R v Coswello [2009] VSCA 300

trial - Whether resulting substantial miscarriage of justice to applicant - Application of proviso to s 568(1) of Crimes Act 1958 - Appeal allowed.

1 I agree with Williams AJA, for the reasons which her Honour has stated, that the application for leave to appeal against conviction should be granted, the appeal heard instanter and allowed, the conviction entered in the County Court set aside and the appellant re-tried.

2 The point of the requirement to put a proposition to a witness is to give the witness 'an opportunity of making any explanation which is open to him'.[1] To deny the witness that opportunity is unfair. Where a witness gives evidence of the occurrence of an event which is the central issue in a trial, it will not generally be unfair to refrain from putting to the witness that the event he or she has described did not take place. The earlier evidence is usually a sufficient explanation.

3 Under the Rule in Browne v Dunn,[2] it is the duty of counsel before impeaching the evidence of a witness to put to the witness in cross-examination the version of events for which counsel contends.[3] As Redlich JA stated in R v Thompson:[4]

The rule in Browne v Dunn is a rule of law and practice. In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or 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. That conduct must be put to the witness. The rule rests upon notions of fairness. It 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. Where matters in controversy are not 'put' to the witness in cross-examination, the tribunal's capacity to assess the credit of the

witness is likely to be impeded. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.[5]

4 The cases do not mark out clearly how far counsel must go in putting the accused's case to the witness.[6] Sometimes it will need to be extensive. But where the defence case consists only in a denial of the witness's allegations, without positive evidence or hypothesis of an alternative version of events, [7] the puttage may not need go far and, possibly, may not be necessary at all if defence counsel has made clear from the manner in which the defence case is conducted that the witness's evidence will be contested.[8]

5 In this case, the defence case was that the offences did not occur and, with few exceptions (which were the subject of specific puttage), there was no positive evidence or hypothesis of an alternative version of events. Defence counsel also made manifestly clear in the course of the defence opening and otherwise in the way in which he conducted the defence case that the complainant's evidence was disputed. In those circumstances, I do not consider that it was necessary for defence counsel to put to the complainant, more than the one time he did, that the alleged offences did not occur.[9]

6 It follows, in my view, that it was improper for the prosecutor to suggest to the jury that defence counsel had not done what was needed in order to put the defence case to the complainant, and that the judge erred by directing the jury that it was open to draw an adverse inference from the way in which the complainant's cross-examination had been conducted.

7 Even if defence counsel had not done enough to put the defence case to the complainant, it is plain that 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.[10] It requires considerable care and circumspection. Hence, as the Queensland Court of Appeal observed in R v Foley:[11]

While variations in circumstances of particular cases may call for different responses, it is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross- examiner has deliberately preserved a case from damage by preventing it from being tested, and that this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is, however, fraught with difficulty.

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 ... 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.[12]

8 It follows, I think, that if it were in order to give any sort of direction on the point in this case, the judge would not have been warranted in going any further than to outline the rule in Browne v Dunn and its purpose, and tell the jury that, under the rule, the complainant should have been challenged as to whether offences occurred so that he had an opportunity to deal with the challenge; that he had not been so challenged and thus had been denied the opportunity to respond to the challenge; and therefore that the court had been deprived of the opportunity of hearing his evidence in response.

9 Furthermore, as the Queensland Court of Appeal went on to explain in R v Foley:[13]

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 it may follow from the conduct of the trial that it is not fairly open to counsel to make a particular suggestion in address. 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.[14]

10 Hence, assuming it were otherwise appropriate to give the jury a Browne v Dunn direction, in my view such a direction should not have been given unless and until the judge had first alerted defence counsel to the failure sufficiently to put the defence case to the complainant, and the Crown either refused to recall the complainant for further cross-examination, or defence counsel refused the opportunity of further cross-examination[15] or, if the circumstances rendered the possibility of further cross-examination impracticable, unless the judge explained to the jury the sorts of factors which may have led to defence counsel's failure to do what was required.

11 In the result, I agree with Williams AJA that the judge's directions concerning the application of Browne v Dunn, and what the judge conceived to be the failure of defence counsel sufficiently to put the defence case to the complainant, created a real possibility of the jury reasoning by impermissible means to a conclusion of guilt, and thus resulted in a substantial miscarriage of justice.

12 For those reasons, I too would quash the conviction and order that a new trial

13 The applicant, John Coswello, seeks leave to appeal against his conviction in the County Court on 22 June 2009 of two counts of indecent assault and three counts of commission of acts of gross indecency on a 13 count presentment.

14 The applicant had pleaded not guilty to all counts on the presentment. After a nine day trial, a jury had also found him not guilty of four of the remaining offences and had reached directed verdicts of not guilty in relation to an additional four counts.

15 I am satisfied that the learned trial judge erred when directing the jury in relation to the cross-examination of the complainant and that there was a resulting substantial miscarriage of justice to the applicant. The application for leave to appeal should be granted and the appeal allowed. The applicant's convictions should be quashed and a retrial ordered.

16 The applicant was born on 10 January 1939. He was a Christian Brother who lived and worked at St Vincent de Paul's Boys Home in South Melbourne from mid-1968 to December 1979. He was almost 34 years old at the start of the period of the alleged offending between 1 January 1972 and 31 December 1976.

17 The complainant was a ward of the State who was born on 7 August 1961. He had been living at the orphanage from 7 November 1969 when he was eight years old. He was aged ten on 1 January 1972. He eventually left the orphanage on 15 December 1976 when he was 15 and was a 48 year old pensioner when he gave evidence in the trial.

18 The amended presentment listed the following counts:

Commission of act of gross indecency with a male person.

Unlawful and indecent assault of a male person under the age of 16 years.

An occasion other than that referred to in Count 1 - Commission of an act of gross indecency with a male person.

On an occasion other than that referred to in Count 2 - Unlawful and indecent assault of a male person under the age of 16 years.

On occasion other than those referred to in Counts 1 and 3 - Commission of an act of gross indecency with a male person.

On an occasion other than those referred to in Counts 1, 3 and 5 - Commission of an act of gross indecency with a male person.

On an occasion other than those referred to in Counts 2 and 4 unlawful and indecent assault of a male person under the age of 16 years.

On an occasion other than those referred to in Counts 1, 3, 5 and 6 - Commission of an act of gross indecency with a male person.

On an occasion other than those referred to in Counts 1, 3, 5, 6, and 8 - Commission of an act of gross indecency of a male person.

On an occasion other than those referred to in Counts 2, 4 and 7 - Unlawful and indecent assault of a male person under the age of 16 years.

On an occasion other than those referred to in Counts 1,3, 5, 6, 8 and 9 - Commission of an act of gross indecency of a male person.

On an occasion other than that referred to in Count 11 - Buggery.

19 It was clear from the beginning of the trial that the central issue was the accuracy of the complainant's account of the alleged offending behaviour.

20 In opening, defence counsel made the point a number of times, stating to the jury:

... what is in issue, what is vigorously contested, are the allegations made by [the complainant] that he was sexually interfered with by John Coswello. That's the central issue, the red-hot issue, the allegations. They are in issue.[16]

...

That issue, the central issue being the allegations [the complainant] makes, you have to decide on the evidence you hear. In terms of pretty well everything that the prosecutor has opened to you about the allegations and the claims as to what went on will come from the mouth of [the complainant], so perhaps that gives you some idea of what this case is all about. It's about the reliability and the credibility of the witness, [the complainant].[17]

... this case and your decision is solely to be made on the evidence you hear in this court, solely about the allegations, which are denied, that are made by [the complainant].[18]

...

The credit and reliability of [the complainant] are the central issue in this trial.[19]

... always understand that it's the prosecution who brings the charges against John Coswello, and before you can find Mr Coswello guilty, the prosecution have to prove to you beyond reasonable doubt his guilt on any one of those charges, and that is what is denied and you need to keep in the back of your mind that that is ultimately your test, are you [satisfied] on the evidence of [the complainant] beyond reasonable doubt, and that will be the issue for you in this trial.[20]

21 Defence counsel also indicated that he would make a specific challenge to the complainant's foreshadowed evidence that the applicant had assisted with scouting activities at the orphanage[21] and indicated that he would attack the complainant's reliability on the basis that he had given untruthful evidence in another court.[22]

22 Apart from brief evidence from the informant about a statement from the complainant's brother in law, the complainant was the only witness.

23 He said that in 1972 or 1973 the applicant had asked him to stay behind in a scout hall at the orphanage and had sat him on his lap whilst the applicant was masturbating (count 1 act of gross indecency). The applicant had then placed the complainant's hand on his penis and had had him masturbate the applicant to ejaculation (count 2 indecent assault).

24 A couple of months later in the scout hall, the complainant had knelt in front of the applicant and had masturbated him (count 3 act of gross indecency). The applicant had pulled the complainant's head to his groin area and had inserted his penis into the complainant's mouth where it had remained for between five and ten minutes (count 4 indecent assault). After the applicant had removed his penis from the complainant's mouth, the complainant had masturbated him and the applicant had masturbated himself (count 5 act of gross indecency).

25 The applicant had come to the complainant in his first floor dormitory at around the time of the applicant's thirteenth birthday in 1974. The complainant had followed him to the scout hall and had masturbated him. The applicant had inserted his finger into the complainant's anus and then had penetrated his anus with his penis, before engaging in further masturbation. (The trial judge subsequently ruled that this evidence was related to counts 9-12, rather than to counts 6-8 and 13, and that there was no evidence as to those counts.)

26 The complainant also said that the abuse had continued 'on and off' until a few months before he left the home.[23] He had complained to the Christian Brother in charge (a Brother Parton) about what the applicant had done to him.[24] He had been given 'the strap' for his efforts .[25] Brother Parton had died before the trial.

27 More generally, the complainant gave evidence as to the layout of the orphanage complex. In doing so, he identified his first floor dormitory as one having an adjacent shower block and being situated at the top of a set of stairs. He said that, when the applicant had come to take him from his dormitory to the scout hall at night, he had instructed him to wait to meet him at the bottom of the stairs. He also claimed that the stairs had creaked when the applicant was 'on his rounds' and that, when the complainant had heard them creaking, he had hidden under his own or another bed or in the toilet in the shower block.

28 Under cross-examination, it was put to the complainant that:

(a) he had lied under oath in a previous proceeding against him for incest by a step-parent;[26]

(b) he lied when he denied sexual activity with his step-daughter;[27]

(c) he had told a series of lies to explain facts in that proceeding;[28]

(d) he knew that a successful criminal prosecution against the applicant would help his civil claim for compensation in relation to the same alleged abuse;[29]

(e) the applicant had 'never helped out at scouts';[30]

(f) at around the time at which scouting activity was taking place and finishing, the applicant had been in his dormitory, supervising homework;[31]

(g) at no time did the applicant ever come up the creaky stairs to take the complainant back to the scout hall;[32] and

(h) when he told police that he had reported the abuse to Brother Parton, he knew that the Brother was dead.[33]

29 Significantly, the following exchange took place at the end of the complainant's cross-examination:

Question:

I suggest to you you never told Brother Parton that Brother Coswello was sexually interfering with you because Brother Coswello never sexually interfered with you?

Answer:

Yes, I did and yes, I did. Yes, I did.[34]

30 Some discussion between the judge and counsel interrupted the complainant's re-examination. During that discussion, counsel for the prosecution and the trial judge each acknowledged both the defence attack on the complainant's credibility based upon the assertion that he had made false allegations to assist in his civil proceeding[35] and that the applicant's credit was the 'central issue' in the case.[36] The prosecutor also referred to the challenge to the complainant's credit by reference to what was characterised as his deceitfulness during the criminal proceedings against him.[37]

31 The complainant was excused at the end of his re-examination.

32 Defence counsel made a no case submission in relation to a number of counts on the presentment. The learned judge upheld it in relation to counts 8 and 13 and then directed the jury to return verdicts of not guilty in relation to counts 6, 7, 8 and 13.

33 In discussion in the absence of the jury, the judge raised the issue as to whether it had been put to the complainant in cross-examination that he was lying in his account of the applicant's actions.[38] Defence counsel claimed to have made a general challenge by what he acknowledged was the 'double-barrelled' question at the end of the cross-examination set out above.[39] He argued that there had been no misunderstanding because the complainant had answered both propositions put. The judge indicated his view that the complainant had only responded emphatically to the proposition that he had reported the events to Brother Parton, describing such puttage as unfair to the witness.[40]

34 The judge asked why he should not tell the jury that the only time it had been put to the complainant under cross-examination that the applicant had not interfered with him was when he was asked the question containing two propositions. [41]

35 Defence counsel submitted, in effect, that the general challenge to the complainant's account was clear from the conduct of the defence case and argued that such a direction would not assist the jury and might prejudice the applicant by suggesting that 'somehow he wasn't really taking issue with the allegations'.[42] His Honour indicated his intention to address the issue in his charge.[43]

36 Counsel for the prosecution raised the conduct of the complainant's cross-examination in his final address to the jury. He noted the defence case that the complainant should not be believed on the basis of his past conduct and false testimony. Counsel commented that the complainant's cross-examination had 'focussed on the minute detail of his account of what happened to him at the hands of the accused'.

You might have thought that if none of this had happened that there'd be a full scale onslaught onto the detail and circumstances of the actual complaints, the things that he says happened to him like the anal penetration and the masturbation and the oral sex.

All that sort of thing would have been taken head on, but, no, what was concentrated on were these other details. Did the stairs creak, where was the dormitory, were there other kids around, all that sort of thing. They're factors that you should take into account when assessing the way this case has been conducted.

38 Counsel for the defence tackled the issue after stressing that the only evidence came from the complainant and arguing that the jury might think that he was concocting his account and lying as he had done previously in his own criminal trial.[44] Counsel referred to the fact that the recollection of events long past may well lack detail. He went on to explain his cross-examination on the basis that he was testing the consistency of the complainant's various accounts of those details, commenting that the jury might understand that it was not difficult to be consistent about a 'basic allegation'.[45] A witness's inconsistency in small matters would go to the issue of his credibility. Counsel reminded the jury that in real cases it was unlikely that there would be a general admission of lying and he said that a story needed to be examined in the context of what was said about the surrounding circumstances.[46]

39 The judge's charge first dealt with counts 1 and 2 together. After reading from the complainant's evidence-in-chief, his Honour then made the first of the impugned directions when he said:

That was the evidence of [the complainant] concerning Counts 1 and 2. In making your intellectual analysis of the evidence you may think it is of significance that the witness who was giving his evidence on oath was not challenged about this specific incident. You know that a cross-examiner in entitled to challenge a witness and put propositions to the witness. It was not put to [the complainant] by Mr Hallowes on behalf of Mr Coswello, that this incident did not occur, that it was a lie to say that Mr Coswello had masturbated in his presence, that it was a lie when he said that Mr Coswello had sat him on his lap and put his hand onto his penis.

What is said to have been the challenge to [the complainant's] evidence about this incident and these specific acts comes in the cross-examination in these terms, ... There were questions put in cross-examination to [the complainant] about his evidence that he had told Brother Parton about these things. He said that he did and it was put to him that he knew that when he spoke to the police that Brother Parton was no longer alive, that he was dead, and he agreed that he knew that Brother Parton was dead. It was then put to him this question: 'I suggest to you that you never told Brother Parton that Brother Coswello was sexually interfering with you because Brother Coswello never sexually interfered with you?' The witness, [the complainant], answered: 'Yes, I did' and, 'Yes I did, yes, I did.'

It is a matter for you as to how you analyse these things and as you have been told properly, this is an intellectual task for you to make your analysis of the evidence. You may think that that is a fairly faint challenge to the specific allegations that [the complainant] gave in his evidence. You may think that it is a challenge that is concealed somewhat by a question that is a double-barrelled question, it is a question that has got two propositions in it that the witness is answering and you may think he has answered only one of them, that is, that he did tell Brother Parton what Brother Coswello was doing to him.

There are two other aspects of the cross-examination in which there may be what is considered a challenge to [the complainant's] evidence. One is at 220, it is put to [the complainant]: 'I suggest to you Brother Coswello never helped out at Scouts?' Answer: 'Brother Coswello has been in the Scout room a few times.' 'I'm suggesting that he never helped out at Scouts?' Answer: 'Not like setting up sticks and doing tree branches and melts'... 'and stuff like that, no.' 'I suggest to you that at around the time Scouts is on and being finished, he is up in his dorm supervising the boys doing their homework up there?' Answer: 'Is that what you - you suggest that?' Question: 'You deny that?' Answer: 'I deny that.'[47]

40 The judge then went on to deal with counts 3, 4 and 5 in the same way, reading from the evidence-in-chief from two pages of the transcript. He then said to the jury:

Again, that is the evidence of [the complainant] with respects to Counts 3, 4 and 5. I say to you again, in making your intellectual analysis you may think it of significance that the witness was not challenged about this specific incident. It was not put to him that it did not occur, that it was a lie that Mr Coswello had him masturbate him or that it was a lie that he pushed his penis into his mouth. What was put to [the complainant] in cross-examination were the matters that I have just previously referred you to.[48]

41 The judge moved to the evidence-in-chief relating to counts 9 to 12. He continued:

As I have said to you before it is a matter for you to analyse the evidence of the specific acts and it is the position, and you may or may not think it is significant, that there was no allegation, no challenge put to [the complainant] that the allegations that he made of Brother Coswello masturbating him, putting Vaseline on his anus, inserting his finger or inserting his penis did not occur or were untruthful save for those matters to which I have referred you, which was the challenge in the question which was put in this fashion: 'I suggest to you that you never told Brother Parton that Brother Coswello was sexually interfering with you because Brother Coswello never sexually interfered with you.'[49]

42 When the jury took a break, defence counsel took exception to the judge's comments on what he characterised as a 'fundamental point'. He expressed the view that the jury might conclude from the judge's repeated comments that the applicant did not really take issue with the complainant's evidence and that his not guilty plea was 'half-hearted' and 'not a full plea'.[50] Counsel pointed out that the jury had not been given any direction as to how it was to attribute significance to the cross-examination. Counsel emphasised the resulting real danger of unfairness to the applicant.

43 In response to an invitation from the judge, defence counsel requested a redirection reminding the jury that issue had been taken generally with the allegation of sexual interference and also in relation to each of the incidents. Counsel acknowledged that the judge had mentioned the puttage about the applicant and the scouts, but submitted that his Honour had failed to mention the questioning to the effect that the applicant had never come up the stairs. After discussion about the significance of that passage, the judge indicated that he proposed to hear counsel further about the matter after the charge.[51]

45 The judge told the jury that the prosecution's 'primary submission' in closing was that it should accept the complainant's account of events. The 'primary submission' of the defence was that it should not do so and that it could not be satisfied beyond reasonable doubt of the truth of the allegations against the applicant. His Honour said nothing about the prosecution's comments about the complainant's cross-examination. He referred to the defence submission to the effect that there were inconsistencies between the complainant's accounts of events on other occasions and his evidence, but did not refer to counsel's explanation for his

cross-examination as to the details of the complainant's account.

46 The judge reminded the members of the jury of their obligation to consider the evidence, the prosecution's onus of proof and the presumption of innocence, before sending them out to consider their verdicts.

47 Defence counsel then asked for a redirection to the effect that the judge's earlier direction had been incorrect. He repeated many of his previous submissions about the danger to the applicant associated with the direction given. His request was refused.

Was there a breach of the rule in Browne v Dunn****?

48 The rule in Browne v Dunn[52] is a rule of 'professional practice'[53] 'designed to achieve procedural fairness'.[54] In Browne v Dunn, Lord Herschell LC expressed the rule as follows:

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... . 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 on 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 that 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 has not been accepted.[55]

49 The rule applies in a criminal case. It is based on general principles of fairness[56] and affects the weight or cogency of the evidence.[57] In R v Thompson[58] Redlich JA explained the rule in the context of a criminal case:

In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. ... The rule rests upon notions of fairness. It 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. (R v Demiri [2006] VSCA 64 at [36]) Where matters in controversy are not 'put' to the witness in cross-examination, the tribunal's capacity to assess the credit of the witness is likely to be impeded. (Johnson Matthey (Australia) Ltd v Dascorp Pty Ltd [2003] VSC 291; (2003) 9 VR 171 at [200]) Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.

... in a criminal trial the application of the rule and the circumstances in which an inference should be drawn from non-compliance must be seriously qualified. (MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at 333; R v Demiri [2006] VSCA 64 at [36]) Where a party seeks to invite the jury to draw such an inference, a careful direction should normally be given concerning the operation of the rule and the limited circumstances in which that inference may be drawn. (MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at 333) [59]

50 The applicant argues that the learned judge's directions about the complainant's cross-examination should not have been given. He contends that there had been sufficient challenge to the complainant's account of the specific acts, to the effect that they did not occur and that the complainant was lying when he said they did. He submits that it was not necessary for defence counsel to challenge each specific act in turn, putting to the complainant that it did not occur. I agree with each of these contentions.

51 The applicant relies upon Bellemore v Tasmania[60] in which the Tasmanian Court of Criminal Appeal considered an appeal from convictions for sexual offences against young males. A miscarriage of justice was argued to have resulted from the prosecutor's final submission to the jury that they could take into account, against the appellant, the fact that his counsel had not put to any of the complainants that the alleged events had never occurred. The trial judge had subsequently directed the jury that defence counsel was not necessarily obliged to put each specific allegation to each complainant, it being clear from the running of the case that the accused man denied all the allegations. The judge had warned the jury not to make adverse finding against the accused as a result of the suggested failure to challenge each specific allegation.

52 The court held that there had been no breach of the rule in Browne v Dunn. In the passage cited by the applicant in this case, Blow J (with whom Crawford J agreed) held that the prosecutor's submission was inappropriate. Citing Seymour v Australian Broadcasting Commission,[61] Blow J stated that there had been no need for defence counsel to put to the complainants that each act had not happened when the conduct of the trial had made it 'manifestly clear' that the defence case was that none of the alleged offending activity had occurred.[62] No injustice flowed because the judge had corrected the situation by her direction to the jury.[63]

53 The respondent submits that there was no error on the part of the learned trial judge in this case. Defence counsel had not taken the complainant implicitly, generally or specifically to the allegations to challenge them directly as untruths and had only mounted a limited attack on aspects of them. Otherwise, his attack had been on the complainant's credit. The context supported his Honour's view that the complainant's answer to the last cross-examination question was simply an emphatic response to the proposition that he did not tell Brother Parton about the abuse.

54 According to the respondent, the judge was concerned about the fairness to the complainant when the jury made an assessment of his evidence, absent that challenge. Relying upon the South Australian decision in Costi v R,[64] he argues that the trial judge was in the best position to consider whether defence counsel had sufficiently put the relevant matters to the complainant and, in the context of the conduct of the case, to assess whether such puttage was required at all.

55 I agree with the applicant's contention that the complainant had been given the opportunity to respond to the defence proposition that the specific sexual acts had not occurred. The defence opening had made it abundantly clear that his account was contested generally and that there would be specific challenges to his evidence about the applicant being associated with scouting activities at the orphanage as well as an attack on his credit based upon his untruthful evidence elsewhere. During cross-examination, the foreshadowed attacks occurred and it was also put to the complainant that the applicant had never come up the stairs to his dormitory to take him back to the scout hall where all offences allegedly took place. In addition, the complainant was challenged more generally in relation to his motivation for giving evidence, on the basis that it would assist his civil claim for compensation.

56 Finally, the complainant was given the opportunity by the last question in his cross-examination to respond to the general allegation that the applicant had never sexually interfered with him.

57 Both the prosecutor and the trial judge subsequently indicated, in discussion before the end of the complainant's re-examination, that they understood the centrality of the challenge to his credit.

58 The trial judge's view about compliance with the rule in Browne v Dunn may indeed be of the 'utmost importance' in circumstances such as those considered in Costi, where there was an issue as to the meaning of the answer to a particular question. That, however, was not this case and I am not persuaded that the rule was breached by the defence.

59 The impugned directions were inappropriate and should not have been given. Further, in my view, the comments to similar effect by counsel for the prosecution in his closing address were inappropriate themselves and called for a redirection along the lines of that given by the trial judge and approved by the court in Bellemore.[65]

60 The issue then arises as to whether there was a miscarriage of justice as a result of the inappropriate directions.

61 The authorities establish that caution is required when addressing a criminal jury where there is a breach of the rule in Browne v Dunn, even though a judge is entitled in certain circumstances to direct the jury 'in strong terms' about its effects.[66]

62 In R v Birks,[67] Gleeson CJ adopted the views expressed by King CJ in R v Manunta[68] (which are also applicable to the situation of a general attack on the credit of a complainant in the absence of any evidence called by the defence):

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. ... Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter may 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.[69]

63 Gleeson CJ made the following additional and relevant comment:

I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles ... relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning to assume that a barrister is simply some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth.[70]

64 The High Court in MJW v R[71] has also made it clear that a court applying the rule in Browne v Dunn must bear in mind the essential difference between the adversarial nature of a civil proceeding and the accusatory character of a criminal trial, given the prosecution's burden of proof.[72] The rule in Browne v Dunn like the rule in Jones v Dunkel[73] cannot be applied 'without serious qualification' to an accused in a criminal trial.[74] The court held that any genuine surprise resulting from the failure to put a relevant matter could, almost always and especially in civil cases, be remedied by a witness being offered or sought for further cross-examination.[75]

65 In this case, any perceived unfairness resulting from the form of the intended general puttage in the double-barrelled question could have been addressed by the judge requiring defence counsel to break the question down into its component parts at the time. Otherwise, after the judge had indicated his view that there was unfairness, it could have been dealt with by the complainant being made available for recall for any additional questioning thought warranted in the interests of fairness by the court.

66 The impugned directions left it up to the jury to make what they would of the reference to the 'significance' they might attach to the applicant's approach to the cross-examination.

67 I am not persuaded by the respondent's arguments that the directions were justified because his Honour did no more than comment on apparently unfair treatment of the complainant in the context of his summary of his evidence or because the direction simply outlined the defence argument as to how the matter was put to the witness and left the assessment of the evidence to the jury.

68 It is ultimately put by the respondent that the verdicts make it apparent that the directions did not have the asserted effect because the jury found the applicant guilty of only five of the nine offences left. I agree with the applicant's response that the evidence relating to Counts 9 to 12 might have been regarded as weak or unconvincing by the jury which was, of course, entitled to accept or reject the whole or any part of the witness's testimony, his credit being divisible in that sense.[76]

69 I am persuaded that the jury might well have construed the directions as inviting or directing them to engage in impermissible reasoning to the effect that the applicant's not guilty plea was half-hearted, that he did not strongly challenge the accuracy of the complainant's account of events or that the complainant's account should be considered somehow more credible because it had not been attacked in an appropriate way under cross-examination. The directions might have diminished the prosecution's onus of proof, notwithstanding that the judge properly directed the jury in relation to the onus and standard of proof on a number of occasions throughout the charge.

70 The use of the expression 'fairly faint challenge' and the word 'concealed' might also have been construed as suggestions by the judge that the applicant was not genuine in his challenge in a way which reflected poorly on him.

71 The impugned directions were given prominence by their repetition. There was a real risk, in my view, that the jury would engage in an impermissible process of reasoning to a conclusion of guilt in relation to one or more of the alleged offences as a consequence of an improper inference from the conduct of cross-examination by defence counsel. The directions were unfair to the applicant and gave rise to a miscarriage of justice.

72 In light of my conclusion that the jury might have been led into a false line of reasoning in relation to the important matter of the assessment of the complainant's evidence, I am not satisfied beyond reasonable doubt of the applicant's guilt of the offences in counts 1 to 5 (on the evidence admitted at the trial and without the benefit of seeing and hearing the complainant, a self-confessed perjurer,[77] give his evidence). I do not consider that a substantial miscarriage of justice has not actually occurred[78] and, accordingly, the proviso to s 568(1) of the Crimes Act 1958 does not apply.

73 The application for leave to appeal should be granted, the appeal should be allowed, the applicant's convictions should be quashed and a new trial be directed.

[1] Browne v Dunn (1893) 6 R 67, 70-1 (Lord Hurschell).

[3] R v Fenlon and Neal (1980) 71 Cr App R 307, 313; R v Birks (1990) 19 NSWLR 677, 689; R v Demiri [2006] VSCA 64 [35]; Curwen v Vanbreck Pty Ltd (as Trustee for the WS and NR Harvey Family Trust) [2009] VSCA 284 [21] (Redlich JA).

[4] R v Thompson [2008] VSCA 144; (2008) 187 A Crim R 89.

[5] Ibid [111] - [112] (citations omitted).

[6] R v Foley [2000] 1 Qd R 290, 291.

[7] Cf R v Costi (1987) 48 SASR 269, 271 (alternative hypothesis).

[8] Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 236; Bellemore v Tasmania [2006] TASSC 111; (2006) 170 A Crim R 1, 70 [242]; Cf Curwen v Vanbreck Pty Ltd (as Trustee for the WS and NR Harvey Family Trust) [2009] VSCA 284 [25]-[30].

[9] Bellemore v Tasmania [2006] TASSC 111; (2006) 170 A Crim R 1, 70 [242].

[10] MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, [18] (Gleeson CJ and Heydon J), [40] - [41] (Gummow, Kirby and Callinan JJ).

[11] [2000] 1 Qd R 290, 291.

[12] R v Birks (1990) 19 NSWLR 677, 690; see also R v Cox [2009] VSCA 198 [269].

[13] [2000] 1 Qd R 290.

[14] Ibid, 292. See also R v Manunta (1989) 54 SASR 17, 23 (King CJ); _R v Birk_s (1990) 19 NSWLR 677, 690-1 (Gleeson CJ); R v Laz [1998] 1 VR 453, 464; R v Nicholas [2000] VSCA 49; (2000) 1 VR 356, 410 [143]; R v Thompson (2008) 187 A Crim R 113 [120].

[15] R v Mc Dowell [1997] 1 VR 473, 483 (Smith AJA).

[16] Transcript of Proceedings, The Queen v Coswello (County Court of Victoria, Howie J, 5 May 2009), 139, [16]-[20].

[17] Ibid 139, [26]-[31]; 140 [1]-[2].

[43] Ibid 299, [1]-[4], [8]-[9].

[45] Transcript of Proceedings (Extract of Addresses), The Queen v Coswello (County Court of Victoria, Howie J, 13 May 2009), 30 [25]; 31 [1].

[53] R v Birks (1990) 19 NSWLR 677, 686 (Gleeson CJ).

[54] Eastman v The Queen (1997) 76 FCR 9, 102 (Von Doussa, O'Loughlin and Cooper JJ).

[56] Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 847 (Newton J).

[57] Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848 (Newton J).

[58] [2008] VSCA 144; (2000) 187 A Crim R 89.

[59] R v Thompson [2008] VSCA 144; (2008) 187 A Crim R 89, 111-2.

[60] [2006] TASSC 111; (2006) 170 A Crim R 1.

[61] (1977) 19 NSWLR 219, 236 (Mahoney JA).

[62] Bellemore v Tasmania [2006] TASSC 111; (2006) 170 A Crim R 1, 70, [242].

[63] Bellemore v Tasmania [2006] TASSC 111; (2006) 170 A Crim R 1, 71, [245].

[64] (1987) 48 SASR 269, 271.

[65] [2006] TASSC 111; (2006) 170 A Crim R 1, 70, [243] (Blow J).

[66] Costi v R (1987) 48 SASR 269, 271.

[67] (1990) 19 NSWLR 677.

[68] (1989) 54 SASR 17.

[69] R v Manunta (1989) 54 SASR 17, 23.

[70] R v Birks (1990) 19 NSWLR 677, 691-2.

[71] [2005] HCA 74; (2005) 222 ALR 436.

[72] [2005] HCA 74; (2005) 222 ALR 436, 449, [41] (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ).

[73] [1959] HCA 8; (1959) 101 CLR 298.

[74] [2005] HCA 74; (2005) 222 ALR 436, 449, [41].

[75] [2005] HCA 74; (2005) 222 ALR 436, 448, [40].

[76] See R v McDowell [1997] 1 VR 473, 486 (Smith AJA).

[77] See R v VAS [2006] VSCA 159; (2006) 170 A Crim R 452, 459 (Maxwell P, Vincent JA and Bongiorno AJA).

[78] See Weiss v R [2005] HCA 81; (2005) 224 CLR 300, 317, [44] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).