R v Baran [2007] VSCA 66

"They weren't lying, were they? It's hard to imagine how they would be lying."

Later, in discussion with the trial judge in the absence of the jury, both counsel and his Honour expressed the opinion that it was not possible for two 12 year olds and an adult to lie down beside each other on the bent seat of a van. Counsel said to the trial judge:

"I'd seek some kind of direction from your Honour either in the form of specific directions for jury that they can't - it's open to them that he was lying next to them or beside them because that's an issue; or I call her back and clarify that."

In declining to require the recall of the witness, the trial judge said that counsel could make what ever comment she wished to the jury on the subject.

17 In my opinion the initial comment by the trial judge in the course of defence counsel's cross-examination was not designed to stop the cross-examination. In fact it did not do so, for counsel proceeded to question the complainant further as to whether she had told the police that she woke up to find the applicant lying next to her. Counsel did not ask the complainant whether it was possible for three people to lie beside each other on a van seat, but I do not think she was prevented from doing so by the trial judge. As the trial judge said, defence counsel herself could point out to the jury the difficulties attending the complainant's testimony, and the defence had the advantage that the jury had heard the trial judge's critical comment.

18 The next ground of the application is that the trial judge "allowed the prosecutor to cross-examine because of a claimed failure of the defence to comply with Browne v Dunn".

19 At the conclusion of the applicant's evidence in chief, the prosecutor complained to the trial judge that the applicant had given evidence of facts which had not been put to the complainant by the defence counsel. At the conclusion of the evidence, counsel for the applicant submitted that in this case there was no reason to apply the rule that a party was obliged to give appropriate notice to the other party's witness of an imputation that the former intends to make against the latter about the witness's credit. [1] The trial judge ruled that the issue of the application of the rule in Browne v Dunn "is properly raised and can be put to the jury by the prosecutor and I will give a standard direction in that connection."

20 Counsels' addresses have not been transcribed. In his charge to the jury the trial judge gave a Browne v Dunn direction. He identified three areas of inconsistency between the evidence of the complainant and that of the applicant. They were:

• Whether the complainant telephoned the applicant and asked to be collected from the roller blading centre or whether the applicant telephoned the complainant and offered to pick her up.

• Whether the applicant or the complainant suggested that they embark on a ride after returning to the applicant's house.

• Whether in the van Murat said that the complainant was ill.

21 Counsel for the applicant submitted to the trial judge that these inconsistencies were neither significant nor material[2] and, in any event, the applicant in his record of interview foreshadowed the evidence he gave on these matters. In my view the inconsistencies were significant and material, for they related to the question whether the applicant arranged an opportunity to administer a drug to the complainant. Further, I do not consider that the applicant's obligation to put the complainant on notice in cross-examination of the challenges to her account he would make in his evidence was absolved by the contents of his record of interview.

22 The third ground of the application complained of the trial judge's Browne v Dunn directions. In the course of those directions his Honour, speaking of defence counsel's failure to put matters to the complainant of which the applicant later gave evidence, said:

"You would be entitled to think that the real reason it was not put was that it had been invented after the first witness gave evidence. In such a case, you are entitled to use the failure to put the allegation to other witnesses as a reason for doubting its truth."

His Honour went on to say that not only could the jury use the failure to put a matter to the complainant as a reason to doubt the truth of the applicant's evidence as to that matter, they could also take the failure into account "in relation to your assessment of his general credibility as a witness."

23 In fact it was clear that the jury was not entitled to conclude that recent invention was the real reason for the failure to put to the complainant the matters earlier identified by the trial judge as inconsistent with the complainant's evidence.

24 The applicant was interviewed by the police on 21 October 2004, over 15 months before the commencement of the trial. A record of that interview was tendered during the trial. In the record of interview the applicant gave the version the trial judge identified as a recent invention. When asked how he came to be with the complainant, the applicant said that the complainant "called me to pick her up." He said that as they were driving home from McDonald's "Murat told me she's not really well." The applicant told the police that after returning to the applicant's house he was going to take her home but "she wanted a little drive."

25 The trial judge might have said that it was open to the jury to find that the applicant gave one version of the events of the night to the police and another version to his counsel. Instead, and, I think, more damagingly, his Honour said that the jury could conclude that the applicant had invented aspects of his evidence after the trial began.[3]

26 Unfortunately, neither counsel for the applicant nor the prosecutor took any exception to the trial judge's invitation to the jury to infer that the applicant had invented evidence after the complainant gave evidence. Despite the general rule that a criticism of the charge to the jury, which is capable of being cured at trial, must be taken at the trial and, if it is not, a new trial will not be ordered,[4] the Court's jurisdiction to order a new trial depends upon the demands of justice.[5] In my view the trial judge's invitation to the jury to draw an inference that may well have led the jury to disbelieve the applicant, but was in fact precluded by the evidence, constituted a substantial miscarriage of justice, which is not to be disregarded because counsel failed to take exception to it.

27 The fourth and fifth grounds of the application are that the trial judge erred in failing to direct the jury as to causation and properly direct the jury as to the use that they could make of circumstantial evidence.

28 The trial judge gave a comprehensive and orthodox direction on the drawing of inferences. No exception was taken to it at the trial, and in my view it was adequate to meet this case. As to causation, the substantial issue in the case was whether the applicant gave the complainant a tablet of alprazolam. There was also the question whether the complainant's symptoms were the result of imbibing the drink into which Jake was said to have dropped the tablet. The trial judge told the jury that the Crown was required to establish, inter alia, that the applicant administered alprazolam to the complainant and that the substance was capable of interfering substantially with the bodily functions of the complainant. In the course of instructing the jury as to the alternative charge of recklessly causing injury, on which the jury returned a verdict of guilty, the trial judge said that the Crown must prove that "an act of the accused caused injury to the victim." In the circumstances of this case, I consider that direction was sufficient.

29 In oral submissions counsel for the applicant developed the argument that the trial judge failed to spell out to the jury the hypothesis that the complainant had ingested the drink spiked by Jake and instruct them that unless that hypothesis could be excluded, the Crown had not proved its case.

30 In Shepherd v R[6] Dawson J, speaking of the direction that, where the jury relied on circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances, said:

"Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it would be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given."

31 In the present case counsel at trial did not ask for such a direction, and in my view, in the circumstances of this case, the trial judge did not err in failing to give it. The competing hypotheses explaining the symptoms suffered by the complainant were clearly before the jury. The jury were told that the Crown case depended upon proof that it was an act of the applicant that caused injury to the complainant. In my view, no more was required.

32 The sixth ground of the application for leave to appeal against conviction is that the trial judge "failed to direct the jury on evidence of good character of the applicant."

33 The evidence relied upon was that of a person who had known the applicant for some ten or eleven years and who said only that she "had never heard of anybody speak ill of [the applicant]" and had not ever heard of the applicant "mistreating any children" or "inappropriately dispensing medication to children."

34 The trial judge said to the jury:

"Evidence of good character raises a presumption that the accused is incapable of committing the crime or crimes of which he is charged. Of course, that presumption lasts only up to the point at which you

find that despite the accused's past good character the Crown has proved beyond reasonable doubt that the accused did commit the crime or crimes of which he is charged. In addition to that evidence being relevant as to whether or not the accused committed the crime, the evidence is also a factor for you to take into account in relation to the credibility, the honesty, the reliability of the accused as a witness and that, of course, is relevant to the statement he gave to the police in the record of interview and the evidence he has given in court."

35 In my opinion the direction was adequate to deal with the evidence, which hardly placed the applicant's good character at the forefront of the trial. The direction dealt with the principal consequences of proof of the accused's good character: it bears upon the likelihood of the accused being innocent and telling the truth.

36 The final ground was that the verdict was unsafe and unsatisfactory because the Crown did not point to any motive for the offence.

37 It was not an element of any of the offences that the applicant had a motive to commit them, and it was not incumbent upon the Crown to prove motive. The absence of motive was a matter upon which the defence could rely in contending that the prosecution had not proved its case beyond reasonable doubt, but in my opinion it did not compel that result.

38 For the foregoing reasons I am of the opinion that leave to appeal against conviction should be granted, the appeal heard instanter and allowed, the convictions below set aside and that there should be a new trial.

39 I agree for the reasons advanced by Buchanan JA that this application should be granted, the appeal allowed and a re-trial ordered.

40 For the reasons given by Buchanan JA, I agree that the application for leave to appeal against conviction should be granted, the appeal be allowed and a new trial be ordered.

[1] [1893] 6 R 67.

[2] See R v Howse [2000] VSCA 159; (2000) 2 VR 141 at 148 per Winneke P.

[3] It appears that the trial judge accepted the submission of the prosecutor that "the accused was making these matters up as he was going along."

[4] R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643 at 662.

[5] Kalin v Greater Union Organization Pty Ltd [1991] HCA 23; (1991) 100 ALR 746 at 750 per Mason CJ, Deane, Toohey and McHugh JJ.

[6] [1990] HCA 56; (1990) 170 CLR 573 at 578.