Ryan Wilson (a pseudonym) v The King

by Gabriel Ng

Relevance

Ryan Wilson (a pseudonym) v The King [2023] VSCA 276 examined the level of detail needed to satisfy the principles from Browne v Dunn (1893) 6 R 67 (‘Browne v Dunn’), which require adverse matters be put to an accused during cross-examination.

The Court also considered the principle from Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’) states that ‘profound childhood deprivation’ is a mitigating factor in sentencing.

Facts

A man was found guilty in the County Court of Victoria of one charge of rape and two counts of sexual assault perpetrated against his then-partner’s sister. He appealed his conviction on the ground that the learned trial Judge had failed to provide the jury with a ‘Browne v Dunn’ Direction – that is, a direction that the jury should take into account the fact the accused had not had the opportunity to respond to certain adverse matters, as the prosecution Counsel had not put these details to him in cross-examination. Specifically, the prosecution had not put the accused details such as that the complainant was struggling or resisting or that he was holding her wrists.

The appellant also appealed his sentence, being a total effective sentence of seven years’ imprisonment with a non-parole period of five years. The grounds for appeal were: first, that the learned trial judge denied the appellant procedural fairness by not advising that she did not accept the Bugmy principles applied and; second, that those same principles should have been applied in the appellant’s case, who was an ethnic Hazara from Afghanistan who had experienced violence and persecution at a young age.

Held

Conviction

In a unanimous judgment, Priest, Niall and Kaye JA examined the rule from Brown v Dunne, which requires that during cross examination, a witness should be given the opportunity to respond to matters adverse to their evidence, credit or character. The level of detail in which such matters must be put is the subject of ‘impression and interpretation’ (Queen v Morrow (2009) 26 VR 526, 539-40, Redlich JA). Less detail is required where evidence is being denied, whereas more detail is required to support a positive case, i.e. where an alternative scenario is being advanced. Also relevant is whether the party conducting cross examination bears the onus of proof. ([49]-(52))

The Court held that the prosecution had satisfied the requirements from Browne v Dunn. It was not necessary that every alleged detail be put as the accused’s account was fundamentally contradictory to the complainant’s, particularly in regards to consent. His awareness of the ‘diametrically opposed’ accounts meant he had the opportunity to respond, if he so wished. ([53]-[54])

Sentence

The Court held that the trial Judge had failed to afford procedural fairness by not advising that she did not accept the Bugmy principles applied ([79]). It then examined the Bugmy principle, which states that a childhood characterised by violence or hardship has such a profound impact that it reduces a person's moral culpability into adulthood. This should be taken into account as a mitigating factor in sentencing ([90]-[92]). The Court affirmed that the Bugmy principles applied to the people from refugee backgrounds who had experienced violence and persecution, such as the appellant. His was thus re-sentence to a total effective sentence of six years’ imprisonment with a non-parole period of four years’.