R v SWC

Case [2007] VSCA 201 20 September 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 175 of 2006

THE QUEEN
	v
SWC

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JUDGES:	MAXWELL P, KELLAM JA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2007
DATE OF ORDERS:	2 August 2007
DATE OF REASONS FOR JUDGMENT:	20 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 201

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CRIMINAL LAW – Appeal against conviction – Sexual penetration of and indecent acts with a child under the age of 16 years – Failure by defence counsel to cross-examine key Crown witnesses on matters repudiated by accused in evidence – Failure to comply with rule of practice in Browne v Dunn – Direction to jury – Direction incapable of curing miscarriage caused by departure from rule in Browne v Dunn – Cross-examination of accused by prosecutor as to whether Crown witnesses lying – Whether cross-examination impermissible – Appeal against conviction allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G F Meredith	Dowling McGregor Thomas

MAXWELL P,
KELLAM JA,
KAYE AJA:

The applicant was charged on three counts of sexual penetration of a child of 16 years contrary to s 48 of the Crimes Act 1958 (counts 1, 2 and 5). Those offences were alleged to have occurred in relation to his 16 year old niece, (J). He was further charged on two counts of committing an indecent act with a child under the age of 16 years contrary to s 47 of the Crimes Act (counts 3, 4). It was alleged that those counts occurred in relation to the applicant’s 13 year old daughter, (K). At his trial in the County Court at Mildura in February 2006, the applicant was convicted by the jury on all five counts.

The application for leave to appeal was based on four grounds. On the hearing of the appeal the Crown conceded that the application should be granted on grounds 1 and 2. We note that counsel for the respondent first gave notice to the Court, of the position taken by the Crown, in his written submissions more than one month before the date scheduled for hearing of the appeal. The Court is indebted to counsel for the timely notification of the attitude of the respondent. Upon considering the written submissions by counsel for the applicant and counsel for the respondent, we came to the conclusion that the application for leave to appeal should be granted, and accordingly orders were made to that effect. We now provide reasons for those orders.

It is not necessary to rehearse the evidence in any detail. Briefly, at the time at which the incidents comprising counts 1, 2 and 3 occurred, the applicant lived with his family in country Victoria. His brother (M) and his family lived nearby. In early 2002 the applicant’s wife was terminally ill, and was in a serious condition. In her evidence J stated that, at that time, she regularly attended the applicant’s home…

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 SWC

Details

AGLC: R v SWC [2007] VSCA 201
Case: [2007] VSCA 201
Decision Date: 20 September 2007

CaseChat Overview and Summary

In the matter of R v SWC, the defendant was convicted in the County Court of Victoria for offences of sexual penetration of and indecent acts with a child under the age of 16 years. The Crown's case was based on the testimony of two key witnesses, the child victim and an adult witness, who both provided accounts of the alleged offences. The defendant appealed the conviction on several grounds, including the failure of defence counsel to cross-examine the key Crown witnesses on matters repudiated by the accused in their evidence.

The primary legal issue for the court was whether the failure to cross-examine the witnesses on the repudiated matters constituted a breach of the rule of practice set out in Browne v Dunn, and if so, whether this breach was sufficiently serious to necessitate the quashing of the conviction. The court was also required to determine whether the trial judge's directions to the jury could cure any miscarriage of justice caused by the failure to cross-examine, and whether the cross-examination of the accused by the prosecutor, in which the accused was asked if the Crown witnesses were lying, was permissible.

The court found that the failure to cross-examine the witnesses on the repudiated matters did indeed constitute a breach of the rule of practice in Browne v Dunn. However, the court also determined that the trial judge's directions to the jury were incapable of curing the miscarriage of justice caused by this departure from the rule. Furthermore, the court held that the cross-examination of the accused by the prosecutor, which questioned whether the Crown witnesses were lying, was impermissible. Given these findings, the court concluded that the appeal against conviction should be allowed.

As a result of the appeal, the convictions were quashed, and the matter was remitted to the County Court for a retrial. The court emphasised the importance of adherence to the rule of practice in Browne v Dunn, and the need for trial judges to provide adequate directions to juries in cases where this rule is not followed. Additionally, the court reiterated the prohibition on prosecutors cross-examining defendants on matters of credibility of witnesses.

Orders