CATCHWORDS: CRIMINAL LAW - Appeal against conviction - failure by defence counsel to put case later given by accused - overuse of rule in Browne v Dunn by Crown - recent invention - whether trial judge’s directions adequate - other possible reasons for failure by defence counsel to cross-examine - principles applicable to summing up when such issues raised - R v Birks (1990) 19 NSWLR 677 and R v Manunta (1990) 54 SASR 17 followed - questions asked by Crown Prosecutor (“so witness A must be lying”) - why inappropriate and inadmissible.

Counsel:	Mr BG Devereaux for the appellant Mrs L Clare for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	22 July 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11 August 1998

This case highlights the problems that ensue when defence counsel fails to put his case to Crown witnesses, followed by an arguably excessive resort by the Crown Prosecutor to the so-called rule in Browne v Dunn[1]. We say “so-called rule” because it involves a rule of professional practice and certain countermeasures that the Court may permit to be taken when a cross-examiner fails to observe the rule. The essence of the professional rule is that a cross-examiner should put to an opponent’s witness matters that are inconsistent with what the witness says and which are intended to be asserted in due course. It is generally necessary to give a witness who might be in a position to contradict the cross-examiner’s case the opportunity to do so.[2] Countermeasures become necessary when failure to observe the rule deprives the Court of the opportunity of hearing relevant responses from the witness, or when unfair statements are made about a witness or the witness’ evidence, or when it may give unfair advantage to a party who lies by and belatedly produces a version tailored to meet the evidence.

[1] (1893) 6 R 67.

[2] Cf. Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, 16, 17, 21, 23 and 26; R v Birks (1990) 19 NSWLR 677, 686, 688, 689, 691.

Recent decisions notably the Allied Pastoral Holdings[3] case and Birks[4] have offered useful guidance upon appropriate directions when issues of this kind arise in a criminal trial. The cases however do not clearly mark out how far counsel must go in putting the client’s case in order to escape valid criticism if the evidence eventually goes beyond what has been foreshadowed. We do not think it possible to suggest a universal formula or principle that will tell counsel the amount of detail that…

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 Foley

Details

AGLC: R v Foley [1998] QCA 225
Case: [1998] QCA 225
Decision Date: 11/08/1998

CaseChat Overview and Summary

In the case of R v Foley, the appellant, Stephen Kenneth Foley, appealed against his conviction for assault occasioning bodily harm. The appeal was heard by the Supreme Court of Queensland, which found that the conviction should be set aside and no retrial ordered. The court identified several issues in the conduct of the trial that compromised the fairness of the proceedings. Firstly, the defence counsel's failure to put the appellant's case to Crown witnesses in a comprehensive manner meant that the appellant's essential defence was not adequately explored during cross-examination. This included the absence of cross-examination suggesting that the complainant may have fallen face forward onto glass, thereby causing his injuries. Secondly, the Crown Prosecutor's excessive reliance on the principle in Browne v Dunn and the inappropriate questions asked of the appellant during cross-examination further contributed to the unfair trial. The court emphasised the importance of proper directions to the jury when such issues arise, and noted that the trial judge's summing up was inadequate in this case.

The court's decision to set aside the conviction was based on the cumulative effect of these issues, which ultimately led to an unsafe result. The court found that a retrial would be unduly oppressive given the appellant's significant inconvenience and the fact that he had already served a substantial portion of his sentence. As a result, the Court ordered that no retrial be held, and the conviction was set aside.

Orders