R v Brown - [2004] VSCA 59

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 347 of 2003

THE QUEEN
	v.
RAPHAEL BROWN

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JUDGES:	BATT, J.A. and SMITH and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 and 24 March 2004
DATE OF JUDGMENT:	22 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 59

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CRIMINAL LAW – Conviction appeal – Recent invention and right to silence – Hearsay evidence – Adequacy of directions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. P.G. Priest, Q.C. and Mr. P. D’Arcy	Galbally and O’Bryan
For the Respondent	Mr. N.T. Robinson	Ms. K. Robertson, Solicitor for Public Prosecutions

BATT, J.A.:

I have had the benefit of reading the reasons for judgment of Smith, A.J.A, and those of O’Bryan, A.J.A. I do not repeat the facts, which may be found in their Honours’ respective reasons.

I agree with Smith, A.J.A. that, for the reasons given by him, grounds 2A and 2B and 3A and 3B fail.

I agree with O’Bryan, A.J.A. that, for the reasons given by him, grounds 1A and 1B also fail. In particular, I agree that, in light of the course of proceedings, the appeal points are the three identified by his Honour and also that no miscarriage of justice occurred in the way raised by any of those points. In relation to the third point I add the following. By the time her Honour came to give the direction impugned by the third application for discharge of the jury, the jury’s request for the reading of transcript of evidence of Barclay had been refined in writing and confined essentially to the hearsay conversations with Deutschmann. It was to that request that her Honour’s direction was tailored. Moreover, and in any event, by its terms the direction was confined to the hearsay conversations. In my respectful view, her Honour, having told the jury that the hearsay evidence was inadmissible and to be disregarded, was not obliged to explain why the common law treated it as inadmissible. Nor do I consider that the directions about Rodger’s notes are germane to grounds 1A and 1B. It is unnecessary to consider whether, counsel for the applicant having in a compendious and indirect question sought, impermissibly, from hearsay evidence from Barclay, the prosecutor was entitled to have that evidence elaborated.

I turn now to grounds 5A, 5B and 5C, concerning recent intervention and the right to silence in relation to the applicant’s evidence that the object in his car was a white lever-arch folder. Although I have arrived at the same ultimate conclusion as O’Bryan, A.J.A, I have travelled by a slightly different route, as I shall explain.

It is to be noted that these grounds concern themselves only with the prosecutor’s cross-examination of the applicant and the expert, not with his final address concerning the white folder, presumably because counsel for the applicant was substantially satisfied with the judge’s direction as to that part of the prosecutor’s address, for which he had thanked her. Nevertheless, the outline of argument for…

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.

Continue reading R v Brown

Details

AGLC: R v Brown [2004] VSCA 59
Case: [2004] VSCA 59
Decision Date: 22 April 2004

CaseChat Overview and Summary

In the matter of R v Brown, the appellant sought to appeal his conviction for conspiracy to defraud the Commonwealth, arguing that the trial judge's handling of recent invention and hearsay evidence was flawed. The case was heard in the Court of Criminal Appeal. The appellant contended that the trial judge improperly allowed hearsay evidence that was not properly tested and that the directions given to the jury regarding the use of such evidence were inadequate. The appellant also argued that the trial judge should have instructed the jury that the recent invention of evidence was not to be considered as a factor in assessing the credibility of the appellant.

The legal issues before the court involved the proper handling of hearsay evidence and the recent invention of evidence, as well as the adequacy of the trial judge's directions to the jury regarding these matters. The court had to determine whether the trial judge's handling of the evidence and directions was appropriate and whether it might have affected the fairness of the trial.

The court found that the trial judge's handling of the evidence and the directions given to the jury were adequate. The court held that the trial judge had correctly allowed the hearsay evidence to be presented and had provided sufficient directions to the jury on how to consider this evidence. The court also found that the trial judge's directions regarding the recent invention of evidence were appropriate and did not prejudice the appellant. The court concluded that the trial judge had properly considered the evidence and provided adequate directions to the jury, and that the appellant's conviction was therefore upheld.

No further orders were made by the court. The appeal was dismissed.

Orders