AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 25 February 1999

Regina v Dennis

[1999] NSWCCA 23

Assault & violenceTheft & property

Citation: Regina v Dennis [1999] NSWCCA 23
Court: New South Wales Court of Criminal Appeal
Date: 25 February 1999
Judges: Spigelman CJ, Wood CJ at CL, McInerney J

Background

The appellant was tried in the Newcastle District Court on a charge of robbery with corporal violence under s 95(1) of the Crimes Act 1900. The Crown alleged that he had assaulted a man in the toilets of a Waratah Leagues Club, demanded his wallet, and taken $20 from it. A club employee witnessed the appellant holding the victim's wallet and looking through it, providing key corroboration of the Crown's case.

At the conclusion of the Crown case, an additional charge of assault with intent to rob with corporal violence was added. The jury ultimately acquitted the appellant of the original robbery charge but convicted him on the additional charge.

The appellant challenged his conviction on two principal grounds: that the Crown Prosecutor's cross-examination had caused a miscarriage of justice, and that the trial judge had erred in applying the rule in Browne v Dunn.

  • Whether it was permissible for the Crown Prosecutor to cross-examine the accused by pressing him to characterise other witnesses, including the victim and a club employee, as liars.
  • Whether the trial judge erred in invoking the rule in Browne v Dunn in the circumstances of the case.
  • Whether any error was cured by the proviso (that is, whether the conviction should stand despite the irregularity because no substantial miscarriage of justice occurred).

Decision

The Court found that the Crown Prosecutor's cross-examination was impermissible. The prosecutor had repeatedly pressed the appellant to state that the victim and the club employee were lying, extracting answers such as "must be" when asked whether those witnesses were telling lies. The Court confirmed, consistent with earlier decisions including R v Rich, that inviting one witness to express an opinion on the truthfulness of another is an improper line of questioning, and that this is especially so when the witness being pressed is an accused person in a criminal trial.

The Court drew an analogy with the practice, condemned in both the Court of Criminal Appeal and the High Court, of cross-examining an accused in sexual assault cases about whether the complainant had a motive to fabricate. One identified purpose of this kind of cross-examination is to rattle a witness before the jury, regardless of the content of the answers given. Because the appellant's credibility was the central issue in the trial, the Court was satisfied that this cross-examination had materially affected the fairness of the proceeding.

On the Browne v Dunn issue, Spigelman CJ noted particular concern about the trial judge's use of counsel's conduct to draw adverse inferences for the jury. The Chief Justice observed that the timing of the alternative charge created a situation where defence counsel had a legitimate forensic reason not to challenge the club employee's account during cross-examination, making reliance on that omission as the basis for a Browne v Dunn direction especially problematic.

The Court declined to apply the proviso. Given that credibility was the decisive issue at trial and the cross-examination was likely to have had a real impact on the jury's assessment of the appellant, the Court was not satisfied that no substantial miscarriage of justice had occurred.

Orders Made

  • Appeal against conviction upheld.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Cross-examining an accused by pressing him to label other Crown witnesses as liars is an impermissible line of questioning, confirmed by the Court of Criminal Appeal as a well-established principle.
  • The impropriety is heightened where credibility is the central issue at trial, because such questioning risks influencing the jury against the accused regardless of the actual answers given.
  • A Browne v Dunn direction may be inappropriate where defence counsel had a legitimate forensic reason, arising from how the Crown's case developed, for not challenging a witness on a particular point during cross-examination.
  • Where improper cross-examination bears directly on the issue of credibility, courts are unlikely to apply the proviso to preserve a conviction.
  • The principle that a witness should not be asked to characterise another witness's evidence as dishonest applies with particular force when the witness being cross-examined is the accused.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) (robbery with corporal violence)

Cases:
- R v Rich (unreported, NSW Court of Criminal Appeal, 17 June 1998)
- R v Leak (1969) SASR 172
- R v Praturlon (unreported, NSW Court of Criminal Appeal, 29 November 1985)
- Palmer v The Queen (1998) 151 ACR 116
- Browne v Dunn (1893) 6 R 67 (the rule referenced in the judgment)