R v Astbury (Ruling No 5)
[2018] VSC 637
•19 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0290
| THE QUEEN |
| v |
| 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 onto him.[4]
[4]T690.30–691.3.
In cross-examination the evidence was as follows:
Question:You see, what I’m suggesting is that your story of what happened is a tale of fantasy, it didn’t happen that way?
Answer:No, it’s not at all. I resent that comment.
Question:And you have had the opportunity of watching the evidence develop in this trial, and you have made up — ?
Answer:My story hasn’t changed from the day the event occurred.
Question:I see. And I’ll finish the question if I may — and that you have made up the evidence of this knees into the chest as you’re falling together in an attempt to explain the medical evidence of the severity of his injuries?
Answer:No, that’s not the case.
Question:And you’ve added in a few, not punches, not kicks, but knees, to explain other parts of that evidence, being the fractures to the floating ribs?
Answer:No, I haven’t made up anything I’ve said.
Question:And you’ve made up this preposterous physically ridiculous proposition of you elbowing him in the way you described, again to feed into other fractures?
Answer:No.
Question:And that’s what happened on this night, this day, was that you lost your temper and in a fury rained blows, upon this man that led to his death?
Answer:No. That’s not the case. That was exactly how I described.[5]
[5]T727.3–727.24.
The closing addresses were completed on 16 October 2018. At the close of the prosecution’s closing address, the defence sought a Browne v Dunn direction. Having had the benefit of argument from both sides, both orally and in writing, I then ruled that a Browne v Dunn direction should be given to the jury. I said I would publish my reasons subsequently. These are those reasons.
The rule in Browne v Dunn is a ‘rule of law and practice’ sometimes described as a ‘rule of professional practice’.[6] The rule applies in criminal and civil trials. 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 a court’s assessment, or, in this case, a jury’s assessment on 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,[7] and diminishes the jury’s capacity to assess the merits of the issue.[8]
[6]R v Demiri [2006] VSCA 64 [35].
[7]R v Thompson (2008) 21 VR 135, 157 [111].
[8]R v Morrow (2009) 26 VR 526, 539 [48].
While the rule in Browne v Dunn applies in criminal trials, the content of the rule is narrower than in civil proceedings. This is due to the accusatorial nature of the criminal trials, the obligation of the prosecution to present its whole case and the burden of proof.[9] These matters should be taken into account when considering the scope of the rule and the remedies for its breach.
[9]MWJ v R (2005) 222 ALR 436.
The rule does not oblige counsel to give witnesses the chance to respond to evidence or submissions. The rule only obliges counsel to give witnesses the chance to respond to evidence or submissions that form part of counsel’s own case.[10]
[10]Ibid; R v MG (2006) 175 A Crim R 342.
In R v Morrow[11] Redlich J said:
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 rules. 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 cast 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. 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.[12]
[11](2009) 26 VR 526.
[12]Ibid 539–40 [49] (citations omitted).
Fundamentally, in deciding whether or not to give a direction, the judge should consider whether the failure was material in the context of the case. The judge should take into account the extent of the breach, and if relatively minor, a direction should generally not be given.[13]
[13]KC v R (2011) 32 VR 61.
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. In R v Morrow[14] Redlich J said:
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.
[14](2009) 26 VR 526, 543 [60] (citations omitted).
Consideration
The prosecution opened its case on the basis that the accused had delivered blows to the deceased with his hands or feet while the deceased was on the ground, causing his death. It was not the prosecution’s case when it opened that the accused jumped on the victim.
Central in this case was the evidence of Dr Malcolm Dodd, the forensic pathologist. Dr Dodd’s evidence centred primarily on the possible mechanism of the compression injury to the chest causing death. Dr Dodd considered that:
It could be a number of ways, it could literally just be forceful sitting, landing on top, it could be knees, but I expect it would be more than that, it could be any of those things repeated, as opposed to one single application.[15]
[15]T504.8–504.13.
Dr Dodd gave evidence about his experience providing autopsy and forensic pathology services in the Solomon Islands, including examination of injuries to the chest and rib area and to the musculoskeletal system. Dr Dodd had been to the Solomon Islands approximately 26 times. About a third of the bodies he examined there had almost identical rib fractures to those in this case. He said it was a quirk of the Solomon Islands civil war that enemies were ‘dispatched’ by jumping on their chest or ‘chucking a boulder on their chest’.[16] In re-examination Dr Dodd added that most of the corpses he examined in the Solomon Islands were skeletal or significantly decomposed and so could not be externally examined. The only reason he knew what had happened in those cases was because witnesses had given a generic description of jumping on the chest or the use of boulders.[17]
[16]T438.1−18.
[17]T486.9−17.
It was never put to the accused in cross-examination that he jumped on the deceased. However, in cross-examination, in answer to a question, the accused gave evidence that he ‘didn’t jump from standing on [the deceased] onto him’.[18]
[18]T691.2.
The difficulty with this case is that Dr Dodd gave various hypotheses for the way in which the compression injury to the chest could have been caused. He did not specifically say in his evidence that jumping was a cause or a possible cause of injury to the deceased. I consider in circumstances where the prosecution has opened the case in one way, and then closed the case specifically on the basis that the accused jumped on the deceased’s chest, that it was incumbent on the prosecution in
cross-examination to put this squarely to the accused. While it may well be that the accused would have given a denial and no more, the jury were denied the opportunity to hear the accused’s response to the question.
As such, I consider that there has been non-compliance with the rule and that the jury ought to have been told that the prosecution’s failure to pursue the allegation with the accused bears upon the weight they attach to that allegation.
While there were denials by the accused of having jumped on the deceased, those denials were not in the context of it being put to him that that was, in fact, the method of chest compression, given that was how the prosecution case was closed.
The defence made a further submission that there was no evidentiary support for the way in which the prosecution closed its case, attributing the accused jumping on the deceased as a cause of his death. As such, it was submitted that the prosecutor should retract the submission and advise the jury that there was no evidentiary basis to make it. I do not accept the defence’s argument that there was no evidentiary basis. The precise mechanism of the rib fractures was traversed at length with Dr Dodd. Dr Dodd discussed his experience in the Solomon Islands and that jumping was known to be a common cause of the death he examined. Further, the accused specifically denied jumping on the deceased.
I consider there was an evidentiary basis in this case on this issue. The real vice is the prosecution’s failure to put the allegation to the accused.
In my opinion the defence’s submission in relation to the Browne v Dunn direction should be upheld.
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