The Victorian Court of Appeal has delivered a scathing rebuke to one of the state’s top barristers.
The appeal judges cited a “significant and most regrettable breach of her duty as a prosecutor” for failing to disclose information to defence lawyers that could have acquitted their client.
They found Carolyn Burnside, the prosecutor in the case of a man accused of an indecent act with his under-age daughter, caused a miscarriage of justice by failing to tell the defendant’s legal team that the same girl had lied on oath in a previous sex trial.
The information, which could have led to an acquittal, was belatedly passed last month by another lawyer within the Office of Public Prosecutions after the man had served nearly a year in jail. His conviction has now been quashed.
The girl, known in court transcripts as XN, accused her father, known as AJ, of sexually assaulting and raping her. The man’s defence was that the girl fabricated the claims on the urgings of her mother. As part of pre-trial argument, the man cited a text message sent by his daughter in which she said: “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.”
When asked about the message in voir dire, XN denied sending it. The messages were never produced and the evidence not put to the jury, which convicted AJ after a four-day trial in the Victorian County Court.
The Court of Appeal found no fault with the trial judge but Supreme Court judges Mark Weinberg, Bernard Bongiorno and Peter Buchanan were highly critical of Ms Burnside, a prominent member of the Victorian bar and the wife of former Victorian attorney-general Rob Hulls.
Ms Burnside was also the prosecutor in a 2008 case in which XN falsely denied sending pornographic video messages of herself to another man she accused of raping her.
In the earlier case, the girl’s neighbour Mark Raymond Pollard was convicted of four counts of rape, despite Ms Burnside and defence counsel agreeing that XN had sent the messages and lied about it under oath. Pollard is seeking leave to appeal against his conviction.
“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,” the appeal judges found. “The credibility of the complainant XN was central to the crown case. If the complainant’s evidence . . . was doubted, he was entitled to be acquitted.
In November last year, after one mistrial and a second hung jury, AJ was acquitted of two counts of sexual penetration with a child and convicted of one count of committing an indecent act with a child and sentenced to 20 months’ jail.