Legal Research
Cases
R v Coswello

R v Coswello

Case [2009] VSCA 300 17 December 2009

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No S APCR 2009 0684
v
JOHN FRANCIS COSWELLO

---

JUDGES:	BUCHANAN and NETTLE JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2009
DATE OF JUDGMENT:	17 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 300
JUDGMENT APPEALED FROM:	(Unreported, Melbourne County Court, 22 June 2009, Judge Howie)

---

CRIMINAL LAW – Multiple counts of unlawful and indecent assault of male under 16 years – Multiple counts of commission of acts of gross indecency – Conviction appeal - Defence challenge to reliability of complainant’s evidence – Whether trial judge erred when directing jury in relation to cross examination of complainant – Defence request for redirection refused - Operation of rule in Browne v Dunn (1893) 6 R 67 HL in a criminal
trial - Whether resulting substantial miscarriage of justice to applicant – Application of proviso to s 568(1) of Crimes Act 1958 - Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC	Stynes Dixon Lawyers

BUCHANAN JA:

I agree with Williams AJA, for the reasons which her Honour has stated, that the application for leave to appeal against conviction should be granted, the appeal heard instanter and allowed, the conviction entered in the County Court set aside and the appellant re-tried.

The point of the requirement to put a proposition to a witness is to give the witness ‘an opportunity of making any explanation which is open to him’.[1] To deny the witness that opportunity is unfair. Where a witness gives evidence of the occurrence of an event which is the central issue in a trial, it will not generally be unfair to refrain from putting to the witness that the event he or she has described did not take place. The earlier evidence is usually a sufficient explanation.

[1]Browne v Dunn (1893) 6 R 67, 70-1 (Lord Hurschell).

NETTLE JA:

Under the Rule in Browne v Dunn,[2] it is the duty of counsel before impeaching the evidence of a witness to put to the witness in cross-examination the version of events for which counsel contends.[3] As Redlich JA stated in R v Thompson:[4]
[2]Ibid 70-71.
[3]R v Fenlonand Neal (1980) 71 Cr App R 307, 313; R v Birks (1990) 19 NSWLR 677, 689; R v Demiri [2006] VSCA 64 [35]; Curwen v Vanbreck Pty Ltd (as Trustee for the WS and NR Harvey Family Trust) [2009] VSCA 284 [21] (Redlich JA).
[4]R v Thompson (2008) 187 A Crim R 89.

The rule in Browne v Dunn is a rule of law and practice. In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce…

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 Coswello

Details

AGLC: R v Coswello [2009] VSCA 300
Case: [2009] VSCA 300
Decision Date: 17 December 2009

CaseChat Overview and Summary

The case of R v Coswello involved the appellant, who was convicted on multiple counts of unlawful and indecent assault and acts of gross indecency involving a male under 16 years. The case was heard in the Court of Appeal, where the appellant sought to appeal his conviction on the basis of the trial judge's handling of the complainant's evidence during cross-examination. The appellant argued that the trial judge's direction to the jury was flawed, which resulted in a substantial miscarriage of justice.

The legal issues central to this appeal were whether the trial judge's direction to the jury regarding the cross-examination of the complainant was erroneous, and whether such an error led to a substantial miscarriage of justice under the proviso to s 568(1) of the Crimes Act 1958. Additionally, the court had to consider the applicability of the rule in Browne v Dunn (1893) 6 R 67 HL in the context of the appellant's criminal trial and his request for a redirection to the jury after the initial direction.

The Court of Appeal found that the trial judge did indeed err in the way he directed the jury concerning the complainant's cross-examination. The court concluded that this error led to a substantial miscarriage of justice, warranting the allowance of the appeal. The court held that the trial judge's direction did not properly align with the principles set out in Browne v Dunn, which necessitated that the jury be appropriately guided on the reliability and weight of the complainant's testimony. As a result, the appellant's conviction was quashed, and the matter was remitted for a new trial.

The final orders of the court were to allow the appeal, quash the conviction, and remit the case to the lower court for a new trial. The court found that the errors in the trial judge's direction were significant enough to impact the fairness of the proceedings, thereby necessitating a retrial to ensure that the appellant received a fair trial.

Orders