous offences of dishonesty.

Decision

Reasons for decision

Ground 2 cannot be upheld.Conclusion In light of the foregoing, the application for leave to appeal against conviction must be refused.----

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.