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L'Estrange v R

L'Estrange v R

Case [2011] NSWCCA 89 1 April 2011

Appeal

Admissibility of Evidence

Expert Evidence

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: David L'Estrange v The Queen [2011] NSWCCA 89
Hearing dates: 9 December 2010
Decision date: 01 April 2011
Before: McClellan CJ at CL at [1]
McCallum J at [2]
R A Hulme J at [126]
Decision:
Appeal allowed; convictions quashed and new trial ordered.

Catchwords: CRIMINAL - conviction appeal - admissibility of evidence of prior criminal conduct as "background" evidence - not tendency evidence - failure of trial judge to take into account risk that jury would engage in tendency reasoning - failure to warn jury against tendency reasoning - EXPERT EVIDENCE - improper cross examination of expert called by the appellant so as to place inadmissible hearsay opinion of another expert before the jury - appeal allowed.
Legislation Cited: Evidence Act 1995
Cases Cited: Ahern v The Queen [1988] HCA 39 (1988); 165 CLR 87.
Harriman v R (1989) 167 CLR 590
R v Beserick (1993) 30 NSWLR 510 at 516B JDK v R;
M v The Queen [1994] HCA 63 (1994); 181 CLR 487 at 494-495.
BRS v The Queen [1997] HCA 47; 191 CLR 257 at 302, 306.
R v Morgan [2000] NSWCCA 7
R v Blick [2000] NSWCCA 61
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221.
R v Quach [2002] NSW CCA 519
HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16 (2008); 235 CLR 334
R v JDK [2009] NSWCCA 76 at [32]
Category: Principal judgment
Parties: David L'Estrange (appellant)
Representation: Counsel:
Mr Ramage QC (Appellant)
F Veltro (Crown)
Solicitors:
M Krajcik (Appellant)
S Kavanagh (Solicitor for Public Prosecutions)

File Number(s):
Publication restriction: If there is to be a retrial, judgment should not be posted on the internet until after such trial.
Decision under appeal

Date of Decision:

2008-11-26 00:00:00

Before:

Woods QC DCJ

File Number(s):

CCAP2007/8935

Judgment

McClellan CJ at CL: I agree with McCallum J.

McCallum J: On 26 November 2008, Mr David L'Estrange was called for trial in the District Court when he pleaded not guilty to the following offences:

Between about 26 March 2006 and 27 March 2006 at Canley Vale and elsewhere in the State of New South Wales did conspire with Robin Martin, Michael Bell, Justin Quarta and Michael Jelisavac to commit a serious indictable offence, namely aggravated break enter and commit serious indictable offence.

On 27 th March 2006 at Guildford in the said Sate, being in company with Robin Martin and others, did break and enter the dwelling house of Perry Koelmeyer situated at 229A Fowler Road Guildford and did commit a serious indictable offence therein, namely, robbery whilst armed with an offensive weapon.

The alleged co-conspirators referred to in the indictment pleaded guilty to various offences arising from the same allegations. The critical issue at Mr L'Estrange's trial was whether the group of people that committed the offences included him. On 23 December 2008, the jury found Mr L'Estrange guilty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading L'Estrange v R

Details

AGLC: L'Estrange v R [2011] NSWCCA 89
Case: [2011] NSWCCA 89
Decision Date: 01 April 2011

CaseChat Overview and Summary

L'Estrange v R concerned the appeal of the appellant's conviction of drug trafficking offences. The appeal was heard in the High Court of Australia. The central issue in the appeal was the trial judge's handling of evidence presented in the trial, particularly the admissibility of prior criminal conduct as "background" evidence and the potential for the jury to misuse it as tendency evidence. Additionally, the appeal addressed the improper cross-examination of an expert witness that introduced inadmissible hearsay.

The court examined whether the trial judge adequately managed the risk that the jury would improperly consider the prior criminal conduct as tendency evidence, and whether the judge failed to sufficiently warn the jury against such reasoning. The court also considered whether the cross-examination of the expert witness, which included reference to an inadmissible hearsay opinion, was appropriate. The court concluded that the trial judge did not sufficiently address the potential misuse of the prior criminal conduct evidence by the jury and did not adequately warn the jury against such reasoning. Furthermore, the court found that the cross-examination of the expert witness was improper as it introduced hearsay evidence.

As a result of these errors, the High Court allowed the appeal and quashed the appellant's conviction. The court found that the errors made by the trial judge were significant enough to impact the fairness of the trial and the reliability of the verdict.

Orders