CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse with child under 10 years – inciting an act of indecency by person under 16 years – assault with act of indecency on person under 10 years
CRIMINAL LAW – appeal against conviction – procedure – directions to jury – definition of “beyond reasonable doubt” – circumstances permitting expansion of “beyond reasonable doubt” direction do not arise – no miscarriage of justice – submission to jury by Crown prosecutor – Browne v Dunn – submission adopted by trial judge – caution should be exercised in directions to jury concerning failure of accused’s counsel to comply with rule in Browne v Dunn – practical effect of direction – no miscarriage of justice
CRIMINAL LAW – procedure – r 4 Criminal Appeal Rules – directions the subject of the grounds of appeal not objected to at trial – grounds ought to be determined on their merits – grounds of appeal do not involve “question of law alone” – leave required – s 5(1)(b) Criminal Appeal Act – Rasic v R – leave granted – application of proviso – s 6 Criminal Appeal Act – assessment of evidence in accordance with Weiss v R – no substantial miscarriage of justice in conviction of appellant – errors established did not impact upon correct verdict – appeal against conviction dismissed
CRIMINAL LAW – Crown appeal – error in failing to impose sentences in accordance with Pearce v The Queen – sentencing under past sentencing patterns – care must be taken not to evaluate sentences by reference to current expectations – some sentences imposed failed to reflect criminality and objective gravity of offences – error in taking into account circumstances of hardship in appellant’s custody – failure to accumulate – aggregate sentence also manifestly inadequate – sentences quashed, appellant re-sentenced
91 The complaint derives from the ancient rule in Browne v Dunn (1893) 6 R 67. Lord Herschell LC formulated the rule as:
“… where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit … 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 … 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 is not accepted.”
Lord Halsbury and Lord Morris spoke to similar effect.
92 Much has been written in more than a century since the rule was pronounced. A comprehensive analysis of the rule and its application in particular circumstances was undertaken by Hunt J (as he then was) in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation  1 NSWLR 1 (at 16). A similar exercise was undertaken by Legoe J in the Full Court of the Supreme Court of South Australia in R v Manunta (1989) 54 SASR 17 at 26-38. The rule, particularly in its application to criminal trials, was examined by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 686-692. Finally (finally for present purposes – I do not suggest this is an exhaustive catalogue of the attention paid to Browne v Dunn), Sheller JA considered the rule, again, in relation to a criminal trial, in R v Abdallah  NSWCCA 506; 127 A Crim 46.
93 It is commonly accepted that the rule is a rule of practice based upon the goal of achieving fairness in the conduct of litigation.
94 In Manunta, there were three separate (but related) issues on which it was said counsel for the defence had failed to cross-examine prosecution witnesses. The trial judge outlined, in simple terms, the Browne v Dunn rule, and explained its purpose. He told the jury that it was for them to decide the consequence of the failure to cross-examine on those issues. He told the jury they were entitled to ask themselves could those be:
“… matters of recent invention concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving to the police officers the opportunity to contradict those propositions?”
King CJ, with whom Bollen J agreed, held that each point was legitimately open for the consideration of the jury.
95 However, he added some cautionary words. He expressed concern about the prominence given to those matters in the course of summing up, while noting that it was legitimate to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or witnesses subsequently depose. But he added:
“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. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might 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. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial.” (pp 23-24)
96 In the particular circumstances of that case, his Honour was of the view that the matters had little weight, were explained to the jury quite fairly, and that no error had been demonstrated. Legoe J, who gave separate reasons, agreed that no error had been demonstrated.
97 Birks also involved the conduct of a criminal trial of serious offences. The inexperienced counsel representing the accused failed to cross-examine the complainant with respect to certain matters of considerable significance. The accused gave evidence and was vigorously cross-examined. It was suggested that, because the complainant had not been cross-examined on those matters, the evidence he subsequently gave about those matters was fabricated. Considerable emphasis was placed upon the failure to cross-examine, both in the address of the Crown prosecutor, and in the summing up of the judge.
98 Gleeson CJ adopted the views of King CJ in Manunta. In the circumstances of Birks, his Honour held that:
“… the issue was pursued by the Crown Prosecutor, and taken up by the learned judge, on the subject of the credibility of the [accused’s] evidence, in a manner which was inconsistent with the need for caution stressed by King CJ …” (p 692)
99 Abdallah was yet another case in which the rule was invoked in the context of criminal proceedings. In that case a highly experienced Queen’s Counsel had failed, in re-examination, to address an apparent inconsistency between what, in opening to the jury, he said he anticipated the evidence would be, and what was said by his client in cross-examination. The Crown put some emphasis upon this in final address to the jury, and that also was taken up by the trial judge, who repeated the Crown submission that what counsel expected the accused to say and what the accused did in fact say was not due to any incompetence on the part of Queen’s Counsel:
“… but to the fact that the accused could not get his story straight in relation to his knowledge of, or his involvement with …”
the subject matter of the proceedings.
100 Sheller JA, having referred to Browne v Dunn, Birks, and Manunta, said:
“As a practical matter, I do not think that this Court should assume that a barrister even of [Queen’s Counsel’s] experience could not make such a mistake. Experience does not, unfortunately, preclude error. More importantly, as was noted above, this Court is not primarily concerned with the actual cause of the inconsistency. Even if the chance of the inconsistency being due to an error or misunderstanding on the part of counsel for the appellant at trial was small, this should none the less have been suggested as a possibility to the jury. The comment of the trial Judge here, though, allowed for no such possibility. The trial Judge’s statement that ‘you might expect counsel or certainly competent Queen’s counsel, to open the case on what he expected the accused to say’ is significant. This statement was both factually questionable, since even eminent and experienced counsel on occasion make mistakes, and more importantly, inappropriate given the caution recommended in approaching this subject in Birks and Manunta. The emphasis given to [Queen’s Counsel’s] competence could only have served to reinforce to the jury that the only explanation for the inconsistency was that the accused had changed his story.” (italics in original, )
101 These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused’s counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw.