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.
Link: http://www.f4e.com.au/blog/2010/12/14/false-allegations-of-child-sexual-abuse-victoria/
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11 comments:
Criminally Innocent : How can you be exonerated of a crime that was never committed.
In April 1999, after questioning by police, John Arena confessed to having sexually abused Stephanie Arena, and he was subsequently sentenced to seven years in prison. The problem, according to John, his family – including Stephanie – and other supporters, is that he didn't molest Stephanie. Instead, he says, he falsely confessed to the crime after being pressured to do so by a police detective, and then took a plea deal to avoid a trial that he was told would land him in prison for decades. In fact, John says he confessed in part because he was told that if he did so the state would not prosecute his younger brother, Michael Arena, whom Stephanie had also accused. Yet Michael was also charged with the crime. Michael did not confess and instead took his case to trial; in 1999, he was found guilty and sentenced to 20 years behind bars.
For those who proclaim "NEVER ACCEPT A PLEA DEAL" pay attention.
7 years if you accept or 20 if you don't.
John was out in 3 years, Michael is still in prison.
Sorry, this is off topic, but I thought it would be of particular interest to the readers of this blog:
http://www.youtube.com/watch?v=LlFAd4YdQks&feature=player_embedded
The reaction of the woman at 2.15 is sickening- and typical.
For those who proclaim "NEVER ACCEPT A PLEA DEAL" pay attention.
7 years if you accept or 20 if you don't.
Long and short, this is the greatest injustice. To be forced to accept a plea bargain when you are innocent.
Cops are allowed to lie to you. They are not committing any crime when they promise you the world and reneg on everything.
"The reaction of the woman at 2.15 is sickening- and typical."
Actually, I thought the COP'S reaction was sickening - and typical.
"I was raised not to touch a woman"
...so therefore a woman beating on a man is simply...amusing? Nothing to interfere with?
The gender that actually tried to halt it was...female.
Give the devil her due.
Christopher,
I removed your post. Once again, this site doesn't promote pedophilia. I would ask you to please not post here anymore. We really don't need that kind of garbage.
Don't expect you to support pedosexuality. I do expect you to allow people to debate the subject in question, as the Fourth Amendment to the Constitution of the United States allows.
Thanks ESB. Maybe mine should go too.
@Anonymous/Chris...
I live on the opposite side of the planet. Your Fourth Amendment has nothing to do with me.
Others here could assure you that debating "the subject" with me is something you'd best avoid anyway. You have neither the knowledge nor the intellect to carry it off.
Bye, bye.
Gwallan,
I did remove yours, and if Christopher/anon wants to debate you on Victorias laws, have at it.
Cops are allowed to lie to you. They are not committing any crime when they promise you the world and reneg on everything.
That goes for plea bargains, too.
They CAN reneg on those as promised, but YOU can't after you accepted.
"This is the Greatest Justice System In The World."
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