R v BDX

In this case the accused was convicted by a jury of a child sex offence. The complainant, a child, withdrew the allegations shortly after the trial. Justice Davis (with whom McMurdo JA agreed; and with whom Dalton JA gave separate but concurring reasons) held that, as a result of the new evidence of the events following the trial, no credible prosecution could be maintained against the accused (per Davis J with whom McMurdo JA agreed); and/or no reasonable jury could safely convict the accused in a new trial if ordered (per Dalton JA with whom McMurdo also agreed). The Court also considered the application of the rule in Browne v Dunn in the circumstances of this trial and the approach of the trial judge to remedying a breach of the rule. The appeal was allowed, the conviction was set aside, and a verdict of acquittal was entered.

McMurdo and Dalton JJA and Davis J

14 March 2023

Background

The accused was convicted after a jury trial of indecently dealing with a child under 16 with circumstances of aggravation that the child was under 12 and was under care (domestic violence offence) contrary to s 210(1)(a), (3) and (4) Criminal Code 1899 sch 1 (the “Criminal Code”) and s 12A Penalties and Sentences Act 1992. [12]. The accused was in a domestic relationship with the mother of the complainant. [16]. The complainant told his father that the accused had sexually assaulted him on one occasion (the “shower incident”). [17]. When interviewed by police, the complainant gave an account about a further occasion (the “laundry door incident”). [18]. When the evidence of the complainant was pre-recorded, he only gave evidence about the shower incident. [19]. The complainant’s father gave preliminary complaint evidence. [21]. The accused gave evidence denying the allegation. [22].

After the accused was convicted, the complainant told his mother that the allegation about the shower incident was untrue. [23]. The mother told the complainant to speak to his counsellor. [23]. After the complainant spoke with the counsellor, she told the mother that the complainant had told her “something” but she was not sure how to address it and needed to speak to a supervisor. [23]. After the counselling session, the complainant said: “Mum, I told her [the accused] didn’t hurt me”. [23]. The complainant told police that his father had told him to tell the police that the accused sexually assaulted him and that the allegation was untrue. [24]–[25]. The accused appealed against his conviction on two grounds: the new evidence showed that a miscarriage of justice had occurred; and the trial judge erred when directing the jury about the rule in Browne v Dunn. [26].

Whether the accused was entitled to a verdict of acquittal or a new trial

It was common ground that the new evidence about the events that occurred after the conviction of the accused meant that the conviction was unsafe and should be set aside. [28]. The controversy was the appropriate remedy: the prosecution sought a new trial and the accused sought that a verdict of acquittal be entered. [28]. Justice Davis (with whom McMurdo JA agreed; and with whom Dalton JA gave separate but concurring reasons) held that a verdict of acquittal should be entered. [29], [43]–[49]. The complainant’s new version not only cast doubt over the only evidence of the commission of the alleged offence, but it also undermined the evidence of the only other prosecution witness, the complainant’s father. [47]. No credible case could be maintained by the prosecution in these circumstances. [49]. Justice Dalton went further making the following observation:

“In these circumstances [a] notional second jury, properly instructed, must have a reasonable doubt about the complaint which rested solely on the evidence of the complainant […] It simply would not be open to such a jury to be satisfied of the complainant’s reliability beyond reasonable doubt”. [10].

Whether the trial judge erred in directing the jury about the rule in Browne v Dunn

It was not necessary for this ground of appeal to be considered in light of the conclusion on the first ground of appeal, however, Davis J and Dalton JA made a number of helpful comments in obiter about the application of the rule of Browne v Dunn in this trial: see [11], [30]– [42]. Justice Davis (with whom McMurdo JA agreed; and with whom Dalton JA gave separate but concurring reasons) held that the trial judge misdirected the jury and this would have independently warranted a new trial. [11], [42]. The trial judge informed the jury that defence counsel had failed to put to the complainant that the allegations were untrue. [34]. The trial judge explained the rule in Browne v Dunn to the jury but invited them to “proceed on the basis that his answer to that question would have been that he did not agree with the suggestion that his evidence was untrue”. [34].

Justice Davis observed that a failure to observe the rule in Browne v Dunn “may require remedial action”. [36]. Remedial action can include: recalling the witness for further cross-examination; directing the jury in the terms suggested in R v Foley [2000] 1 Qd R 290 (a “Foley direction”); or taking no action at all. [37]–[38]. It was an error to instruct the jury to assume a fact not in evidence. [39]. Whilst it was open to give a Foley direction, the best course may have been to take no action in circumstances where there could have been no doubt in the minds of the jury that the appellant denied the allegations having given sworn evidence to that effect in his own defence. [40]. Justice Dalton observed that the direction would have had the effect of bolstering the complainant’s credit in the eyes of the jury, with a corresponding detriment to the credit of the accused. [11].

Disposition

In the result, the appeal was allowed, the conviction was set aside, and a verdict of acquittal was entered. [1], [2], [14].

D Kerr