R v S W C [2007] VSCA 201

Court of Appeal (Vic)|2007-09-20|Before: MAXWELL P, KELLAM JA and KAYE AJA

CRIMINAL LAW - Appeal against conviction - Sexual penetration of and indecent acts with a child under the age of 16 years - Failure by defence counsel to cross-examine key Crown witnesses on matters repudiated by accused in evidence - Failure to comply with rule of practice in Browne v Dunn - Direction to jury - Direction incapable of curing miscarriage caused by departure from rule in Browne v Dunn - Cross-examination of accused by prosecutor as to whether Crown witnesses lying - Whether cross-examination impermissible - Appeal against conviction allowed.

2 The application for leave to appeal was based on four grounds. On the hearing of the appeal the Crown conceded that the application should be granted on grounds 1 and 2. We note that counsel for the respondent first gave notice to the Court, of the position taken by the Crown, in his written submissions more than one month before the date scheduled for hearing of the appeal. The Court is indebted to counsel for the timely notification of the attitude of the respondent. Upon considering the written submissions by counsel for the applicant and counsel for the respondent, we came to the conclusion that the application for leave to appeal should be granted, and accordingly orders were made to that effect. We now provide reasons for those orders.

3 It is not necessary to rehearse the evidence in any detail. Briefly, at the time at which the incidents comprising counts 1, 2 and 3 occurred, the applicant lived with his family in country Victoria. His brother (M) and his family lived nearby. In early 2002 the applicant's wife was terminally ill, and was in a serious condition. In her evidence J stated that, at that time, she regularly attended the applicant's home in order to assist with the care of her aunt. On some of those occasions she stayed overnight at the applicant's home. It was alleged that the incidents referred to in counts 1 and 2 occurred during those visits. It was also alleged that the incident comprising count 3, involving the applicant's daughter K, also occurred at those premises. In her evidence K stated that the indecent act which constituted that count occurred when she and the applicant were in the shower. She said that she and the applicant used to shower together, and that that practice had continued until she was 13 years of age.

4 The applicant's wife died in early 2002. In the following year the applicant and his family moved house. They stayed temporarily at other premises, where the incident comprising count 4 was alleged to have occurred. The incident in count 5 was alleged to have occurred after the applicant and his family had moved house and J was staying with them on a visit.**

**5 The course taken by counsel for the accused at trial was, to say the least, most unusual, and gave rise to extraordinarily difficult problems for the trial Judge. Both complainants gave evidence. They were cross-examined particularly briefly. The main thrust of the cross-examination was directed to the lack of recent complaint. It was not put to either complainant in cross-examination that the applicant denied the allegations she made. But, after both had given their evidence, and apparently at the request of the applicant's counsel, the complainants were recalled. The applicant's counsel put to each complainant that the applicant denied her allegations. Each complainant took issue with that denial.

6 In addition to the two complainants, other witnesses were called for the prosecution, including the applicant's brother, (M), and M's wife, (A). M gave evidence of an incident which occurred when he visited the applicant's home, and made observations from which it would be inferred that the applicant was in the shower with his 13 year old daughter, K. There was no cross-examination at all of M. A gave evidence, which supported the evidence of her daughter, J, that at the time at which the applicant's wife was dying, J regularly visited the applicant and assisted in his home. That evidence was not challenged in cross-examination.

7 The applicant gave sworn evidence. He denied all of the allegations made by the two complainants. Further, he gave three other pieces of evidence which should have been, but had not been, the subject of cross-examination of Crown witnesses. First, the applicant denied that his niece J had come to help in his home when his wife was dying. He described J's evidence to that effect as "absolute rubbish". That denial should have been, but was not, the subject of cross-examination of J and of her mother, A.

8 Secondly, the applicant stated that, at the time at which J alleged the incident comprising count 1 had occurred, a friend, (G), was residing at his home, and was sleeping on the lounge room couch. That evidence was inconsistent with the evidence of J that, at the time of the incident referred to in count 1, her aunt was sleeping in that room. The proposition that G was sleeping there should have been, but was not, put to J in cross-examination. Thirdly, the applicant stated that he had ceased showering with his daughter, K, when she turned seven years of age. That evidence by the accused was inconsistent with the evidence of his brother, M. As noted earlier, no questions were asked of M in cross-examination.

9 At the conclusion of the applicant's evidence in chief, the prosecutor raised with the trial Judge the deficiencies in the cross-examination of the Crown witnesses to which we have just referred. His Honour stated that he had noted the same deficiencies. Counsel for the accused accepted that the prosecutor was entitled to cross-examine concerning the matter relating to G. He conceded that that matter had not been put to the relevant Crown witnesses.

10 The prosecutor then proceeded to cross-examine the applicant. In the first stanza of that cross-examination, the applicant agreed with the prosecutor's suggestion that, based on his evidence, K, J, M and A had all lied in their evidence.

11 The first ground of appeal relates to the directions which the trial Judge gave to the jury concerning the failure of the applicant's counsel to put the three matters to which we have referred to the witnesses in cross-examination. The second ground of appeal relates to the cross-examination of the applicant by the prosecutor, and in particular those parts of the cross-examination in which the prosecutor asked the accused whether certain witnesses of the Crown had been lying.**

Ground 1: The rule in Browne v Dunn****[1]

**12 The substantial failure of the accused's counsel to comply with the rule of practice commonly referred to as the rule in Browne v Dunn placed the trial Judge in an impossible position. Realistically, the problem could not have been remedied by permitting the four Crown witnesses to be recalled for further cross-examination after the completion of the accused's evidence. Such a course would only have exacerbated the problem.

13 Although the rule in Browne v Dunn must be applied with caution and a degree of moderation in criminal trials,[2] the present case involved such an extraordinary failure to comply with the rule that it was legitimate for the prosecutor to cross-examine the accused about it. The cross-examination by the prosecutor demonstrated just how significant had been the failure of counsel for the accused to challenge key parts of the Crown case. In addition, because of that failure, the Crown witnesses had been denied the opportunity to respond to the allegations subsequently made by the applicant in his evidence.

14 The trial Judge was clearly well alert to those problems. At the conclusion of the evidence, his Honour read to counsel a draft of the direction which he proposed to give to the jury concerning this matter. Counsel for the applicant did not object to the proposed direction.

15 In the brief direction he gave to the jury, the judge outlined the matters in respect of which defence counsel had failed to cross-examine Crown witnesses. His Honour told the jury that that failure was relevant for two reasons. First, the witnesses were not given the opportunity to respond to the allegations, and the jury had been deprived of the benefit of seeing and assessing their responses in cross-examination. With respect, that direction (or comment) was impeccable[3] and the absence of any criticism on appeal is unsurprising.

16 Secondly, his Honour stated, "... [s]uch a situation may - not necessarily must - affect your assessment of the weight and credibility of the accused's claim ... ". It is to that short passage that ground 1 is directed.

17 In some respects, the passage is ambiguous. On one reading, his Honour was telling the jury that, when they assessed the evidence of the particular Crown witness on the relevant matter, that assessment might be affected by the circumstance that the witness had not been challenged on that matter in cross-examination. If that was all his Honour meant, then the direction or comment by his Honour was correct, and accorded with the principles stated in cases such as Bulstrode v Trimble.[4]

18 Alternatively, the passage might be regarded as a direction or comment that the failure of defence counsel to cross-examine on the three matters identified by the judge reflected on the credibility of the evidence which the applicant gave on those matters. On this appeal, counsel for the applicant (who did not appear for him at the trial) contended that this is what was meant - and was conveyed to the jury - by that part of the charge. He submitted that such a comment or direction should have been "balanced" by the trial Judge pointing out that there were possible explanations for the omission to cross-examine the witnesses which might not reflect adversely on the credibility of the accused. Those potential explanations - such as oversight by counsel, a tactical decision by counsel, or the misunderstanding by counsel of his instructions - have been canvassed in a number of authorities: R v Birks;[5] R v Manunta.[6] Counsel submitted that the cross-examination by the prosecutor of the applicant, on the Browne v Dunn issue, made it necessary to give such a direction to the jury.

19 In this case, the failure of defence counsel to observe the rule of practice in Browne v Dunn related to three central factual issues. It was a most significant failure. We do not think any realistic explanation for the failure could have been given to the jury. For his Honour to have advanced any explanation of the kind referred to in the authorities would have served only to highlight and underline, to the detriment of the applicant, the failure of counsel to cross-examine on the issues. Such a course would not have assisted, but rather would have prejudiced, the applicant.

20 In the circumstances, the trial Judge formulated what we consider was a most restrained and moderate direction (or comment). His Honour did his best to balance two competing considerations - the first being that, in fairness to the Crown, the jury should understand the relevance of the failure of defence counsel to put significant allegations in cross-examination, the second that the failure not be unduly highlighted to the disadvantage of the accused.

21 The trial Judge was particularly experienced in the conduct of criminal trials. His Honour was well placed to gauge, in the atmosphere of the trial and the issues which had arisen, the course which best accorded fairness to both parties. Minds might differ as to how best to tackle the problem with which his Honour was confronted, but for the reasons which we have expressed, we do not consider that his Honour erred in giving the directions in the form in which he did.

22 Read as a whole, his Honour's charge was clear, precise and well balanced. It was obviously prepared with a great deal of care. It is clear, in particular, that the comment on the Browne v Dunn issue had been the subject of careful consideration.

23 Counsel for the applicant acknowledged the difficulties faced by the trial Judge but maintained that his Honour's direction did not cure the problem which had arisen. He submitted that, because the prosecutor had cross-examined the applicant quite extensively on the evidence which he had given, but which had not been put to the Crown witnesses, the trial Judge ought to have directed the jury as to possible explanations of defence counsel's failure to put the salient allegations to witnesses in cross-examination.

24 This submission highlights the real basis upon which ground 1 should succeed. Once the applicant gave evidence on key issues which had not been the subject of cross-examination of Crown witnesses, the problem was simply incurable. No direction could have cured the miscarriage of justice which flowed from the failure of the applicant's counsel to cross-examine on those matters, so adverse was its inevitable impact on the jury's view of the accused. We appreciate that we have, in large measure, recast ground 1, but it is in the interests of justice that we do so. For those reasons we would allow the applicant's appeal.**

**25 As noted earlier, the prosecutor asked the accused whether J, K, his brother, M, and his sister-in-law, A, had all been lying in their evidence. It was submitted on behalf of the applicant that, in light of authorities such as R v Buckley,[7] R v Bajic[8] and R v Leak,[9] such a line of cross-examination was impermissible and, if embarked upon by a prosecutor, would ordinarily mean that there had been a miscarriage of justice. That submission was accepted by the Crown, although in oral submissions before us, counsel for the Crown argued that the principle relied on was subject to exceptions.

26 In Palmer v R,[10] the prosecutor cross-examined the accused, who had been charged with sexual offences against a 14 year old child, as to whether he could suggest a reason why the complainant should invent the allegations against him. The High Court held that that cross-examination was impermissible, because it required the applicant to speculate as to the state of mind of the complainant. It was further held that that cross-examination had such a prejudicial effect on the trial of the accused that it had resulted in a miscarriage of justice. Authorities such as Buckley[11] have extended that principle such that, generally, it is impermissible for a prosecutor to ask an accused in cross-examination whether witnesses called on behalf of the Crown had told deliberate lies.[12]

27 There are two main reasons why a prosecutor should not ask an accused whether a complainant has lied in giving evidence on oath. First, such questions invite speculation as to the mental processes of the witness, and tend therefore to deflect the jury from a proper assessment of the Crown witnesses and of the accused, in accordance with the burden of proof borne by the Crown.[13] Secondly, such cross-examination places the accused at an unfair disadvantage, because it forces him into making a serious allegation against a Crown witness. Thus it is seen as an oppressive form of cross-examination. In R v Foley,[14] the Queensland Court of Appeal described such cross-examination as:**

"... unfair, because it forces the honest witness into a recrimination and seeks to rely upon the natural reluctance of a person to defame another. It is also a form of bullying, using unfair means to persuade a person to retract his or her evidence."[15]

**28 The principle is subject to at least one exception, namely, where the accused in his or her evidence in chief has specifically alleged that a Crown witness has been lying.[16] In light of the concession made by the Crown in respect of grounds 1 and 2, however, there is no occasion to consider whether there are any other exceptions which might have applied in this case.

29 We make two observations about the cross-examination in this case. First, although the applicant's counsel did not expressly put to any of the four witnesses that they were lying in their evidence, when the two complainants were recalled for further cross-examination it was put to them that the applicant denied their allegations. Further, as noted earlier, the evidence given by the applicant was such as to clearly repudiate the evidence of all four prosecution witnesses.

30 The authorities to which we have referred make it clear that, while a prosecutor is entitled to ask an accused person, in cross-examination, whether a prosecution witness told the truth in his or her evidence, the prosecutor is not permitted to ask the accused if that witness was lying in his or her evidence.[17] In many cases, and in particular cases involving allegations of sexual impropriety which are not of recent origin, the possibility exists that a Crown witness is not telling the truth but not because he/she is deliberately lying. In such cases the rule, prohibiting the prosecutor from asking the accused whether those witnesses were lying, is of some significance.

31 In the present case, however, the evidence of the accused amounted to saying that the four key Crown witnesses were all telling deliberate lies. In evidence in chief he expressly alleged that the two complainants, J and K, had lied. In such circumstances, it is difficult to perceive any practical difference between the prosecutor being permitted to ask the accused whether the Crown witnesses were telling the truth, but not being permitted to ask him if those witnesses were lying.

32 The second observation is as follows. The questions which the prosecutor asked of the accused were not asked gratuitously, in order to oppress or intimidate him. Rather, when the prosecutor's cross-examination is considered as a whole, it is clear that those questions were the first step in a series of propositions which the prosecutor wished to put to the accused, relating to the failure of his counsel to put, in cross-examination of the Crown witnesses, the allegations which the accused had made in his evidence. Put simply, the thesis which was sought to be advanced in cross-examination was as follows: the accused alleged that the four Crown witnesses were lying; for some time, and at least before the committal proceedings, he was aware of those allegations made by the Crown witnesses; yet, when those witnesses gave their evidence, they were not challenged in cross-examination on critical aspects which the accused later sought to repudiate when he himself gave evidence.

33 These observations are not intended to convey the view that the line of cross-examination undertaken by the prosecutor was justified. That question was not the subject of any submissions before us, and we do not express any view on it. Rather, we have sought to demonstrate that the questioning which gave rise to ground 2 was in large measure the product of the failure of defence counsel to comply with the rule in Browne v Dunn. Given the concession made by the Crown, we uphold the second ground of appeal.

34 There is now a substantial body of authority which, as a general rule, makes it impermissible for a prosecutor to ask an accused, in cross-examination, whether a complainant, or other Crown witness, has lied. It is of the utmost importance that Crown prosecutors be alert to the need to adhere to that rule. Certainly, as a matter of prudence, if a Crown prosecutor considers that it may be necessary to seek to depart from that rule in exceptional circumstances, that matter should first be raised with the trial Judge in the absence of the jury. While such a course may not be practical given the need to raise the issue in the presence of the accused, nonetheless such a course would obviate the unfortunate consequences which might otherwise ensue, should a prosecutor embark on the line of cross-examination which, in general, is prohibited by the authorities to which we have referred.

35 For these reasons, we made orders granting the applicant leave to appeal against his convictions, allowing the appeal, quashing the convictions and setting aside the sentences, and directing that there be a new trial.

[2] MWJ v R [2005] HCA 74, [18], [41].

[3] See, eg, R v MacFie (No 2) [2004] VSCA 209; (2004) 11 VR 215, 231 [62] (Eames JA).