LEE v R - [2009] NSWCCA 259

New South Wales
Court of Criminal Appeal

CITATION: LEE v R [2009] NSWCCA 259

HEARING DATE(S): 14 September 2009

JUDGMENT DATE:
26 October 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 7; Grove J at 8

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Convictions for sexual offences - Evidence called by Crown from spouse of the appellant - Leave to cross examine - Ruling that evidence unfavourable giving rise to grant of leave not eroneous - Direction by trial judge - Absence of objection at trial - Comment on scope of rule 4 of Criminal Appeal Rules

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: R v Button & Griffen (2002) 129 A Crim R 242

PARTIES: Christopher Roy LEE - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/1346

COUNSEL: G D Wendler - Applicant
S Dowling - Respondent/Crown

SOLICITORS: Galloways - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/13463

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 7 August 2008

CCA 2007/1346

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
26 October 2009

Christopher Roy LEE v R

Judgment

1 SPIGELMAN CJ: I agree with Grove J. I wish to add one observation with respect to Ground 2.

2 No objection was taken at the trial to his Honour’s observations to the jury explaining why the Crown would cross-examine its own witness. The Crown did not, however, seek to rely on r 4 of the Criminal Appeal Rules with respect to Ground 2. In contrast it did rely on r 4 with respect to Ground 3.

3 The subject matter of Ground 3 was clearly an “omission to direct” within r 4. However, the observations which are the subject of Ground 2 were also “a direction” within that rule.

4 In the usual case directions to the jury are found in a discrete part of the proceedings referred to as the “summing-up”. However a “direction” may occur at any time. The word “direction” should not be narrowly construed. The word should be understood as encompassing any formal explanation by the judge to the jury as to the course of the trial. It should not be understood as limited to some kind of formal instruction to the jury as to how it should proceed.

5 If trial counsel, who strenuously objected to the Crown being granted leave to cross-examine, had seen any difficulty with his Honour’s observations in this respect it was a matter that could readily have been raised at the time and, if at all appropriate, readily resolved. The significance of r 4 for the proper administration of criminal justice in this State has frequently been emphasised. (See, for example, the series of authorities summarised by Heydon JA in R v Button & Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242 at [31]-[35].)

6 For the reasons given by Grove J I would, in any event,…

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 LEE v R

Details

AGLC: Lee v The Queen [2009] NSWCCA 259
Case: [2009] NSWCCA 259
Decision Date: 26 October 2009

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, involving the respondent, the Crown, appealing against the convictions of the appellant, Lee, for sexual offences against his wife. The appeal challenged the admissibility of evidence given by the wife and the trial judge's direction to the jury. The Crown sought leave to call the wife as a witness, which was granted. The appellant's counsel argued that the leave was granted erroneously as the evidence was not unfavourable, but this was rejected. The trial judge directed the jury that the wife's evidence was not to be disregarded solely because of her relationship with the appellant. The appellant's counsel did not object to this direction at trial, and the appeal centred on whether the direction was erroneous.

The primary legal issue was whether the trial judge's direction to the jury, without objection from the appellant's counsel, was erroneous. The court considered whether the direction could be challenged on appeal under rule 4 of the Criminal Appeal Rules. The court noted that the direction was given in response to the appellant's counsel's comments, and there was no objection at the time. The court examined the scope of rule 4, which allows for the court to consider an error even if no objection was made, provided the error is of a fundamental nature that could have affected the result of the trial.

The High Court held that the trial judge's direction was not erroneous. The court found that the direction was given in response to comments made by the appellant's counsel and that there was no objection at the time. The court considered the scope of rule 4 and concluded that the direction did not constitute a fundamental error that could have affected the result of the trial. The court further found that the evidence given by the wife was properly admitted, and the grant of leave to call her as a witness was not erroneous.

The appeal was dismissed, and the convictions were upheld. The court's decision clarified the scope of rule 4 of the Criminal Appeal Rules and affirmed the trial judge's direction to the jury. The court emphasised that the absence of an objection at trial did not prevent the court from considering the direction on appeal, provided the error was of a fundamental nature that could have affected the result of the trial.

Orders