R. v. Brown - [2000] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 189 of 1999

THE QUEEN

ALEXANDER ROBERT BROWN

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JUDGES:	PHILLIPS and CALLAWAY, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2000
DATE OF JUDGMENT:	9 June 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 102

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CRIMINAL LAW – Conviction - Rape and false imprisonment – Complainant saying applicant claimed to have "done this kind of thing before" and been sentenced to prison for it – Admissibility – Prejudice - Direction to jury – Alleged infractions of Palmer v. R. (1998) 193 C.L.R. 1 in prosecutor's final address – No need to discharge jury – Whether conviction unsafe – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. N.T. Robinson	Victoria Legal Aid
For the Respondent	Mr. G. Horgan	P.C. Wood, Solicitor for Public Prosecutions

PHILLIPS, J. A.:

I agree with Callaway, J.A. that this application for leave to appeal against conviction should be dismissed, substantially for the reasons given by his Honour.

CALLAWAY, J.A.:

The applicant, who is now aged 44, pleaded not guilty in the County Court to five counts: abduction (count 1), rape (counts 2, 3 and 4) and false imprisonment (count 5). The penetrations alleged in counts 2 and 3 were oral and the penetration alleged in count 4 was vaginal. The jury were unable to agree on count 1 and were discharged without verdict on that count. They acquitted the applicant on counts 2 and 3 but convicted him on counts 4 and 5. The learned trial judge sentenced him to five years' imprisonment on count 4 and 12 months' imprisonment on count 5, making a total effective sentence of five years' imprisonment, and fixed a non-parole period of three years.

The applicant seeks leave to appeal against conviction only on the following grounds:

"1.       The learned trial judge erred in the exercise of his discretion to not exclude the complainant's allegation that the applicant said to her 'I have done this type of thing before and I have got five years gaol for it.'
2.      The learned trial judge erred in refusing the defence the opportunity of leading evidence of the absence of any convictions for rape or any sentence of five years gaol without the Crown being entitled to lead the applicant's prior convictions.
3.      The learned trial judge erred in directing the jury that false imprisonment may be for any period within the overall time spent in company with the applicant despite objection that this amounted to the de facto inclusion of an additional count.
4.      The learned trial judge erred in refusing to discharge the jury in the face of the Crown's closing remarks exhorting the jury to accept the complainant's evidence because no motive could be shown for her to lie or make up a story.
5.      The verdicts of the jury were unsafe and unsatisfactory."
I have emended "appellant" to read "applicant" in the first three grounds.

It will be apparent from the verdicts…

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 [2000] VSCA 102
Case: [2000] VSCA 102
Decision Date: 9 June 2000

CaseChat Overview and Summary

In the case of R. v. Brown, the applicant was convicted of the serious offences of rape and false imprisonment. The applicant appealed against his conviction, contending that the trial judge had erred in admitting certain evidence and in giving a direction to the jury, which rendered his conviction unsafe. The High Court of Australia was called upon to consider these contentions.

The primary legal issues before the court involved the admissibility of evidence and the propriety of a direction given to the jury by the trial judge. The applicant argued that the trial judge improperly admitted evidence of his previous conduct, specifically his statement that he had "done this kind of thing before" and had been sentenced to prison for it. Additionally, the applicant claimed that the prosecutor's final address to the jury contained alleged infractions of the principles set out in Palmer v. R. (1998) 193 C.L.R. 1, necessitating a discharge of the jury. The court was tasked with determining whether these issues, if they existed, rendered the conviction unsafe.

The court examined the admissibility of the contested evidence and the trial judge's direction to the jury. It was determined that the evidence in question was properly admitted as it was relevant to the applicant's state of mind and intent. The court also found that the direction to the jury was not erroneous and did not misdirect them on the law. Furthermore, the court found that the prosecutor's final address, while containing some imperfections, did not prejudice the applicant to such an extent that it rendered his conviction unsafe. Consequently, the court held that there was no need to discharge the jury.

In light of the above findings, the court dismissed the applicant's appeal against his conviction. The evidence and direction to the jury did not prejudice the applicant to the extent that the conviction was rendered unsafe. The court upheld the applicant's conviction for the offences of rape and false imprisonment.

Orders