R v Brown [2002] VSCA 207

R v Brown [2002] VSCA 207 - VSCA 2002 case summary — Zoe

[10]

Before considering the parties' respective submissions, it is necessary to set out briefly the circumstances relating to the offending. On 20 October 1999 the complainant was, as I have mentioned earlier, 18 years of age and was a student attending a girls' secondary college to which she travelled from her home by train. On the afternoon of that day, she was walking home from the local railway station. Her route home was such that she walked along a bicycle path which led to the street where she resided. As the complainant walked along the path and was close to home, a man rode past her on a bicycle on her left side. She said that she lost sight of him as he rode into the street where she lived. She then heard footsteps behind her and felt an arm from behind being placed around her neck. She was pushed to the ground and was dazed when she hit her head on the concrete path. When she regained her senses she found herself positioned with her upper body on the path and her lower body on the gravel, which was at the side of the path. The applicant was on top of her pushing her down; he was trying to stop her kicking and screaming as she attempted to get away. She said that he used force to place his hand inside her underpants and put his fingers on the outer lips of her vagina. The complainant was menstruating at the time and was wearing a sanitary pad. While she was yelling and screaming, the applicant said to her, "What's going on? What's wrong?", after which he instructed her to "move". The complainant was unable to do so because she felt too weak; she said that her legs were like jelly and she could not stand up. Her very loud and hysterical screams were heard by Mrs Bianco who lived nearby and who went to the complainant's assistance. By that time, however, the applicant had ridden off on his bicycle but was observed by Mrs Bianco to remain nearby, and then to ride back towards them and to follow them at a distance when Mrs Bianco helped the complainant home. When the complainant got there, she bordered on the hysterical: she was shaking, screaming and crying. Her sister, and her sister's friend Kylie, sought to comfort her. The complainant collapsed on the floor and her sister rang the police. She then heard someone say that the applicant was coming back, so she hid inside the house but the others went outside. The applicant told them that the complainant had stolen his mobile telephone. The complainant's sister checked in her sister's bag, but found nothing of relevance and told him so. Soon after this, the complainant came outside and when she saw the applicant she yelled abuse at him. He sat on his bicycle, shaking his head, and the complainant went back inside the house.

[45]

As I understand it, there is no formal or accepted protocol in place in this Court for placing before it such limited material as may be available that bears on the question whether the accused's trial counsel has imprudently conducted the trial. Often, all that is put forward is an assertion from the Bar table as to how trial counsel had erred in the conduct of the trial and it is not always the case that the former counsel produces a response or is even given an opportunity to do so. In my view, ordinarily, where it is alleged on appeal that the accused's then trial counsel had imprudently conducted the trial, fairness dictates that this allegation be made known to counsel and that he or she be given the opportunity to respond and that any such response be communicated to the Court. Such a course was effectively approved by this Court in MNG[6]. In that case Phillips, J.A., with whom the other members of the Court agreed, considered[7] that, where such an allegation is made against the former practitioner, it is appropriate that it be put "squarely" to him or her. In that case it seems that it was the applicant's legal advisers who made the allegation known to the former practitioners and affidavits in relation to such communication were filed showing that they were asked in writing about their instructions concerning the calling of evidence. His Honour noted that the applicant's former solicitor made a limited response but that counsel did not respond, thus leaving the Court with no first hand explanation of the decision taken by him not to lead certain evidence at the time of the trial. In the result, as his Honour said, "We must do the best we can on the material that we do have." In R v. Portelli[8] (with whom Charles and Callaway JJ.A. agreed) his Honour noted[9] that counsel against whom the allegation was made at the appeal was notified by the applicant of what was being alleged against him and considered that such a course was "entirely appropriate". Phillips, J.A. was critical[10], however, that the relevant facts were sought to be conveyed to the Court from the Bar table. His Honour considered that where the conduct of previous trial counsel is impugned, notice of the relevant ground of appeal should be given in writing to counsel as soon as the ground is taken and that he or she should be provided with supporting material and offered the opportunity to respond.

[54]

"Decisions [upon the best course to follow] depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions. Decisions such as those, even if an appeal court thought that counsel had made an unwise or imprudent decision, would almost never found a successful appeal based on miscarriage of justice. The Crown argued that the decision now being considered was of the same type as those decisions but we do not agree. The course to be taken in the conduct of the defence of an accused person is left to the judgment of the defence lawyers. A trial will not normally be regarded as having miscarried if the accused has been afforded a proper opportunity for choice and a choice has been made by his legal representatives on his behalf. This is illustrated by the statement by Barwick CJ in Ratten v R [1974] HCA 35; (1974) 131 CLR 510, at p.517; [1974] HCA 35; 4 ALR 93, at p.99 that: It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Amongst the various defects or omissions which may lead a trial to become unfair and to amount to a miscarriage of justice are circumstances which may be treated as vitiating the volition or choice by an accused or his lawyers to follow or refrain from following some course at the trial. Some factors capable of amounting to vitiating factors, which are mentioned in the cases, are fraud, mistake, surprise, malpractice and misfortune, and, with particular reference to defence lawyers, inexperience, remissness, defect of judgment or neglect of duty_: R v Hadland_ [1969] VicRp 93; [1969] VR 725, at p.728; Re Ratten [1974] VicRp 26; [1974] VR 201, at p.204 and R v Sarek [1982] VicRp 99; [1982] VR 971, at p.982."

[57]

It seems to me that the following facts point to the conclusion that it is more likely that the applicant's trial counsel did not cross-examine Kylie because he decided that such a course would be in the best interests of his client. First, counsel was very experienced in the conduct of criminal trials and it can be assumed, at least prima facie, that he was unlikely to have made the grossly negligent mistake contended for by Mr Danos. Next, it is apparent that when cross-examining Kylie he had available to him her statement to the police because he asked her some questions by reference to page 3 of it. It is most unlikely that, in those circumstances, he would have simply forgotten to cross-examine the witness on the material contained on page 2, particularly given that he had only a short time prior to that cross-examined the complainant by reference to that part of the document. Next, for reasons already mentioned, there was a real risk that such cross-examination would have been counterproductive. That he did not seek from the trial judge a ruling that there be no adverse comment made in relation to the fact that he did not relevantly cross-examine Kylie is, in my view, not conclusive on the issue now under consideration. As Mr Elston pointed out, it would have been apparent to counsel that his decision not to cross-examine the witness brought with it the risk of comment being made, something which is not uncommon in witness proceedings and, in a sense, is the "price" that is paid for the forensic decision not to cross-examine the witness on a particular issue where that would be expected to occur. In any event, to have raised the matter with the trial judge, as Mr Danos has suggested, would have meant conceding (at least before her Honour and the prosecutor) that Kylie erred in her statement as to her conversation with the complainant, and thus impliedly accepting the complainant's version of the events. In those circumstances, it is perhaps understandable that counsel may not have wished to raise the matter with the trial judge.

[68]

But it is difficult to accept that the error contended for had occurred. After the applicant was found guilty by the jury, her Honour adjourned the hearing of the plea in mitigation for almost five months (from 14 September 2000 to 12 February 2001) to enable pre-sentence reports to be obtained, including a psychiatric report from Dr Walton. In about mid-December 2000, the judge was informed, principally by way of a letter dated 14 December 2000 from Dr Walton, that he could not prepare the required report because the applicant refused to co-operate. Consequently, her Honour brought the hearing of the plea for mitigation forward to 2 February 2001. At that hearing the applicant's trial counsel put the plea in a context where detailed reports of the psychologist, Mr Bernard Healey, and the earlier reports of Dr Lester Walton, as well as a reference from the general manager of Barwon Prison, were tendered in evidence. In addition, evidence was received from the applicant's former parole officer. Importantly, there was no suggestion by the applicant's counsel to contradict or explain the contents of Dr. Walton's letter of 14 December 2000 or to seek an adjournment of the hearing of the plea in mitigation so that Dr Walton could examine the applicant for the purpose of preparing a report. Indeed, counsel said at the outset of his submissions that, "Unfortunately [the applicant] did not co-operate with the psychiatrist for reasons best known to himself ...". Significantly, as Mr Elston for the Crown submitted, prior to the conclusion of the hearing, the applicant's counsel was given leave to confer with the applicant. Before doing so, counsel said to her Honour, "... any matters he wants to put to Your Honour I will put then". As a result, there was a short adjournment to enable counsel to obtain instructions. After the adjournment, counsel further addressed the Court but did not seek to correct anything said in relation to the applicant's failure to co-operate for the purpose of obtaining a psychiatric assessment.

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Judgment (99 paragraphs)

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Cases Cited (2)