R v M G [2006] VSCA 264

3 I have had the advantage of reading in draft the reasons for judgment of Coldrey AJA. I agree with his Honour that the appeal should be allowed. That conclusion does not depend upon the particular application of the rule in Browne v Dunn[1] in criminal cases. Even if, which is not the case, the rule could be simply transposed from the civil to the criminal jurisdiction,[2] Coldrey AJA shows very clearly that with respect to two matters the directions given by the learned trial judge erroneously built upon cross-examination of the applicant which was itself based upon a false premise; whilst, in relation to a third matter, his Honour seems to have overlooked the fact that the applicant had asserted long before trial the circumstances of which he gave evidence at trial.

4 Coldrey AJA has referred to MWJ v The Queen.[3] The resolution of this appeal does not depend upon the issues there discussed. Concerning MWJ, which may well require full analysis on some other occasion, I only make these few observations.

5 First, MWJ raised the question whether an accused is precluded from seeking to rely upon supposed inconsistencies in the evidence of Crown witnesses if a Crown witness whose evidence the accused seeks to impugn has not been given the opportunity - as by being recalled at the instance of the accused - to address the alleged inconsistencies. It did not raise the question whether failure by an accused to put to a Crown witness or witnesses a version of events which the accused later gives in evidence may be used to impugn the pertinent evidence of the accused, or his credit, or both; or the question whether failure by an accused to put to a Crown witness or witnesses a version of events later given in evidence by a witness called for the accused may be used to impugn that evidence.

6 Second upon the question which did arise, it was the unanimous opinion of their Honours in the High Court that an accused is not precluded from the reliance which I have described. As Gummow, Kirby and Callinan JJ put the matter, it is not for an accused person to iron out inconsistencies in the prosecution case.[4]

7 Third, Gleeson CJ and Heydon J specifically endorsed the opinion of Doyle CJ in the South Australian Court of Appeal that failure to put a matter to a witness may be taken into account in assessing the weight to be attached to supposed inconsistencies between the evidence of that witness and the evidence of another witness or witnesses.[5] Upon that question, the reasons of Gummow, Kirby and Callinan JJ[6] were to the contrary in circumstances where, as was there the case, the Crown had not sought or offered to recall the impugned witness. Both approaches focused on what criticism could legitimately be made by an accused of prosecution evidence.

8 Fourth, understandably there was no attempt by Gummow, Kirby and Callinan JJ to catalogue the circumstances in which a party's application to recall or offer the recall of a witness will be favourably determined. But their Honours did set out some key considerations. It thus appears that, in a case where the evidence is not yet at an end, the circumstances must be such that "a party [is] genuinely taken by surprise by a failure on the part of the other to put a relevant matter in cross-examination". That would seem to exclude, for example, the situation where

variations in the likely evidence of Crown witnesses are revealed by the depositions.

9 Then, assuming the threshold circumstances are present, an application to recall a particular witness is likely to be viewed favourably, and an offer to recall that witness may be treated as muting later criticism of the witness's evidence, providing, in the case of a Crown witness, that consideration is given to particular matters - that is, the obligations of the Crown not to split its case and to present or make available all relevant evidence to an accused; and providing always that the circumstances are not such that it would be unfair to permit the witness to be recalled.[7]

10 It may be that the reasons of Gleeson CJ and Heydon J on the one hand, and of Gummow, Kirby and Callinan JJ on the other, are wholly reconcilable. But unless and until that is clearly shown to be the case, I consider that it would be wise for trial judges not to permit the particular criticism of an accused's conduct which was considered in MWJ unless, in the case of the Crown witness whose evidence the accused seeks to impugn, the Crown sought or offered the recall of the witness in circumstances such that the judge (had the accused pressed the matter) would have permitted the witness's recall.

11 On 20 April 2005 MG (the applicant) was found guilty by a jury at the County Court at Melbourne on three counts of committing an indecent act with a child under the age of 16 years and one count of sexual penetration of a child under the age of 16 years. The offences were committed between 2 April and 31 December 1999. On 26 April 2005 the applicant was sentenced as follows:

Count 1, indecent act ― 9 months' imprisonment;

Count 2, indecent act ― 12 months' imprisonment;

Count 3, sexual penetration ― 3 years' imprisonment;

Count 4, indecent assault ― 15 months' imprisonment.

12 It was ordered that 3 months of the sentence imposed on count 4 be served cumulatively on the sentence imposed on count 3 and on all other sentences. Accordingly, the total effective sentence was 3 years and 3 months' imprisonment. A non-parole period of 2 years 6 months was fixed. There was no pre-sentence detention.

13 Further, in sentencing the applicant, the judge declared that in respect of counts 3 and 4 he was sentencing the applicant as a serious sexual offender.[8] The judge further declared that the applicant was a registrable offender pursuant to the Sex Offenders Registration Act 2004. This was because the offence of sexual penetration of a child under 16 years was a Class 1 offence under Schedule 1 of the Act and the offence of committing an indecent act with a child under 16 years was a Class 2 offence under Schedule 2 of the Act. Each type of offence was a registrable offence and the judge made a registration order under s.11 of the Act. A person sentenced as a serious offender must, unless otherwise directed by the Court, serve the relevant sentences cumulatively. A person subject to a registration order must, within a specified period, report his or her personal details to the Chief Commissioner of Police.

14 The maximum penalty for committing an indecent act with a child under 16 years is 10 years; the same penalty is applicable for the offence of sexual penetration of a child under 16 years. The applicant, who is now aged 35 years, was 28 years old at the time of the commission of these offences.

15 The applicant admitted nine previous convictions from four appearances at the Magistrates' Court at Sale between October 1988 and February 1996. These were for drug related offences, theft, burglary and wilful damage.

16 The applicant now seeks leave to appeal against both conviction and sentence. The grounds of appeal against conviction in their final form, were as follows:

1. The trial judge erred in failing to give a Longman warning;

2. The trial judge erred in giving a Browne v Dunn direction; and

3. The jury's verdict is unsafe and unsatisfactory.

17 The single ground of appeal against sentence was in these terms:

1. In all the circumstances the sentences on each count, total effective sentence, and non-parole period are manifestly excessive.

18 In order to give the various grounds a context, it is necessary to summarise the facts surrounding the commission of these offences.

19 The complainant, B, who is the applicant's niece, was aged 11 and 12 years at the time of these offences, and was living with her parents and three younger siblings. The family led a nomadic existence, regularly shifting house. The complainant's mother gave evidence that the applicant lived with the family for about 10 years.

20 For about a year and a half in 1998 and 1999, the family, together with the applicant, resided in Kyneton. In 1999 the complainant shared a bedroom with her sister R and for a period of time with another girl K. The complainant's two younger brothers had their own bedroom. It was the Crown case that they shared this bedroom with the applicant (their maternal uncle) when he intermittently resided at the home.

21 According to the evidence of the complainant's mother, the two girls had a bedroom at the rear of the Kyneton premises, whilst the boys' room contained a set of bunk beds and a mattress on the floor for the applicant. The complainant sometimes slept in the boys' room, on occasions when her youngest brother, N, suffered night terrors.

22 The offences constituting counts 1, 2 and 3 were alleged to have occurred between 2 and 15 April 1999 just prior to the complainant's 12th birthday. On this occasion, the complainant was sleeping on the top bunk of her brothers' bedroom, with her brothers occupying the lower bunk. At about 2.00 a.m. she was awakened by the applicant knocking on the bedroom window. At his request, she opened the door to admit him to the premises. She noticed, from his breath, that he had been drinking, and it was her understanding that he had returned from a girlfriend's house. The complainant returned to the top bunk, assuming that the applicant would sleep in the loungeroom because he had been drinking.

23 According to her evidence, she woke to find the applicant had climbed into the top bunk. He rubbed her breasts, while saying: "You're enjoying this aren't you" (or similar) (count 1). He then put his hands down her pyjama pants and rubbed her vagina with his four fingers (count 2). The applicant then inserted a finger into her vagina and left it there for about two minutes. The complainant's evidence was that this hurt her and caused a burning sensation. When the complainant tried to pull her pyjama pants back up, the applicant removed his finger. She then rolled over to go to sleep. The applicant told her not to tell anyone or her dad would kill her (or similar). He left the room (count 3).

24 On a night after the complainant's 12th birthday (the presentment particularises the time as between 16 April and 31 December 1999) the subject matter of count 4 occurred.

25 On this night the complainant was sharing her bedroom with K. The former was on the lower bunk and the latter occupied the top bunk. At about 10.00 p.m. the applicant entered the bedroom, inserted his fingers into the complainant's mouth, and moved them around. The complainant deposed to slapping the applicant across the face. Nevertheless, he then climbed into her bed and lay beside her. She turned over to face the wall and the applicant pulled her back and grabbed her hand. He placed her hand on his penis. He then removed his own hand and left the complainant's hand where it was. He said to her: "You're really enjoying this, aren't you" or similar. She tried to say no. He then said: "This is what you do to R", (or similar). She did not understand what that meant. The complainant said she moved her hand away by rolling over. She believed the applicant then left the room.

26 The following day the complainant saw the applicant, apparently on the way to his girlfriend's house. He said to her: "If you're going to dress like that you might get raped one day. It might even be from me." She just walked on.

27 Evidence was also adduced of uncharged acts. The complainant's brother J deposed to an incident at the Kyneton premises at about 2.00 a.m. on an unspecified date in 1999. He said he was 8 years old at the time, although he had been born on 1 January 1989. Be that as it may, he gave evidence of seeing the complainant go to the applicant's bed and the applicant put the doona over both of them. He next saw the applicant put his right index finger into the complainant's mouth and move it up and down for about two minutes. Subsequently, the applicant said to him: "If you tell anyone, I'll hurt you." He said that he had told his mother about the incident the next day. This account was not specifically supported by the mother. Her evidence, in cross-examination and re-examination, was to the effect that her son, J, had told her that the complainant and applicant were "doing it" but this information had been imparted at a time when the son was aged about 12. She had asked the complainant about the incident and she had responded that nothing had occurred.

28 In her evidence the complainant stated that the applicant had committed sexual acts upon her on about 50 occasions. She placed one such incident (another uncharged act) as occurring at the Levi Caravan park in Adelaide. She was in the upper bunk in a shared family cabin when the applicant came over and rubbed her breasts with his hands for about five minutes. The complainant stated that it hurt. She tried to push the applicant away but was not strong enough. She rolled over and the applicant went out.

29 In December 2001 the complainant made a statement to police about the incidents and subsequently, on 6 March 2002, the applicant was interviewed by investigating police. In his record of interview he admitted residing with the family in Kyneton in 1998 and 1999. He stated that he had his own bed in his own room, the boys had their own room, the girls another room out the back, and that the parents of the complainant slept in the lounge. He denied all allegations of sexual activity with the complainant.

30 The applicant gave evidence in which he stated that he had lived with the family for a total of about 14 years, of which about one and a half years was spent with them at Kyneton. When at the Kyneton home, he slept in the front room of the house. However, he stated that he spent more nights at his girlfriend's house or a mate's place than he did at the house of the family. The applicant denied committing any of the sexual acts alleged or making any threats.

31 Apart from his denial that any sexual activity occurred in the Adelaide caravan park, the only other mention of it, during the applicant's evidence in chief, was to describe the dividing curtains in the cabin and to assert that there were no times when he was in the cabin with the complainant in the absence of her parents.

32 By contrast, in a cross-examination which occupied a total of nine pages, some five were devoted to the circumstances in which the applicant came to leave the caravan park and his subsequent contact with the family.

33 In the course of that cross-examination it was put to the applicant that he had not seen any of the family, and in particular the complainant, since that date. A second aspect of the cross-examination related to the circumstances surrounding the applicant's admitted departure from the caravan park. He gave an elaborate account of purchasing tickets (apparently bus tickets) from an organisation called Fireflies for the family to return to Bendigo. The applicant deposed to returning to the caravan park with the tickets (and to collect his own bag) to be told that the family were not intending to return to Bendigo but were planning to travel to Renmark. He went back to the booking agency where he tried to get a refund on the tickets that he had booked. He stated, in effect, that he had had enough of moving around, and he reiterated that the family had subsequently visited he and his brother in Maffra.

34 I will return in detail to that cross-examination in examining ground 2.

35 Ground 1 asserted that the trial judge erred in failing to give what has entered legal parlance as "a Longman warning".[9]

36 It is unnecessary to set out yet again the myriad of judicial pronouncements about the necessity, in certain circumstances, for a jury to be given such a warning. It is sufficient to note that Longman's case involved a complainant who was 6 at the time of the first alleged sexual assault, and aged 10 at the time of the second. She first complained to the police 20 years after the latter assault and, at the time the complainant gave evidence in the trial, some 26 years had elapsed from the first alleged assault.

37 A number of subsequent authorities stand for the proposition that any such warning should be tailored to the facts and circumstances of the individual case; and that not every delay or deficiency in a prosecution case will require a full Longman warning.[10]

38 It was submitted that, given that these offences occurred between April and December 1999; that the complainant did not complain until December 2001; and that the applicant was not interviewed until March 2002, the interval of almost three years constituted sufficient delay to require a Longman warning to be given by the trial judge.

39 Counsel for the applicant argued that, as a result of the delay, the applicant was at a forensic disadvantage. This manifested itself in two ways: first, it was contended that if the bunk bed on which the complainant had slept was particularly noisy or unstable, and another person occupied the room at the same time, that it would be likely that such other person would have been aware of any activity between the complainant and applicant. The delay meant that no inspection of the bunk beds, to ascertain if they were noisy or unstable, was possible. Secondly, the complainant had given evidence of a friend K sharing her room at the time that count 4 was committed. The delay had meant that K could not be located to confirm the complainant's account.

40 In considering these submissions, it should be noted that there was some limited evidence before the jury in relation to both these matters. The applicant never suggested that the bunk beds were noisy (although he asserted that the flooring of the Kyneton property was squeaky). The complainant effectively denied the proposition that the bunk beds were unstable, affirming the solidarity of the construction. The complainant's brother J had no memory of the bunks making a noise and the complainant's mother was not cross-examined about the situation.

41 Insofar as the potential witness K is concerned, the complainant's evidence was that she was 18 or 19 years of age, and was not her friend (but the friend of an uncle) and that she was not a person with whom she sat and talked. Further, the complainant gave evidence that K was asleep at the time; that slapping the applicant's face did not wake her up; and that if K had heard anything, she would have spoken to the complainant.

42 In the event, the trial judge declined to give a Longman warning. The judge found the delay to have been from April 1999 until the time of interview of the applicant on 6 March 2002 when he was made aware of all the allegations (save for the alleged incident in the Levi caravan park). His Honour dealt (inter alia) with the incapacity to inspect the bunks and locate K and accepted that these circumstances may have occasioned some detriment to the defence. (I interpolate that the circumstances may have also caused some forensic disadvantage to the Crown).

43 After a careful legal analysis in which the trial judge specifically examined the authority of R v Mazzolini,[11] his Honour concluded that a Longman direction was not required. The unavailability of the bunk bed and the potential witness K were matters which the jury could easily comprehend and assess. I agree with the trial judge's view that a Longman warning was not required. Moreover, his Honour referred to these specific matters during the course of his charge in the following terms:

"I now turn to what I will call the question of delay. I have already given you some directions concerning the way in which you should assess the evidence that has been given by all the witnesses in this trial. When you assess that evidence, you are evaluating the reliability, the veracity, the truthfulness of those witnesses. This is a trial which concerns events alleged to have taken place mainly between April and December 1999. I make a comment which you are free to take into consideration or not according to your own view of the evidence. The comment is that you may think that with the passage of time, memories fade and it is difficult to recall things that happened some time ago, the harder it becomes the longer the interval between when the events took place and the time at which these matters have to be considered in a court.

You may also think, although this is entirely a matter for you, that by the time [MG] was made aware of the allegations again him by [the complainant] and that is when he was interviewed by the police in March 2002, some things have already changed. The ... family were, by that time, no longer living in the house in Kyneton. Thus it was no longer possible to inspect the bunks which had been in the various rooms in the house at Kyneton. The person who was known as K could not be traced. [The complainant] had said that K was in the top bunk when the offence which she alleges to be count 4, had taken place."

"You do not know and cannot know what evidence could have been given about the bunks or what evidence could have been given by K. The evidence about the bunks may have helped the defence. The evidence about K may have helped the defence, it may not. The evidence about the bunks may have assisted the Crown. K's evidence may have assisted the Crown, but you do not know anything about that and you cannot speculate.

What is known is that with the passage of time, that evidence is not available to anybody. Clearly that creates disadvantages.

I have given you those illustrations simply to demonstrate how the passage of time may cause disadvantages, in particular to a person who was confronted by allegations that he has committed serious criminal offences."

45 In my view this was a fair and balanced approach and quite sufficient in the circumstances of this case. Furthermore, the trial judge went on to make it abundantly clear the prosecution bore the onus and burden of proof. Indeed, he emphasised that concept with the following direction:

"Let me say something about another trap which a jury could fall into and that can occur whether the alleged offences are of recent occurrence or are said to have taken place some time ago. It may appear to be attractive superficially to say, 'OK, well, let's sort this out by working out who is lying.'

The attraction is real, but it is superficial. The problem is that you may not be able to resolve the conflict of evidence. You may not be able to make any decision about that. Your task, so far as you are able to do so, is to try and ascertain where the truth lies. However, you can only convict [MG] on whichever count you are considering if you are satisfied of the truth of the allegations made on behalf of the Crown.

The problem of the 'who is lying' approach is that it sometimes ignores the fundamental proposition. The onus of proof is on the Crown and the standard of proof is beyond reasonable doubt.

Having said that, in this case, where you do have a sharp conflict in the evidence, that is to say [the complainant] saying these things occurred, [MG] saying they did not, seems to me - and this is a comment I make which of course does not bind you in any way - unless the Crown can satisfy you to reject [MG]'s evidence and to accept the version given by [the complainant], then you could not convict [MG] of any of these offences.

Let me put that in another way to you. Even if you did not accept [MG]'s evidence, you still need to be satisfied beyond reasonable doubt of the guilt of [MG] whether you accept his evidence or not, so that it comes down to this. You must accept the evidence of [the complainant] that the four counts, whichever one you are then considering, occurred. You must be satisfied beyond reasonable doubt that (sic) each element of that offence and then and only then can you find [MG] guilty of that particular offence."

46 Before this Court, further factors, not argued before the trial judge, were raised. It was put that the unreliability of the complainant's evidence created the need for a Longman warning.

47 In this regard counsel pointed to the complainant's failure to tell her mother about the applicant's conduct; that she was unsure whether she was on the top or bottom bunk at the time of the second alleged sexual assault (count 4); and that there were significant issues about the complainant's recollection of events. However, these assertions must be placed in context. First, the complainant explained that she did not tell her mother about the applicant interfering with her because of the threats he had made to her. Secondly, the discrepancy between bunks was constituted by her evidence at the committal proceedings that she was on the top bunk, and her evidence at trial that she was on the bottom bunk. The complainant explained this discrepancy as confusion arising from the fact that some nights she used to sleep on the top bunk and other nights on the bottom one.

48 As to the complainant's ability to recollect the events, she stated that "some of it's pretty clear, but not all of it" and that from what she remembered she had given an accurate account to the Court.

49 All of these matters were capable of going to the witness' credit, and all were eminently capable of assessment by a jury. No specific warning was required, and, in any event, in the passages I have already quoted, the trial judge explained to the jury the effect of delay upon the applicant's case; the manner in which the evidence of the complainant should be approached; and the obligations which fell upon the Crown to prove the various charges.

50 In my view, in the circumstances of this case, his Honour's charge was perfectly adequate and this ground has not been made out.

51 Ground 2 is that the trial judge erred in giving a Browne v Dunn direction to the jury.

52 The so-called rule in Browne v Dunn has been considered in many authorities, and, although its genesis was in civil litigation, it also has a relevance to criminal trials.[12] Most recently, the ambit and applicability of the rule was considered by the High Court in MWJ v R.[13]

53 In their joint judgment Gleeson CJ and Heydon J stated:

"The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand [cases cited], to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused [case cited]. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings."[14]

54 In the joint judgment of Gummow, Kirby and Callinan JJ, it was put this way:

"We should next say something about the rule in Browne v Dunn, which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice's reference to the appellant's counsel's failure to seek to have the complainant recalled for further cross-examination. 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 position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. 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 [authority cited]. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory nature of the criminal trial in this country."[15]

55 This decision, which post-dated the present trial, but which draws together earlier judicial pronouncements, sets out the matters which a trial judge should consider before embarking upon a Browne v Dunn direction.

56 In the instant case, the trial judge expressed the opinion that the rule in Browne v Dunn had been breached in three particulars. The first and third matters were discussed in these terms:

"During the course of his evidence, [MG] gave evidence of a number of matters, some of which have to do with the circumstances in which he departed from the [family] home when he and the ... family were living in a caravan, or a cabin, in a caravan park at Levi near Adelaide in South Australia.

Evidence was given by [the complainant], and [her mother], that on one morning whilst the family and [MG] were staying in the cabin, [MG] departed suddenly and that there has been no contact since that time. [MG] gave evidence that on the morning on which he left he went into Adelaide and purchased some coach tickets for himself and the ... family to allow them all to travel together to Bendigo and that when he returned to the caravan park, the ... family had changed its mind about going to Bendigo and instead decided that they would go to Renmark. He said it was for that reason that he ceased living with the ... family. None of that was put to [the mother] or [the complainant]. In my view it ought to have been. ... Furthermore, [MG] gave evidence that since he departed from the Levi cabin the whole ... family had visited the home where he is now living and was living at that time at Maffra, that being the home of one of [the mother's] other brothers, and therefore one of his brothers as well. That proposition was not put either to [the mother] or [the complainant]. In my view it ought to have been because it contradicts the evidence that they gave."

"I am conscious that [the complainant] gave evidence in cross-examination at T.126 of some contact between her family and the accused and that too was not put to [the mother]."

57 The events at the Levi Caravan Park constituted an uncharged act of sexual assault. That act had relevance to establishing a sexual relationship and the applicant's guilty passion, and the circumstances of the applicant's leaving had some probative weight as to the probability of the occurrence of that alleged sexual assault. The subsequent contact with the complainant and her family also had some limited probative weight as to the probability of there having been prior sexual activity between the applicant and the complainant.

58 As can be seen it was the view of the trial judge that the applicant's evidence of the circumstances of his leaving was contrary to the evidence of the complainant and her mother and should have been specifically put to them.

59 There is no doubt that the details of the applicant's departure had not been put to either witness. Indeed, they were elicited in cross-examination and not as part of the applicant's case. Whilst the previous authorities have not adverted to this circumstance as having any crucial bearing on the breach of the rule in Browne v Dunn,[16] it may well be that it is a factor which should influence the approach of a trial judge.

60 More importantly, for present purposes, is the nature of the asserted discrepancies to which the attention of the Crown witnesses should have been directed.

61 The evidence of the applicant that he was present when the family got up the next day is not necessarily contradicted by the complainant. The furtherest she went in her evidence is contained in this question and answer:

"Q. When you got up the next morning, or that morning, in daylight, was he there?

There was no inquiry as to what time of the morning that may have been. The witness was next asked:

"Q. Did you see him again that day?

A. No. I never seen him after that."

This answer was in the context of again seeing the applicant at the caravan park. That this is so is made clear by the following exchange:

"Q. After that occasion in Levi Park in South Australia, have you seen him, apart from at court?

A. Yes.

Q. With the family, or ...

A. Yes."

62 Similarly, the evidence of the mother is not inconsistent with that of the applicant. She was asked:

"Q. Did [MG] stay the three days that you were there?

A. He left the - the second day. He said he had to go in a hurry.

Q. Did he say why?

A. No, he just took off."

63 The mere fact of a purported conversation with the applicant is consistent with some discussion prior to the applicant leaving.

64 In relation to subsequent contact between the parties, it is clear from the complainant's evidence, which I have already quoted, that she and the family had seen the applicant at a later time.

65 In cross-examination this becomes even clearer:

"Q. You continued having contact - and when I say contact, I mean seeing your uncle, talking to him, up until 2001, didn't you?

A. Yes.

Q. The times that you saw him were sometimes with your family?

A. Yes.

Q. Was it always with your family?

A. Yes, as far as I remember. I didn't like being around him by myself.

Q. You treated him the same as you always had, didn't you?

A. When my family weren't around he was really nasty to me, so I wasn't - wouldn't go next to him. But when they were around he'd be nice to me, so I'd be nice back."

66 Moreover, the evidence of the mother on this topic appears to have been misconstrued in the legal argument at the trial. Her evidence was not that, after the applicant took off in a hurry from the caravan park, she did not see him again. The question she was asked was:

"Q. Has he stayed with you again since that occasion?

A. No."

67 This is a quite different proposition from whether the witness had seen, or had had subsequent contact with the applicant.

68 That such subsequent contact had occurred was quite clear on the complainant's evidence.

69 It should not be overlooked that, the complainant having already given evidence of continuing contact between her family and the applicant, the Crown was well and truly on notice as to the situation and could have explored the matter with the mother in her evidence in chief.

70 Indeed, it needs to be understood that it was never asserted by the applicant that he had stayed in the household of the mother again.

71 True it is that the details of the applicant's departure from the Levi Caravan Park and later contact with the family were not specifically put to the witnesses but, as was made clear, the defence reliance was on the complainant's evidence of subsequent family contact.

72 One unfortunate side effect of this view of the evidence is that the applicant was cross-examined about it on an erroneous basis. The cross-examiner not only mixes up the evidence of the mother and the complainant but also misstates its effect.

"Q. Did you get on the phone and speak to [the mother]?

A. No.

Q. When she was giving her evidence she said that you were staying with them over in Adelaide in this caravan park that had the cabin; remember?

A. Yes.

Q. Levi Caravan Park?

A. Yes.

Q. She said that what happened, you stayed the night, and then the next day ...?

A. Yes, I went into Adelaide.

Q. Wait a minute, wait a minute, let me just get the passage. When she says in answer to this question, 'When you got up the next morning, or that morning, in the daylight, was he there'? 'No' 'Did you see him again that day?' 'No I never seen him after that.' 'Do you remember giving that evidence in - where you're sitting now, in the witness box?'

HIS HONOUR: No, not this witness giving the evidence. Aren't you asking whether he remembers whether Mrs ...

COUNSEL: [The mother] gave that evidence a couple of days ago on the 14th.

HIS HONOUR: Yes.

COUNSEL: When you were in the dock here do you remember her saying that to the jury?

A. No, not really.

Q. That's what she said?

A. That - that I wasn't there when - when they got up?

COUNSEL: Yes.

A. I was there when they got up.

Q. Did you hear her say that when she was giving her evidence, that when they got up ... ?

A. I don't recall. I don't recall it actually.

Q. You don't recall it?

A. No, I don't, no.

Q. She says that she hasn't seen you since that occasion over at the caravan park?

A. No. Yes, that's right. No, they came down to visit us.

Q. She says, 'No I never seen him after that.' That's her evidence. Did you say you didn't hear that?

A. I'm not saying I didn't hear it. I probably heard it. I just - yes.

Q. That's the proposition, you haven't seen her since that occasion at the ...?

A. Yes, I have.

Q. ... Levi Caravan Park have you?

A. They came to visit us.

Q. You have?

A. Yes. In the same house we're in now, they came down like - I can't remember when it was. Well they came down and stayed down for a few days.

Q. You heard her say in this Court on 14 April that when they got up the next morning, 'he wasn't there and I never seen him after that'?

A. Well, I do - I remember her saying that, yes, when she was in here.

Q. Didn't that excite your memory to say, 'hey, that's not right, I've seen you since then'?

A. Yes, I've already said that.

Q. Hey?

A. I've told people that.

Q. You tell your barrister?

A. Yes I think I did."

73 In effect, the applicant's account is suggested as being one of recent invention. One of the vices of this cross-examination is that it places evidence given by the complainant into the mouth of her mother and, moreover, it takes the evidence of the complainant out of context. I can only assume that it arose from confusion or misunderstanding by prosecution counsel of what the evidence had been.

74 The second of the three matters which motivated the judge to give the Browne v Dunn direction was couched by his Honour in these terms:

"Furthermore, throughout the course of the trial evidence was given by [the complainant] and [the mother] that [the parents] ... occupied a bedroom in the house and that they slept in the loungeroom only on such nights that [MG] did not sleep in the loungeroom. [MG] gave evidence of when he slept in the home at Kyneton he slept in the front bedroom and that [the parents] slept in the loungeroom. [The mother] was not cross-examined to have that put to her."

75 During the course of argument it was conceded by defence counsel that he did not specifically put to the mother the applicant's claim that he slept in the front bedroom when he stayed at the Kyneton premises and that the parents slept in the loungeroom. This was his evidence both in chief and in cross-examination.

76 In response to the trial judge's query, defence counsel advanced no reason as to why a Browne v Dunn direction should not be given.

77 However, there was a plethora of evidence about sleeping arrangements. For example, the complainant deposed to the applicant sharing a room with her brothers. In cross-examination she stated that the applicant never slept in her parents' bedroom, albeit her parents slept in the loungeroom when the applicant was not at home. The mother's evidence was that the applicant slept half the time in the loungeroom and half the time in the boys' room.

78 Although the proposition as to the applicant sleeping in the front bedroom was not specifically put to the mother in cross-examination, it was clearly before the Court. Strangely no reference was made to this fact in argument. In the applicant's record of interview he asserted on many occasions that he had his own bedroom and that the complainant's parents slept in the lounge. It could not be claimed, therefore, that the prosecution was unaware of the applicant's claims or taken by surprise. Furthermore, the importance of this evidence could at best be marginal. Access to the complainant on the occasions of the alleged offences would appear to have been available wherever the applicant was sleeping in the premises.

79 I can find nothing in the charge to suggest that this assertion by the applicant, if false, could be used in assessing his credit generally, or as a harbinger of a consciousness of guilt. If the evidence has any probative value (and it could only be as to opportunity) it is minimal in all the circumstances.

80 I have analysed the material to demonstrate both its evidentiary flaws and its limited level of materiality. The former were equally reflected in the judge's directions which were given towards the conclusion of his charge and at the end of his directions on the law. What his Honour said was as follows:

"Now during this trial, [MG] gave evidence of these matters. First - and this is at pp.199-200 of the transcript - he said that when the ... family and he was staying at the Levi Caravan Park he was present when members of the ... family got up the next morning. Both [the complainant] and [her mother] had given evidence that [MG] had gone the next morning and that they did not see him."

81 As I have already indicated, this was certainly not so of the mother's evidence.

"[MG] also gave evidence - and this appears at p.200 of the transcript - that being with the ... family at the caravan park, he had seen them. He said that the whole ... family had come to Maffra where he was then and still is living and had stayed for some days at the house where he lived with another of his brothers. I think his name is David.

[The mother] had said that she did not see [MG] since the caravan park at Adelaide."

"[The complainant] said that she and her family continued to see [MG] until 2001, p.126 of the transcript. [MG] also said at pp.194, 197 and 206 that when he slept in the house at Kyneton, he slept in the front bedroom at night and that [the parents] slept in the loungeroom when he was there.

So I have just reminded you of three particular topics about which [MG] gave evidence. Were this evidence true you might well think that [the mother] and to a lesser extent [the complainant] could have supported it, but [defence counsel] did not, when he cross-examined these witnesses, give them the opportunity either to support the allegations or to deny them.

There is a rule of conduct, which required counsel to put a proposition in cross-examination to any witness who might be expected to be able to confirm or deny it, to give to the witness the opportunity to confirm or deny it. It is an important rule. Its existence is to enable you the jury to better assess the evidence of a particular witness. It may be that if the allegation had been put in cross-examination [the mother] or [the complainant], where appropriate, would have shown by words or demeanour that she agreed with the proposition. On the other hand, it may be that each of them, where appropriate could have made a devastatingly effective denial of the proposition.

The failure to cross-examine about these matters deprives you of the opportunity of seeing what the reaction of each of those witnesses would have been if they had been confronted with a particular proposition.

A failure to comply with that rule - and I stress that it is a rule of practice not a rule of law - a failure to comply with that rule may occur for a number of reasons. Some of them were innocent and some of them not so innocent. Sometimes for example the failure may simply occur by mistake. Counsel just forgets to ask the right question or perhaps misunderstands his instruction. Whether an explanation exists of course properly depends on the seriousness or significance of the allegation, the nature of the subject matter of the various topics and their importance in the case.

Sometimes it would merely be a waste of time to cross-examine a witness about the allegations because it is clear from the rest of the evidence of that witness that the witness would deny it in any event. Sometimes it may be that the witness' own account is so incredible and romantic that the most effective cross-examination is not to make any at all.

Sometimes on the other hand, it is plain that if the allegation was true, fairness dictates that it should have been put to the other witness. In that case, you may well wonder why it was not put. You will be entitled to think that the real reason it had not been put was that it was invented after the witness had given that evidence. In such a case you are entitled to use the failure to put the allegation to the other witness as a reason for doubting the truth of the allegation.

Of course a failure to put an allegation cannot itself disprove the allegation, nor can it have the effect of proving any element of any of the offences for which [MG] is on trial. It remains the case, as I have said on a number of occasions, that the Crown has to prove each element of each offence beyond reasonable doubt.

The only effect it can have is that enabling you to form a view of the evidence which has been given and perhaps enabling you to more readily accept evidence because the contrary assertions were not to witnesses or enabling you to reject assertions because they were not put to witnesses who could have denied them."

82 Exception was taken by defence counsel and was dealt with by the trial judge in these terms:

"The second last exception raised by [defence counsel] was to do with the giving of the Browne v Dunn direction. He submitted that because in his closing address he did not place reliance on the matters that arose in cross-examination, there was no need and it was inappropriate for the Browne v Dunn direction to have been given.

In my view, listening to the whole of the closing address of [defence counsel], it was clear that he was relying upon, among other things, the evidence that [the complainant] had given of contact continuing between members of the ... family and [MG], after the four offences for which he is on trial and in my view, balance required the giving of the Browne v Dunn direction and it is for that reason that I do not propose to say anything further to the jury about that."

83 As I have sought to demonstrate, there were no real inconsistencies between the evidence ultimately adduced from the applicant in cross-examination and the evidence given by the complainant and her mother. The applicant already had elicited in cross-examination of the complainant the fact of ongoing contact between the parties. The Crown was on notice as to that situation and did not seek to explore it further with the complainant's mother. The fact that further detail emerged in the cross-examination of the applicant did not alter the basic position in relation to the departure from the caravan park and subsequent meetings between the family and the applicant.

84 The trial judge was obviously monitoring the situation closely since he raised the question of a Browne v Dunn direction immediately following the conclusion of the applicant's evidence. Consequently, it would have been open to the judge, at any time prior to the conclusion of all the evidence (or even after the defence evidence had concluded) to have the complainant and her mother recalled for further details to be put to them. Whether this would have been warranted, given the state of the evidence to which I have referred, is problematic. However, what is clear, in my view, is that the nature of the evidence and the way it emerged did not result in inconsistencies of such a dimension as to warrant any Browne v Dunn direction on these issues.

85 Similarly, not only was the evidence of the applicant sleeping in the front bedroom of marginal significance in the circumstances, it was an assertion of which the Crown must have been well aware, given the contents of the record of interview. Accordingly, this too, should not have attracted a Browne v Dunn direction.

86 As I have previously noted some five of the nine pages of cross-examination of the applicant was directed to the circumstances of him leaving the Levi Caravan Park and subsequent contact with the complainant and her family. Part of this cross-examination was based on an erroneous understanding of the evidence and was aimed at suggesting that the applicant had been guilty of recent invention. This situation was aggravated by the unnecessary and factually erroneous Browne v Dunn direction which reinforced the potential for the jury to conclude that the applicant had recently invented a portion of his evidence thus reflecting adversely on his credibility. Another aspect of the direction was to inform the jury not only that it could reject the assertions of the applicant about the episode at the caravan park and subsequent events, but that it could more readily accept the contrary evidence of the Crown witnesses.

87 As I have made clear, on my analysis there was no such contrary evidence in relation to the departure from the caravan park and its aftermath. On the subject of the sleeping arrangements the prosecution was well and truly on notice as to the discrepancies in the evidence of the parties.

88 This was a case essentially of oath against oath in which credibility was absolutely critical. The conduct of the prosecution, together with the superimposing of the Browne v Dunn direction would, in my view, have adversely affected the credibility of the applicant to such an extent as to deprive him of a fair trial. Further, given its penultimate position in the judge's charge the Browne v Dunn direction would have assumed a prominence and significance in the minds of the jurors.

89 It is not to the point that the trial judge made clear to the jury that this was not an inquiry into who was lying and that the complainant's evidence had to be accepted beyond reasonable doubt before any finding of guilt could be made. The effect of the Browne v Dunn direction was in my opinion to unfairly bolster the credibility and reliability of the complainant and her mother, whilst, at the same time, reducing that of the applicant.

90 Accordingly, for the reasons I have advanced, I have concluded that the giving of the Browne v Dunn direction was a material error which deprived the applicant of a trial according to law. Moreover, this is not a case for the application of the proviso. As I have indicated, it was a trial in which an assessment by the jury of the credibility of the complainant and the applicant was of paramount importance. In a case such as this, an appellate court, confined as it is to a written record of proceedings, is quite ill-equipped to undertake the task of evaluating the evidence to determine whether the applicant was proved beyond reasonable doubt to be guilty of these offences.[17]

91 Ground 3 was that the jury verdict was unsafe and unsatisfactory. Given that the previous ground has succeeded, it is unnecessary to consider this ground any further.

92 Accordingly, I would give leave to appeal, allow the appeal, quash the conviction and order a retrial. It is unnecessary to consider the application for leave to appeal against sentence since such sentence must also necessarily be quashed.

[1] (1893) 6 R 67.

[2] As to which see, most recently, MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329.

[3] Citation at footnote 2.

[4] Ibid at 339. [39].

[5] Ibid, at 333, [19].

[6] Ibid at 339-340, [41].

[7] Ibid at 339, [40].

[8] See Part 2A Schedule 1 of the Sentencing Act 1991.

[9] [1989] HCA 60; (1989) 168 CLR 79 at 90-91 per Brennan, Dawson and Toohey JJ and 108-109 per McHugh J.

[10] See for example, R v WEB [2003] VSCA 205; (2003) 7 VR 200 and R v EO [2004] VSCA 41; (2004) 8 VR 154.

[11] [1999] VSCA 150; [1999] 3 VR 113.

[12] See for example R v Manunta (1990) 54 SASR 17; R v Birks (1990) 19 NSWLR 677; and R v McDowell [1997] 1 VR 473.

[13] [2005] HCA 74; (2005) 80 ALJR 329; 222 ALR 436.

[14] para. [18].

[15] paras. [38]-[41]

[16] See R v Manunta (Ibid) and Beattie & Anor v Ball [1999] VSCA 227; [1999] 3 VR 1

[17] Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 at [41].