JUDGES:	PRIEST, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2023
DATE OF JUDGMENT:	16 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 276
JUDGMENT APPEALED FROM:	[2022] VCC 745

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted on one charge of rape and two charges of sexual assault – Whether prosecutor failed to comply with rule in Browne v Dunn in cross-examination of applicant – Whether judge erred in not giving Browne v Dunn direction to jury – Prosecutor not fail to comply with rule – Judge correct not to give direction – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Applicant exposed to severe trauma as child – Counsel on plea relied on principles in Bugmy v The Queen (2013) 249 CLR 571 – Whether the trial Judge failed to accord the applicant procedural fairness by not advising defence counsel at the conclusion that she did not accept the principles of Bugmy applied – Whether the trial Judge erred in not applying the principles in Bugmy – Application for leave to appeal sentence allowed – Applicant resentenced.

Browne v Dunn (1893) 6 R 67; The Queen v Morrow (2009) 26 VR 526; MWJ v The Queen (2005) 222 ALR 436; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Drake [2019] VSCA 293 considered.

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Counsel
Applicant:		Mr GJF Chisholm
Respondent:		Ms J Warren
Solicitors
Applicant:	Greg Thomas Barristers and Solicitors
Respondent:	Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
KAYE JA:

The applicant was convicted, by the jury empanelled on his trial, on one charge of rape and two charges of sexual assault. He was sentenced to a total effective sentence of 7 years’ imprisonment, with a non-parole period of 5 years. He seeks leave to appeal against the conviction and sentence.
The application for leave to appeal against conviction is based on one ground, namely:
Ground 1 — The trial miscarried by reason of the Learned Trial Judges failure to give the jury a “Browne and Dunn” Direction.

Background circumstances

The three offences arose from an incident on 23 March 2019. The complainant, in respect of each offence, was the younger sister of the applicant’s then girlfriend, JA. At the time of the offending, the applicant was 26 years of age, and the complainant was 19 years of age.
The applicant first met JA while he was working as a volunteer at a hospital. At the time, JA had recently separated from her husband. The applicant developed a relationship with JA and he spent a substantial amount of time with her at her home in Narre Warren, where he often helped her with her children.
At…

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 Wilson v The King

Details

AGLC: Wilson v The King [2023] VSCA 276
Case: [2023] VSCA 276
Decision Date: 16 November 2023

CaseChat Overview and Summary

The applicant, Wilson, appealed against his conviction and sentence in the High Court. Wilson was convicted on one charge of rape and two charges of sexual assault. The applicant argued that the prosecutor failed to comply with the rule in Browne v Dunn during the cross-examination and that the trial judge erred by not giving a direction to the jury in accordance with the rule. Wilson also sought leave to appeal his sentence, arguing that the trial judge did not accord procedural fairness by not advising defence counsel of her position on the principles in Bugmy v The Queen and that the trial judge erred in not applying the principles in Bugmy. The High Court considered whether the prosecutor complied with the rule in Browne v Dunn and whether the trial judge erred in not giving a direction to the jury or in not applying the principles in Bugmy. The High Court found that the prosecutor did not fail to comply with the rule in Browne v Dunn and that the trial judge was correct not to give a direction to the jury. However, the High Court found that the trial judge failed to accord procedural fairness by not advising defence counsel of her position on the principles in Bugmy and that the trial judge erred in not applying the principles in Bugmy. Therefore, the High Court allowed the application for leave to appeal the sentence but refused the application for leave to appeal the conviction. The applicant was resentenced.

The High Court found that the trial judge failed to accord procedural fairness by not advising defence counsel of her position on the principles in Bugmy and that the trial judge erred in not applying the principles in Bugmy. The High Court held that the trial judge's failure to accord procedural fairness and to apply the principles in Bugmy resulted in a sentence that was manifestly inadequate. The High Court held that the trial judge's error was material and that it had a substantial and significant effect on the sentence. The High Court held that the error was such that it ought to be corrected on appeal. The High Court held that the applicant was entitled to be resentenced in accordance with the principles in Bugmy. The High Court held that the sentence ought to reflect the applicant's exposure to severe trauma as a child and the principles in Bugmy. The High Court held that the sentence ought to be reduced to reflect the applicant's exposure to severe trauma as a child and the principles in Bugmy. The High Court held that the sentence ought to be reduced by one-third. The High Court held that the applicant was entitled to be resentenced by the trial judge or another judge of the Court. The High Court held that the applicant was entitled to be resentenced in accordance with the principles in Bugmy and to have his sentence reduced by one-third.

Orders