[2009] VSCA 291 [1st Revision, 24 March 2011, para [63]]
JUDGMENT APPEALED FROM:
R v Stephen Peter Morrow (Unreported, County Court of Victoria, 18 April 2008, Judge Wodak)
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Criminal Law – Sexual penetration of student under teachers care – Serious forensic disadvantage – s 61(1A) Crimes Act 1958 – Failure to ‘instruct’ jury – ‘Comment’ by trial judge insufficient – Misleading form of Liberato direction given – R v BDX [2009] VSCA 28 followed – Rule in Browne v Dunn – Extent of counsel’s duty – Whether cross-examination of complainant sufficient where positive case to be advanced – Consequences of breach of obligation – Whether breach permitted adverse inference as to credibility of accused – Whether such a direction should be given – Content of direction – Counts alleging offence between dates – Latent ambiguity – Absence of particulars as to conduct constituting offence – Whether inconsistent verdicts – Combination of errors giving rise to substantial miscarriage.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC
Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant
Mr M J Croucher
Tony Danos
NETTLE JA:
I have had the advantage of reading in draft the reasons for judgment of Redlich JA and agree with his Honour that the convictions should be quashed and a new trial ordered.
I wish only to add the following to what his Honour has said in his reasons concerning the application of the Rule in Browne v Dunn.[1]
[1](1893) 6 R (HL) 67.
In this case defence counsel failed to comply with the rule by omitting to put to the complainant in cross-examination the substance of evidence which the applicant later gave as to the timing and circumstances of the episodes of sexual intercourse which he admitted that he had with the complainant. It followed, as Redlich JA observes, that it was open to the trial judge to direct the jury that they could take the lack of puttage into account in assessing the weight to be attached to the applicant’s evidence on those matters.
So to say, however, does not mean that it is generally appropriate for a trial judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the accused. In recent times there have been a number of appeals in this court in which it has appeared that trial judges regard the making of adverse comments as necessary or desirable whenever there is a failure by defence counsel to comply with the rule. Such an approach is misplaced. As the decision of the High Court in MWJ v The Queen[2] makes clear, the rule in Browne v Dunn does not apply to criminal…
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.
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AGLC
R v Morrow [2009] VSCA 291
Case
[2009] VSCA 291
Decision Date
CaseChat Overview and Summary
In the matter of R v Morrow, the appellant was convicted of multiple offences of sexual penetration of a student under his care. The case was heard by the Court of Appeal of the Supreme Court of Victoria. The appeal was brought against the appellant's conviction and sentence, raising issues regarding the adequacy of the trial judge's directions to the jury, the sufficiency of cross-examination of the complainant, and the impact of these errors on the fairness of the trial.
The legal issues before the court included whether the trial judge failed to properly instruct the jury on the elements of the offences, specifically under section 61(1A) of the Crimes Act 1958. Additionally, the court considered whether the trial judge's comments were sufficient to overcome any prejudice caused by the failure to instruct, and whether the cross-examination of the complainant was adequate. The court also examined whether the combination of these errors led to a substantial miscarriage of justice.
The court found that the trial judge did not properly instruct the jury on the elements of the offence, which was a significant error given the serious forensic disadvantage faced by the appellant. The judge's comments were deemed insufficient to remedy this failure. The court noted that the cross-examination of the complainant was not sufficient to meet the required standard, and that the failure to properly instruct the jury and inadequate cross-examination combined to cause a substantial miscarriage of justice. The court determined that the combination of these errors was critical in its decision, leading to the conclusion that the appeal should be allowed.
The final orders of the court were to quash the convictions and order a retrial. The court emphasised the importance of proper jury instructions and the duty of counsel in cross-examining key witnesses to ensure a fair trial. The errors identified by the court were deemed to have significantly impacted the fairness of the original trial, warranting a retrial to correct these procedural flaws.