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Court of Criminal Appeal 19 August 2010

Khamis v Regina

[2010] NSWCCA 179

Also reported as (2010) 203 A Crim R 121
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE RULE IN BROWNE V DUNN

Citation: Khamis v Regina [2010] NSWCCA 179
Court: New South Wales Court of Criminal Appeal
Date: 19 August 2010
Judge(s): Campbell JA, Simpson J, Whealy J

Background

The appellant was convicted by a District Court jury of sexual intercourse without consent and sentenced to four years and six months imprisonment. The complainant and her family were of Sudanese origin, and the appellant had become a friend of the family through community connections. He had expressed an interest in marrying the complainant to her older brother, Kamal.

The central factual dispute at trial concerned events in the early hours of 28 October 2007. The complainant alleged the appellant entered her bedroom and sexually assaulted her while she slept. The appellant's account involved consensual intimacy, and he sought to give evidence about a subsequent conversation between the complainant, Kamal, and himself that bore directly on the credibility of all principal witnesses.

At trial, when the appellant attempted to give this evidence, the prosecution objected on the basis that the conversation had not been put to the complainant or her family members during cross-examination. The trial judge upheld the objection and excluded the evidence, relying on the rule in Browne v Dunn. The appellant appealed on the ground that this exclusion constituted legal error and caused a miscarriage of justice.

  • Whether the trial judge erred in law by excluding the appellant's evidence as a remedy for the breach of the rule in Browne v Dunn
  • Whether exclusion of evidence is an appropriate or available remedy in a criminal trial where that rule is breached
  • Whether alternative remedies under the Evidence Act 1995 (NSW), including sections 46, 135, and 192, should have been considered before resorting to exclusion

Decision

The Court of Criminal Appeal unanimously found that the trial judge had erred in law. Whealy J, with whom Campbell JA and Simpson J agreed, held that exclusion of evidence in a criminal trial for breach of the rule in Browne v Dunn is a remedy of last resort. Other mechanisms were available, and the trial judge neither considered nor applied them.

The rule in Browne v Dunn, originating from a civil defamation case, requires a party to put to a witness any evidence that contradicts or challenges that witness's account. The Court confirmed the rule remains applicable in criminal proceedings notwithstanding the Evidence Act 1995 (NSW). However, the Court emphasised that the appropriate remedy for a breach must be tailored to the circumstances of the individual case, particularly where the accused is the party seeking to give the evidence.

In this case, recalling the relevant witnesses so they could be cross-examined on the disputed conversation would have been a proportionate remedy. The Court noted that sections 135 and 192 of the Evidence Act provided ample scope to address any resulting unfairness. The excluded evidence went directly to the credibility of the complainant and her family, and its removal deprived the appellant of a substantial part of his defence.

The Court also noted that the already shaky state of the appellant's credibility arising from inconsistencies with his police interview made it more, not less, important that the jury be able to assess the critical evidence. Excluding it produced a clear miscarriage of justice, warranting a new trial.

Orders Made

  • Appeal allowed
  • Conviction quashed and sentence set aside
  • New trial ordered

Key Takeaways

  • Exclusion of an accused's evidence is generally a remedy of last resort in a criminal trial where the rule in Browne v Dunn has been breached, and courts should first consider less drastic alternatives.
  • The rule in Browne v Dunn survives the enactment of the Evidence Act 1995 (NSW) and continues to apply in criminal proceedings.
  • Where a breach occurs, the appropriate remedy must be calibrated to the specific circumstances of the case, including whether the trial is civil or criminal, whether a jury is present, and the nature of the evidence in question.
  • Recalling witnesses to allow cross-examination on a disputed matter, rather than excluding the evidence altogether, can be a proportionate remedy available under sections 46, 135, and 192 of the Evidence Act 1995 (NSW).
  • Preventing an accused from putting a material part of his or her case before the jury can constitute a miscarriage of justice, regardless of other credibility difficulties the accused may face.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 61
- Evidence Act 1995 (NSW), ss 46, 135, 192

Cases
- Browne v Dunn (1893) 6 R 67
- Adamson v Ede [2009] NSWCA 379
- Allied Pastoral Holdings Pty Ltd v FCT (1983) 1 NSWLR 1
- Archer v Richard Crookes Construction Pty Ltd (1997) 15 NSWCCR 297
- Heaton v Luczka (NSWCA, 3 March 1998, unreported)
- MWJ v The Queen [2005] HCA 74
- Payless Superbarn v O'Gara (1990) 19 NSWLR 556
- R v Birks (1990) 19 NSWLR 677
- R v Burns (1999) 107 A Crim R 330
- R v Liristis (2004) 146 A Crim R 547
- R v Zorad (1990) 19 NSWLR 91
- RWB v R; R v RWB [2010] NSWCCA 147
- West v Mead [2003] NSWSC 161