Nse v WA

[2020] WASCA 167

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Misdirection
5. › Direction on rule in Browne v Dunn
6. › Whether direction appropriate where evidence elicited by trial judge's own questioning
7. › Whether inference of recent invention available where no breach of rule
1. Criminal Law
2. › Trial
3. › Role of trial judge
4. › Questioning of witnesses by trial judge
5. › Whether cross-examination of accused by trial judge risks miscarriage of justice
1. Evidence
2. › Rule in Browne v Dunn
3. › Application in criminal trials
4. › Two limbs of the rule
5. › Whether rule breached where matter not raised by defence counsel but elicited by trial judge
6. › Directions to jury on non-compliance
1. Criminal Law
2. › Trial
3. › Directions to jury
4. › Evidence of deceased witness
5. › Whether witness could be compelled to give evidence in accordance with prior statement

Quick Take

Where evidence is elicited by a trial judge's own questioning of an accused, the rule in Browne v Dunn is not engaged by the failure of defence counsel to have put that matter to prosecution witnesses, and a direction inviting the jury to infer recent invention from such failure is a miscarriage of justice. A witness compelled by subpoena to attend court cannot be compelled to give evidence in accordance with a prior statement, and directing a jury otherwise is a misdirection.