K C v The Queen [2011] VSCA 82

K C v The Queen [2011] VSCA 82 - VSCA 2011 case summary — Zoe

[29]

On 2 June 2006, [the complainant] said she stayed at your house and he replied to you, 'Which house was that?' And you said, 'The house in [X Street].' And he said, 'In June I wasn't living there.' Your question, 'Tell me where you were living?'

'[Y Street] with my girlfriend.' 'What is her name?' '[B].' And you say, '[B].' And he said, 'I used to stay with her probably four nights a week - three nights a week.' And question, 'And how do you know on the night of 1 June that - - -?' And he said, 'I don't know, I wasn't there, mate'?---That's correct.

That's what he said to you. Then you dealt with it again, and I'll just refresh your memory. And this is, Your Honour, Question 40 or thereabouts. 'OK', you asked him, 'OK, who lives at [X Street]?' And he said, 'My mother, [RK].' And you said, 'Anyone else?' 'My father [DK], my brother [JK], my sister [SK] and [AS].' Question, 'And how many bedrooms?' And then he said, 'And probably [TM].' And he said, 'Who's is he?' 'My sister's boyfriend who she is pregnant to.' 'All right, and how many bedrooms are at the house?' 'Three.' 'And whereabouts is your bedroom in the house?' 'Never have - never had one, I don't have one.' 'When you sleep there where do you sleep?' Answer, 'In the lounge room.' 'Is there a bedroom down the back of the house near the laundry?' 'Yes.' 'And who uses or who in June 2006 was sleeping there?' 'Don't know.' 'Have you slept in that room.' 'Yes.'

And then you take the topic up once more with him amongst other things, and this is at 259, 'And just going back to that first part which relates to around when [C] had the overdose and lost his leg when he was found that morning by [the complainant], do you remember where you were?' Answer: 'I was at my mother's because I got the phone call from me mother's and I heard me mum bawling on the phone and I've woken up and I've gone out.' 'So did you stay at your mum's that night?' 'Yes. I was at my mum's and my mother can verify that because I started bawling and I started punching holes in the wall.' 'And did you go down to the hospital that day to see him?' Answer: 'That day?' 'Yes?' 'Yeah, late. Probably I went - me girlfriend picked me up and I went down to the hospital at about lunchtime after lunch and then me girlfriend picked me up and took me back to her place.' Question: 'So where did you stay that night?' 'Me girlfriend's.' Question: 'Your girlfriend's?' Answer: 'Yeah, I believe so.' And they're the responses he gave to some of the questions that you asked?---That's correct, yes.

[45]

However a judge has a discretion in some cases to permit cross-examination by a party of their own witness. The witness, [RB], was allowed to be cross-examined by the prosecutor, ... in consequence of a ruling that I made that such witness could be treated as adverse or hostile. I made such ruling on the basis of both the demeanour of the witness when giving evidence and in particular the fact that her earlier statement made to police appeared to contrast sharply with the evidence which she gave in this trial.

These circumstances gave rise to an apprehension that [RB] was deliberately withholding material evidence by reason of an unwillingness to tell the truth at the instance of the party calling her. There are two things which ought to be said about this.

First the fact that [the prosecutor] exercised the right I gave him to cross-examine [RB] indicates that [he] does not put her forward as a witness of truth but as one from whom the truth, if you like, must be extracted, if at all, by cross-examination.

Second whilst you may bear in mind [the prosecutor's] attitude to [RB] and my allowing the cross-examination, in the long run it is for you, not [he] nor I, to determine the truthfulness and accuracy of a [witness'] account. You the jury are the judges of this as of all factual matters.

[The prosecutor] cross-examined [RB] about the contents of the prior written statement which she had made to police. In particular she was asked about her statements concerning where the accused was staying prior to and on the night when [the complainant's] father was taken to hospital. I will come to this evidence in detail in a moment.

[The prosecutor] says to you to the effect that [RB] has changed her story to protect the accused, being his partner and knowing how critical it is to effectively provide him with an alibi. [Counsel] for the accused says to the effect that [RB] was somewhat confused and did not pay sufficient attention to her answers when making her earlier statement and she has now had more time to think about it. [Defence counsel] says you should accept that she told the truth when giving evidence in this court.[3]

[47]

Members of the jury it was never put to [the complainant], under cross-examination, that the accused was never at the locations when she alleged the offences were committed. That is, it was only put to her that the sexual assaults never happened. By her evidence, [the complainant] was of course necessarily, saying that the accused was there and that he committed the sexual acts alleged.

These comments are particularly relevant in the case of Counts 1 and 2 on 2 June, when the accused said in answer to a question from police, that he stayed with his girlfriend that night, and Counts 4 and 5, the allegations in the car where the defence has sought to rely upon evidence of [MR] and [JB]; that's the mother of [RB], to the effect that he could not have been there that night.

It was also never put to [DR], the brother of [the complainant], that he never saw the accused at [Z Street] on the night the accused is alleged to have taken [the complainant] for a ride in the car. Counsel for the accused under cross-examination, did not therefore give [the complainant] the opportunity to respond to the assertion that the accused was never there. That is, not with her on any of the occasions or any particular occasion when sexual acts are alleged, so that he could not have committed any of the alleged acts.

I should tell you that there is a rule of conduct which requires counsel who propose to lead evidence of a material fact or rely upon a particular factual circumstance, to put that fact in cross-examination, to any witness who might be expected to be able to confirm or deny the evidence, in order to give the witness the opportunity to confirm it or deny it.

It is an important rule because it exists in order to enable you better to compare the evidence of one witness with that of another. It may be that if the allegation had been put in cross-examination, the witness would have shown by their words or demeanour, that the witness agreed with it. On the other hand it may be that the witness would have made a devastatingly effective denial of it. The failure to cross-examine about the matter deprives you of the opportunity of seeing what reaction the witness would have had to it.

Failure to comply with the rule may occur for a number of reasons; some innocent and some sinister. Sometimes the failure occurs by mistake. Counsel simply forget to ask the right questions or has not perhaps understood their instructions from their client. Whether this explanation exists of course, probably depends on the seriousness or significance of the allegation.

Sometimes it would be merely a waste of time to cross-examine about the allegation because it is apparent from the rest of her evidence that she is denying it. Sometimes it may be that the witness's own account is so incredible that the most effective cross-examination would be to make none at all.

Sometimes on the other hand, it is plain that if the allegation were true, fairness dictates that it should have been put to [the complainant] or [her brother]. In that case you might well wonder why it was not put and you would be entitled to think that the real reason it was not put is that it has been invented after they gave evidence. In such a case you are entitled to use the failure to put the allegation to the complainant or [her brother], as a reason for doubting its truth.

Of course a failure to put the allegation cannot of itself, disprove the allegation, nor can it have the effect of proving any element of the crime or crimes which still require to be proved beyond reasonable doubt. The only effect it can have is that of enabling you to form a view of the evidence which has been given, enabling you more readily to accept evidence because the contrary assertion was not put to the witness, or enabling you to reject the assertion because it was not put to a witness who could have denied it. (Emphasis added).

[53]

... I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy or credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

[61]

It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent's witness the matters in respect of which, or by reason of which, it is intended to contradict the witness' evidence. (The rule is discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16.) The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious.

(After quoting from Browne v Dunn his Honour continued)

It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created.

Browne v Dunn was a civil case. There are some obvious difficulties concerning the operation of the rule in criminal trials. The notion of fairness, whilst it has relevance to criminal as well as to civil proceedings, may have a somewhat different practical content in a criminal trial. ... It is quite common for an accused person at a criminal trial, whether represented or unrepresented, and whether in evidence or an unsworn statement, to come out with a version of the facts that has not been put to the Crown witnesses. This might well provide an appropriate subject for comment, but, for reasons that will be expanded below, there may be need for some care in the formulation of the appropriate comment.

...

(His Honour referred to what was said by Lord Lane CJ in R v Fenlon (1980) 71 Cr App R 307 as to how a witness should be cross-examined so as to satisfy the rule, and who said that 'It need not be done in minute detail, but it is the duty of counsel to make it plain to the witness ... that his evidence is not accepted and in what respects it is not accepted'.)

However, whilst the rule does apply in this State in criminal as well as civil proceedings, its practical content needs to be related to the circumstances of the particular case, and one important circumstances may be that what is involved is a criminal trial.

...

The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. In a judgment of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, his Honour said (at 236-237):

'This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness's evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. ...'

...

[63]

The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.

One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination.

...

Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

...

The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.

[69]

The rule in Browne v Dunn is a 'rule of law and practice', sometimes described as a 'rule of professional practice'.[27] In Rees v Bailey Aluminium Products Pty Ltd this Court recently said:

The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. The rule rests upon notions of fairness and is designed to give the witness and the party calling that witness an opportunity to meet that challenge. The rule facilitates the tribunal's assessment of the reliability and accuracy of the witness. Consequently if matters in controversy are not 'put' to the witness in cross examination the tribunal's capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.[28]

The rule also applies to a criminal trial. The rule, resting upon notions of fairness, is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal's assessment of the reliability and accuracy of the witness. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness[29] and diminishes the tribunal's capacity to assess the merits of the issue.[30]

It is not always clear how far counsel must go in putting their case to avoid complaint that they have not met the minimum obligations arising under the rule. The extent of the obligation will be informed by the nature of the case to be presented by the cross-examiner. If it involves no more than a denial of the evidence of the witness, the 'puttage' may be of relatively short compass. Plainly the extent of the obligation will differ where a positive case is to be subsequently advanced. If the 'essential elements of the eventual case' are not put to the witness who may caste doubt on them, a fair trial may be jeopardised and adverse comment expected. But it will often be a matter of impression and interpretation as to whether what counsel has put sufficiently conveys the substance of the evidence subsequently to be given.[31] Bald 'puttage' will be sufficient only where it can be said that no unfairness arises from the absence of any further identification of the substance of the matters in controversy.

Where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features which may include the time, place and circumstances of the occurrence. As Hunt J stated in Allied Pastoral Holdings Pty Ltd v FCT,[32] the cross-examiner must not only disclose that **'**the evidence of the witness is to be challenged but also how it is to be challenged'.[33] The detail in which an event is described will often lend an air of verisimilitude to the allegation. Fairness dictates that the witness against whom the allegation is made must have an opportunity to respond to the detail which may give life and colour to the allegation. It affords the witness the opportunity to explain or qualify their own evidence and the evidence upon which the challenge is to be based.[34] A witness, once appraised of the essential features of the allegation, may be more readily able to accept or reject it. The detail may enable the witness to recall that which may otherwise not be remembered. By resort to that very detail the witness may be able to cogently reject the allegation.[35] It may enable the witness to explain why the event could not have occurred in the way alleged. By identifying the features of the occurrence, the party calling the witness may appreciate that corroborative evidence is available to rebut the attack. None of this is to place an unduly onerous burden upon cross-examining counsel.

[71]

The failure to cross-examine in accordance with the rule does not mean that the evidence led in contradiction of the evidence that should have been challenged cannot be considered.[37] It is a matter of weight for the court to take into account.[38]

Ordinarily, a failure to put to the witness the substance of the evidence which is called in contradiction of the witness or to otherwise impugn the witness, will bear upon the weight to be attached to such evidence or the inferences that flow therefrom.[39] Where the tribunal of fact is a jury and the trial judge has concluded that there has been non compliance with the rule, the jury may be told that the failure bears upon the weight they attach to the allegation of fact that was not pursued with the relevant witness or the argument which rests upon that fact.[40] The direction given by Kaye AJA in R v Ferguson; R v Sadler; R v Cox,[41] quoted with apparent approval by this Court, well illustrates the point:

But if you consider that the matter was not fairly put in a way which would have given the Crown an opportunity to respond, either by calling witnesses or re-examining witnesses, then you can take that into account of course in weighing the argument made to you in final address by counsel for both accused. Because in that situation if you think the matter was not fairly raised with Crown witnesses in a way that put the Crown on notice, you would have an argument which the Crown has not had the opportunity to respond to. Now, that just goes to a matter of weight of the argument.[42]

It was a matter for the trial judge, whether he thought it necessary to draw to the jury's attention that the complainant had not been given the opportunity to respond to the evidence to be led from the applicant or the argument which counsel intended to advance in closing address. He was entitled to tell the jury in strong terms that the failure to put these matters to the complainant could be taken into account by the jury in assessing the weight to be given to those parts of the applicant's evidence that had not been explored with the complainant and the argument that rested upon that evidence.[43]

Where the breach is said to affect the credibility of a party or witness

In this case the trial judge did not, in directing the jury, confine himself to the weight that might be attached to the evidence or argument in support of the allegation. He instructed the jury that the failure to put such matters enabled the jury to reject the applicant's assertions and more readily accept the complainant's evidence on what were important factual issues.

Dealing with the circumstances in which breach of the rule may lead to the drawing of inferences adverse to the party in breach, Gleeson CJ in R v Birks[44] said:

It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution.[45]

In R v Manunta King CJ expressed concern about the prominence given to the Browne v Dunn issue in the trial judge's summing up. He said that:

It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.[46]

[73]

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.[48]

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[49] makes clear, the rule in Browne v Dunn does not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings[50] and, consequently, its application requires considerable care and circumspection.

In R v Foley[51] the Queensland Court of Appeal observed that:

There are of course ways and means of avoiding the necessity of presenting such issues to juries at the end of the trial. Sometimes it is possible to have a witness or witnesses recalled for cross-examination. ... Sometimes the reason for the omission is itself explored at trial, and if it can be seen that the omission reflects only on counsel (or solicitor) and not the accused, then the only available comment would relate to the potential disadvantage to the witnesses or to the Crown's case from the omission, with an express statement that this was not the fault of the accused but rather of counsel.[52]

With respect, I entirely agree. In view of what has fallen from the High Court in MWJ, I suggest that any criminal trial judge who is faced with a breach of the rule in Browne v Dunn would be well advised to treat the above stated observations in R v Foley as his or her starting point, and indeed as the approach beyond which it will seldom be desirable to go.

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Cases Cited (12)