Criminal law - Appeal against conviction - Scope and application of the rule in Browne v Dunn - Directions as to evidence for determination of verdicts - Fairness and balance of the directions - Turns on own facts

Evidence Act 1906 (WA), s 106HB

Application for an extension of time in which to appeal refused

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840

Ellis v Wallsend District Hospital [1989] 17 NSWLR 553

Lazarevic v The State of Western Australia [2007] WASCA 156

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

McKinnon v The State of Western Australia [2010] WASCA 51

MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436

Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219

Thomas v Van Den Yssel (1976) 14 SASR 205

1 McLURE P: The appellant seeks an extension of time, leave to appeal and, if an extension of time and leave are granted, to appeal against his conviction on one count of sexual penetration and four counts of indecent dealing. The complainants the subject of the charges were three children. Complainant 1 and complainant 2 were aged 11 and complainant 3 was aged 7 at the time of the conduct complained of. The appellant, who gave evidence at his trial, was acquitted on two counts both of which related to complainant 3.

2 The appeal notice was filed nearly six months after the appellant was convicted. He contends that:

(1) the trial judge erred in failing to direct the jury that:

(a) they were not compelled to accept the unchallenged evidence of the appellant;

(b) if a witness is not cross-examined on a particular matter, that was a good reason for accepting that witness's evidence, particularly if it was uncontradicted by other evidence; and

(c) it would usually be unfair to reject evidence which had not been challenged as untrue or mistaken in cross-examination;

(2) the trial judge erred in directing the jury that they could rely on the evidence of each of the complainants to convict the appellant if they were satisfied beyond reasonable doubt of its truthfulness and accuracy when, as a matter of law, they could only make a finding of guilt having regard to all of the evidence in relation to that charge, including the appellant's evidence;

(3) the trial judge erred in failing to give a balanced and fair direction to the jury and in failing to put the defence case adequately or at all;

(4) the above grounds individually or, alternatively, cumulatively caused the trial to miscarry.

3 The complainants were examined and cross-examined in August 2008. The giving of their evidence was the subject of a visual recording which was admitted as the evidence-in-chief of the complainants under s 106HB of the Evidence Act 1906 (WA) at the trial of the appellant in January 2009.

4 The State case in support of the counts relating to complainants 1 and 3 depended entirely on the evidence of those complainants. However, there was direct oral evidence from a witness, RB, to corroborate the evidence of complainant 2 that she was sexually assaulted by the appellant on or about 26 October 2007. RB, the daughter of the appellant's then partner, said she had witnessed the appellant sexually assault complainant 2 on the night in question. She also gave evidence of discussions she had shortly thereafter with each of the complainants about their complaints concerning the appellant's conduct. RB accepted in cross-examination that she had made a prior inconsistent statement to police, had never really liked the appellant and wanted him out of the house. Part of the defence case was that the complainants and RB had concocted the allegations against the appellant.

5 The appellant gave evidence. The allegations made by the complainants were put to the appellant in the course of his examination-in-chief. He gave evidence that the allegations were untrue and had not happened (ts 154, 155, 156, 159, 160). Although the appellant was cross-examined, it was not put to him that he had committed the sexual acts the subject of the charges or that his evidence denying the charges was false.

6 The prosecutor's address to the jury was objective and largely non-adversarial. The extent of the prosecutor's 'advocacy' on behalf of the State was limited to explaining why the jury should reject any possibility that the complainants and RB had together concocted the allegations. The prosecutor did not urge the jury to accept the evidence of the complainants as truthful and reliable or reject the evidence of the appellant but rather identified the task that was before them and what they needed to be satisfied of in order to convict the appellant.

7 It was contended for the appellant that the need to give the directions referred to in ground 1 stemmed from the failure of the prosecutor to comply with the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67 HL) which was said to comprise two separate limbs, one relating to procedural fairness and the other to evidentiary considerations.

8 The rule in Browne v Dunn needs to be applied with some care when considering the conduct of the defence at a criminal trial: MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436 [18]. However, we are here concerned with the conduct of the prosecution to which the ordinary rules apply.

9 There is authority for the appellant's proposition that the rule in Browne v Dunn has two aspects. Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 18, after referring to the rules discussed by Newton J in Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846, said:

As Newton J observed ... there are two aspects to be considered. Firstly, there is a rule of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses and a fair trial between the parties; and, secondly, there is a rule relating to the weight or cogency of the evidence. His Honour went on to say ... that the second rule in or aspect of Browne v Dunn meant no more than that if a witness is not cross-examined in relation to a particular matter upon which he has given evidence, then that circumstance would often be a very good reason for accepting the evidence of that witness upon that matter; there is, however, no requirement in law that the tribunal of fact must accept that evidence ... (18).

10 Samuels JA in Ellis v Wallsend District Hospital [1989] 17 NSWLR 553, 587 also accepted that the rule in Browne v Dunn had the two aspects described by Newton J.

11 However, the two aspects of the rule are related. The first aspect relates to the requirement for notice of the fact of, and basis for, a challenge to the evidence adduced or to be adduced by the opposing party. The second aspect relates to the consequence of giving notice (it enables the opposing party or a witness to give responsive evidence) and of failing to give notice.

12 In any trial, there are facts in issue (corresponding with the elements of the offence in a criminal trial), facts relevant to the facts in issue and the evidence relied on to prove those facts. In its most well-known manifestation, the first aspect of the rule requires each party to put their adversary on notice of the matters on which the party intends to adduce evidence to prove or negative the facts in issue or the facts relevant to the facts in issue. Ordinarily, the final (but not only) opportunity to fulfil this obligation is in cross-examination of the witnesses called by the other party.

13 The first aspect of the rule also requires a party to put the other side and any relevant witness on notice of a challenge to the correctness of evidence given by a witness in a manner other than by way of adducing contrary evidence. That can be by way of a challenge to the credibility (honesty and reliability) of the witness. Credibility challenges often arise from inconsistent statements, a failure to complain, the possibility of mistake or a claim of recent invention. Notice of the fact and basis for the challenge gives the witness an opportunity to give responsive evidence. A challenge in cross-examination is often the first and only notification that the creditability of a witness is in issue or that a fact is actually in contest between the parties, particularly in the case of facts relevant to a fact in issue.

14 On the issue of general credibility, Lord Herschell said in Browne v Dunn:

[T]here are cases in which ... notice [of an intention to impeach the credibility of a witness's testimony] ... is so manifest, that it is not necessary to waste time in putting questions to him upon it (71).

15 Similarly, in Thomas v Van Den Yssel (1976) 14 SASR 205, 207, Bray CJ said:

[T]hese principles [in Browne v Dunn] cannot ... be applied without qualification to a challenge to the witness's credit generally ... [I]n many ... cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth ... I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberating giving false evidence unless the witness is asked some such question as, 'I put it to you that your evidence is false', or 'I suggest that that is a deliberate lie' or the like.

16 As noted in Lazarevic v The State of Western Australia [2007] WASCA 156 [20], it is unnecessary in those circumstances to put such questions because they permit of only one response, a bare denial.

17 If the rule in Browne v Dunn is complied with the parties will have adduced all relevant evidence necessary for the determination of the facts in issue in the litigation. The consequences of a failure to comply with the rule in Browne v Dunn vary according to the nature and extent of the breach. The types of discretionary responses are conveniently grouped in Cross on Evidence (8th Aust ed, 2010) [17460]. They include the following. First, if the witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. Secondly, if a witness has not been cross-examined on a particular matter, that may be a good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence. Thirdly, the trial judge may, on application, permit counsel for the party who called the witness in respect of whom the rule was broken to call evidence in rebuttal. Fourthly, if a jury is asked by counsel to disbelieve or make findings adverse to a witness on matters not put to the witness, the jury may be discharged or a curative direction given: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 225.

18 In this case, the State did not infringe the rule in Browne v Dunn. The appellant was clearly on notice of all material matters in contest at trial. So much is evident in the appellant's examination-in-chief. Further, the prosecutor did not in his address to the jury advocate or urge the jury to disbelieve or reject the evidence of the appellant. He left it to the jury to perform the task entrusted to them which was to determine, on the whole of the evidence, whether they were satisfied of the truth and reliability of the complainant's evidence. Thus, there was nothing in the prosecutor's address that went beyond what had been put to the appellant in cross-examination. Moreover, even if the prosecutor's address could be construed as advocating acceptance of the evidence of the complainants and thus, by implication, rejection of the evidence of the appellant, that did not involve a breach of the rule in Browne v Dunn. The prosecutor was under no obligation to put to the appellant that he had committed the offences or that his evidence was false because he was on notice of those matters from the conduct of the State case and because his response could be nothing more than the bare denial which he had already given. There being no breach of the rule in Browne v Dunn, there was no arguable basis for the directions referred to in ground 1. I would refuse leave on this ground.

19 This ground has no reasonable prospect of succeeding. When regard is had to the directions as a whole, the jury would have been left in no doubt that they could not convict the appellant unless they were satisfied beyond reasonable doubt of the truthfulness and accuracy of the complainants' evidence and that when considering that question, they were required to have regard to all the evidence, including that of the appellant.

20 The trial judge gave a Liberato direction (Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507) which included the following:

It may be that you believe all of [the appellant's] evidence, and in that event you would acquit him. But even if you were not to believe his evidence, you cannot find an issue against him, contrary or against his evidence, if his evidence has given rise to a reasonable doubt on that issue. So it's very important for you to remember the question for you to consider is whether on all of the evidence that has been presented in the trial the State has proved the charge against [the appellant] beyond a reasonable doubt; and so if [the appellant's] evidence has given rise to a reasonable doubt, then of course you wouldn't be so satisfied.

Further, even if you were not to accept [the appellant's] evidence and to reject that evidence, it wouldn't automatically follow that you would convict him of the charge. That's because an accused person doesn't have to prove anything. The law is that you only deliver a guilty verdict if on all of the evidence the State has proved the charge beyond a reasonable doubt (ts 195).

21 After the Liberato direction the trial judge gave suitably adapted Longman warnings (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79) for each complainant (ts 205, complainant 1; ts 215, complainant 2; and ts 225 - 226, complainant 3). In the case of each complainant, the trial judge directed the jury that they had to be satisfied beyond reasonable doubt of the truthfulness and accuracy of their evidence before they could convict the appellant and because of the crucial nature of their evidence it had to be scrutinised carefully.

22 The trial judge then turned her attention to the prosecution case by referring to the relevant evidence of each complainant on each count and, in the course of that consideration, summarised the defence case relating to the relevant complaint (see ts 196, 212, 214, 220, 224, 229 - 230, 242 - 243). The trial judge also summarised the appellant's evidence (ts 231 - 233). The way the trial judge dealt with the evidence reinforced her earlier direction that the verdicts were to be determined on the whole of the evidence. I would refuse leave to appeal on this ground.

23 A trial judge has a duty to put the cases of the prosecution and the defence to the jury in a fair and balanced way. The fact that not all matters relating to the defence case were dealt with together does not result in any lack of fairness or balance: McKinnon v The State of Western Australia [2010] WASCA 51. The trial judge's summing up of the defence case was comprehensive, fair and balanced. I would refuse leave on this ground.

24 There being no arguable error on any substantive ground, ground 4 must also fail.

25 As the appeal was commenced well out of time, the proper course is to dismiss the application for an extension of time and the appeal.