JUDGES:	CHERNOV and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 November 2002
DATE OF JUDGMENT:	29 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 207

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Criminal law – Appeal against conviction - Rape – Digital rape of girl on way home from school – Direction to jury – Whether judge’s direction to jury relating to factual issue constituted error – Miscarriage of justice – Failure by counsel to cross-examine as to complainant’s prior inconsistent statements - Whether such failure was due to negligence or the result of a forensic decision – Whether forensic decision erroneous – Whether such failure to cross-examine constituted miscarriage of justice – Obligation of impugning party to appraise former counsel of allegations – Whether trial counsel’s response should be placed before appellate court and if so, in what form.

Criminal law – Sentencing – Digital rape – Whether digital rape a less serious offence than penile rape – Total effective sentence of six years and six months’ imprisonment with five year non-parole period not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Elston	K. Robertson, Solicitor for
Public Prosecutions
For the Applicant	Mr T Danos	Coadys

CHERNOV, J.A.:

On 13 September 2000 the applicant, Mark Hastie Brown who is now aged 36, pleaded not guilty before a jury in the County Court at Melbourne to a presentment containing one count of recklessly causing injury to the 18 year old female complainant on 20 October 1999 and to one count of digitally raping her on that day. On 15 September 2000, the jury returned a verdict of guilty on both counts. The applicant admitted a number of prior convictions, including convictions for theft and burglary dating back to July 1985 and a conviction for murder on 15 March 1990 in respect of which he was sentenced to 12 years' imprisonment with a non-parole period of nine years. The applicant was on parole in relation to the murder conviction when he committed the offences in question. Not surprisingly, his parole was thereupon cancelled by the Adult Parole Board. Because of his prior conviction for murder, the applicant fell to be sentenced as a serious violent offender pursuant to s.6D of the Sentencing Act 1991. Furthermore, because the offences were committed whilst he was on parole, s.16(3)(B) of the Sentencing Act required the sentences to be served cumulatively unless exceptional circumstances were established.

After hearing a plea in mitigation made on the applicant's behalf, to which I will refer more fully later, her Honour sentenced the applicant to six months' imprisonment on count 1 and to six years' imprisonment on count 2 to be served cumulatively upon the sentence imposed on count 1. Thus, the applicant was sentenced to a total effective sentence of six years and six months' imprisonment to be served cumulatively upon the sentence he was then serving. Her Honour…

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 [2002] VSCA 207
Case: [2002] VSCA 207
Decision Date: 29 November 2002

CaseChat Overview and Summary

The case of R v Brown involved the appellant, who was convicted of the digital rape of a young girl as she walked home from school. The conviction and sentence were appealed to the court. The legal issues in the appeal centred on whether the trial judge's direction to the jury constituted an error, potentially leading to a miscarriage of justice. Another significant issue was whether the failure of the defence counsel to cross-examine the complainant regarding her prior inconsistent statements was due to negligence or a deliberate forensic decision, and if such a decision or failure amounted to a miscarriage of justice. Additionally, the court considered whether the appellant had a duty to inform former counsel of allegations against them, and if so, how this information should be presented before the appellate court.

The court examined the judge's direction to the jury, assessing whether it was appropriate and whether it might have led to an error or miscarriage of justice. The court also scrutinised the defence counsel's decision not to cross-examine the complainant on her prior inconsistent statements, determining if this was due to negligence or a strategic choice, and if the latter, whether it was an erroneous decision that prejudiced the appellant's case. Furthermore, the court deliberated on the appellant's obligation to inform former counsel of specific allegations, and the manner in which this information should be presented to the appellate court. Ultimately, the court found that the trial judge's direction to the jury did not constitute an error, and that the defence counsel's decision not to cross-examine was a legitimate strategic choice, not amounting to a miscarriage of justice. The court also concluded that the appellant's total effective sentence of six years and six months' imprisonment with a five-year non-parole period was not manifestly excessive.

The appeal was dismissed, and the conviction and sentence were upheld. The court found that the appellant's actions did not warrant a reduction in the sentence, and that the decision not to cross-examine the complainant was a legitimate strategic choice. The court also determined that the appellant had not discharged the burden of proving that the failure to cross-examine was due to negligence or that it amounted to a miscarriage of justice. Consequently, the original conviction and sentence were affirmed, and the appeal was rejected.

Orders