Prosecutor breaches duty

Victorian prosecutor Carolyn Burnside birched by the Court of Appeal ... Failure to disclose evidence helpful to the defence ... Miscarriage of justice ... Defence team alerted to earlier case by DPP just before appeal hearing ... Tom Westbrook investigates

The Victorian Court of Appeal has delivered a stinging criticism of Melbourne barrister and prosecutor Carolyn Burnside and quashed a conviction that she secured in October 2009.

Burnside & HullsMs Burnside is also the wife of the immediate past Victorian attorney general Rob (F#@%&#) Hulls.

In AJ v The Queen, Justices Mark Weinberg, Bernard Bongiorno and Peter Buchanan said that Ms Burnside had committed a "significant and most regrettable breach of her duty as a prosecutor".

The Court found that her failure to disclose potentially exculpatory information to defence counsel "led to a miscarriage of justice".

AJ had been sentenced to 20 months imprisonment after being found guilty of committing an indecent act with or in the presence of a child under the age of 16.

The child was his daughter, XN. At the same trial he was acquitted of committing an act of sexual penetration with XN.

AJ was convicted on the evidence given by XN and it was information relating to XN's credibility that Ms Burnside failed to disclose.

Just four days before the appeal was to be heard defence counsel learned that XN had been the complainant in another sex case, also prosecuted by Ms Burnside.

In 2008 XN's neighbour, Mark Raymond Pollard, was convicted of the rape, attempted rape and sexual penetration of XN.

Central to that case were a large number of pornographic and sexually explicit text messages sent by XN to Pollard. XN denied sending all but one of them.

However, little store was placed in her denial and in the transcript of the Pollard trial Ms Burnside said:

"This is a case in which the Crown agrees that she sent, that is the complainant sent, pornography to [Pollard's] phone as well so that's not really an issue."

The appeal judges said that this left XN's credibility "at best, suspect". 

They continued:

"The prosecutor's failure to alert trial counsel in AJ's trial to the circumstances of Pollard's trial and, in particular, to the fact that she (the prosecutor) did not believe XN's denials of having sent a very large number of text messages to Pollard, constituted a significant and most regrettable breach of her duty as a prosecutor.

[snip]

Had the Pollard file been disclosed to the defence lawyers prior to the present applicant's trial it would have yielded information which could potentially have been of forensic use to the applicant's counsel. At the very least XN could have been cross-examined as to the sending of text messages to Pollard and as to her earlier denials of having done so. Such cross-examination may have produced an admission, or may have permitted further exploration of the complainant's credit. This could well have been to the benefit of the current applicant."

The appeal judges cited R v K, a decision in which King CJ said:

"There is a clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware... This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed... The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness." 

They went on to cite Kirby J in Mallard v R:

"The prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused."

VicAppeals went onto say:

"The credibility of the complainant XN was central to the Crown case.  If the complainant's evidence as to the offences alleged against the applicant was doubted he was entitled to be acquitted. The Crown was in possession of information which was of such cogency that it satisfied its own prosecutor that the complainant had lied on oath in an earlier trial.  It did not disclose that information to the defence in this trial.  It ought to have done so" wrote the appeal judges."

It was a phone call from a solicitor at the Office of Public Prosecutions that alerted AJ's defence team to the Pollard case.

The ultimately successful appeal grounds, which were subsequently drawn, were the subject of an application to amend the applicant's grounds two days before the hearing.

The remainder of the appeal grounds were thrown out.

One of them was that the trial judge, Jane Campton, restricted cross-examination regarding a text message allegedly sent by XN.

The message, which XN denied sending to AJ's de facto wife, read:

"Can you tell Dad that I didn't mean for this to happen. As it never happened. Mum is making me do this.  Can you tell Dad I'm so sorry."

However, the CA found: 

"The trial judge did not exclude the contents of the text message from evidence by preventing its being adduced in cross-examination... At the point at which the witness denied sending it, defence counsel could have, had he wished to do so, proved the text message and its provenance. He could have then tendered it.  He did not do so."

The DPP is now considering whether AJ ought to be retried, given he has already served more than 18 months in prison.

Pollard is appealing his conviction.