R v SWC

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.