R v MG - [2006] VSCA 264

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 146 of 2005
	v
MG

---

JUDGES:	NETTLE and ASHLEY JJ A and COLDREY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2006
DATE OF JUDGMENT:	4 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 264

---

Criminal Law – Appeal against conviction – Sexual assaults and indecent acts involving child under the age of 16 – Credibility of parties crucial issue – Adequacy of Longman warning considered – Rule in Browne v Dunn misapplied – Appeal against conviction allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M P Cahill	Tyler Tipping & Woods Solicitors

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Coldrey AJA.

I agree with his Honour for the reasons that he gives that the application for leave to appeal should be allowed, that the appeal should be treated as instituted and heard instanter and allowed and a new trial should be had.

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Coldrey AJA. I agree with his Honour that the appeal should be allowed. That conclusion does not depend upon the particular application of the rule in Browne v Dunn[1] in criminal cases. Even if, which is not the case, the rule could be simply transposed from the civil to the criminal jurisdiction,[2] Coldrey AJA shows very clearly that with respect to two matters the directions given by the learned trial judge erroneously built upon cross-examination of the applicant which was itself based upon a false premise; whilst, in relation to a third matter, his Honour seems to have overlooked the fact that the applicant had asserted long before trial the circumstances of which he gave evidence at trial.
[1](1893) 6 R 67.
[2]As to which see, most recently, MWJ v The Queen (2005) 80 ALJR 329.

Coldrey AJA has referred to MWJ v The Queen.[3] The resolution of this appeal does not depend upon the issues there discussed. Concerning MWJ, which may well require full analysis on some other occasion, I only make these few observations.
[3]Citation at footnote 2.

First, MWJ raised the question whether an accused is precluded from seeking to rely upon supposed inconsistencies in the evidence of Crown witnesses if a Crown witness whose evidence the accused seeks to impugn has not been given the opportunity – as by being recalled at the instance of the accused – to address the alleged inconsistencies. It did not raise the question whether failure by an accused to put to a Crown witness or witnesses a version of events which the accused later gives in evidence may be used to impugn the pertinent evidence of the accused, or his credit, or both; or the question whether failure by an accused to put to a Crown witness or witnesses a version of events…

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 MG

Details

AGLC: R v MG [2006] VSCA 264
Case: [2006] VSCA 264
Decision Date: 4 December 2006

CaseChat Overview and Summary

The case of R v MG was heard in the Court of Appeal, where the appellant was convicted of sexual assaults and indecent acts involving a child under the age of 16. The dispute centred on the credibility of the parties, particularly the complainant and the appellant. The lower court had found the appellant guilty based on the evidence presented, but the appellant contested this decision on appeal, arguing that the trial judge had inadequately warned the jury about the need to approach the complainant's evidence with caution.

The court was required to determine whether the trial judge had correctly applied the Longman warning, a judicial direction aimed at alerting the jury to the potential unreliability of a single witness's evidence. Additionally, the court needed to assess whether the trial judge had misapplied the rule in Browne v Dunn, which deals with the evaluation of conflicting evidence from different witnesses. The appeal hinged on whether the trial judge's handling of the evidence and instructions to the jury was sufficient to ensure a fair trial.

The Court of Appeal found that the trial judge had not adequately warned the jury about the need for caution in accepting the complainant's evidence. Furthermore, the court determined that the trial judge had misapplied the rule in Browne v Dunn, leading to an incorrect evaluation of the evidence. These errors undermined the fairness of the trial, and thus the conviction was deemed unsafe and unsatisfactory. As a result, the Court of Appeal allowed the appeal against conviction, quashed the original conviction, and ordered a new trial.

The Court of Appeal did not make any further orders beyond allowing the appeal and ordering a new trial. The decision underscored the importance of correctly applying judicial directions and legal principles to ensure the integrity of the criminal justice process, particularly in cases where the credibility of witnesses is pivotal.

Orders