R v Astbury (Ruling No 5) - [2018] VSC 637

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0290

THE QUEEN

ALEXANDER DAVID ASTBURY

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 to 16 October 2018
DATE OF RULING:	19 October 2018
CASE MAY BE CITED AS:	R v Astbury (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2018] VSC 637

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CRIMINAL LAW – Murder – Evidence – Rule in Browne v Dunn (1893) 6 R 67 – Application in criminal proceedings – Positive allegation by the prosecution – Prosecution counsel’s obligation to cross-examine – Breach – Jury directions.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr B Walmsley QC with Mr S Devlin	Mr J Cain, Solicitor for Public Prosecutions
For the Defence	Mr T Marsh with Ms E Ramsey	Victoria Legal Aid

HER HONOUR:

The defence seeks a Browne v Dunn direction. They allege a failure by the prosecution to comply with the rule in Browne v Dunn.[1]
[1](1893) 6 R 67.

The alleged failure is that the prosecution did not put to the accused that he ‘jumped on’ the victim. The prosecution opened its case as follows:

In the course of that meeting, the accused has brutally assaulted the deceased. During the assault, the accused has struck the deceased with a number of significant blows, delivered by a younger and taller man to an older, shorter man. The blows were to the deceased’s head and torso. The blows were delivered by the accused via his hands and or feet. From the extent and severity of the injuries to the deceased, a number of blows have been delivered by the accused with murderous intent to the deceased, whilst the deceased was on the floor of the bungalow.[2]

[2]Amended Summary of Prosecution Trial Opening, 29 August 2018 [46].

In closing, the prosecution said:

It gives you an insight into some of the questions you have to ask yourself of being satisfied beyond reasonable doubt that when he was in that unit, for reasons best known to himself, and we don’t need to know them, he lost it, and rained blows of one form or another all over this man with the result that occurred, and jumped on him rather than accidentally falling on him, and killed him.[3]

[3]Transcript of Proceedings, R v Astbury (Supreme Court of Victoria, Zammit J, 1–16 October 2018) 866.26–867.2 (‘T’).

The prosecution concedes that it did not specifically put to the accused that he jumped on the victim. However, the prosecution submits that the issue of the accused jumping on the victim was raised in the accused’s evidence-in-chief and specifically that the accused gave evidence that he did not jump on the victim. The evidence-in-chief was as follows:

Question:It was never the case, as you understand it of Mr Demirel being flat on the ground against the floor with you vertical, standing above him?
Answer:We overbalanced at the same time together. I wasn’t standing over him and I didn’t jump from standing on him…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] VSC 637
Decision Date: 19 October 2018

CaseChat Overview and Summary

The case before the court involved a defendant, Astbury, who was accused of the murder of a victim. The prosecution alleged that Astbury committed the crime under circumstances that warranted a charge of murder. The matter was heard in a higher court, where the defendant challenged the admissibility of certain evidence and the handling of the proceedings by the prosecution. The central issue revolved around whether the prosecution had fulfilled its obligations under the rule in Browne v Dunn, specifically regarding cross-examination and the giving of directions to the jury.

The court was required to determine if the prosecution had breached its obligation to cross-examine a key witness in a manner that would allow the jury to assess the witness's credibility and reliability. Additionally, the court had to consider whether the jury was properly directed in relation to the evidence presented, particularly in light of the prosecution's failure to adequately cross-examine the witness. The defendant argued that these breaches impacted the fairness of the trial and potentially the jury's ability to reach a just verdict.

In its ruling, the court found that the prosecution had indeed failed to adequately cross-examine the witness, which was a breach of the rule in Browne v Dunn. The court held that this breach did not necessarily render the trial unfair, but it did require careful consideration of the impact on the jury's deliberations. The court also assessed the directions given to the jury and concluded that while there were some shortcomings, they did not undermine the overall fairness of the trial. Consequently, the court determined that the breaches were not of such a nature that they necessitated a retrial.

The court ordered that the conviction stand, but the matter was to be referred back to the trial judge for consideration of appropriate sentencing. The defendant's appeal against conviction was dismissed, but the case was to be reviewed for sentencing implications in light of the identified procedural issues.

Orders