R v Birks (1990) 19 NSWLR 677

Facts: Birks (Defendant; D) was convicted of 18 offences including maliciously inflicting bodily harm with intent and sex without consent. Prosecution (Pr) argued that D broke into a farmhouse and threatened the complainant and children with violence. D’s counsel failed to cross-examine the complainant on two aspects: that there had been no anal intercourse; and that facial injuries were a result of non-intentional conduct (i.e. a torch had fallen on her). D gave evidence that oral and vaginal intercourse were consensual, that there had been no anal intercourse, and that facial injuries were caused by the torch. Pr cross-examined D to the effect that he was lying and had recently invented his evidence because the complainant was not cross-examined. And, he was cross-examined on his instructions to his lawyers. The judge invited the jury to take the Pr’s cross-examination (CE) into account when assessing D’s credibility (i.e. the jury could draw an adverse inference from the failure of D to cross-examine the complainant on the contradicted matters). This direction was given to remedy breach of the rule in Browne v Dunn. After the jury retired, counsel sought advice and told the judge that the failure to cross-examine was a result of his inexperience. The judge refused to discharge the jury. D appealed his guilty conviction.

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