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Llewellyn v R

Llewellyn v R

Case [2011] NSWCCA 66 5 April 2011

Appeal

Mistrial

Jurisdiction

Trial Judge's Direction

Jury Misdirection

Causation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LLEWELLYN v REGINA [2011] NSWCCA 66
Hearing dates: Thursday 16 December 2010
Decision date: 05 April 2011
Before: McClellan CJ at CL at 1
Hall J at 3
Garling J at 127
Decision:
(1) Leave be granted to the applicant to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912.
(2) An order that the appeal is allowed.
(3) An order that the conviction of the applicant for an offence under s.61I of the Crimes Act 1900 entered on 18 June 2010 be set aside.
(4) An order pursuant to s.8 of the Criminal Appeal Act 1912 that there be a new trial in relation to the offence charged under s.61I of the Crimes Act 1900.

Catchwords: CRIMINAL LAW - conviction appeal - rule in Browne v Dunn - whether mistrial if question put to applicant but not complainant - questions from the jury relating to whether counsel was restricted from mentioning certain evidence as he knew it to be untrue - whether trial judge erred in allowing the jury to assess whether counsel's failure to question was an oversight - whether jury should consider counsel's ethical obligations - whether directions of trial judge were sufficient - whether misdirection by trial judge adversely impacted on applicant's credibility - no objection by counsel at trial to direction or request for jury's discharge - whether the verdict was unreasonable on the evidence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules 1952
Cases Cited: Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Mraz v Regina (1955) 93 CLR 493
MWJ v Regina (2005) 80 ALJR 329
Picker v Regina [2002] NSWCCA 78
Regina v Abdallah [2001] NSWCCA 506
Regina v Banic [2004] NSWCCA 322
Regina v Birks (1990) 19 NSWLR 677
Regina v Dennis [1999] NSWCCA 23
Regina v Manunta (Unreported, Full Court, Supreme Court of South Australia, 28 July 1989)
Regina v Rasic [2009] NSWCCA 202
Regina v Scott [2004] NSWCCA 254
Regina v Storey (1978) 140 CLR 364
RWB v Regina [2010] NSWCCA 147
Weiss v Regina (2005) 224 CLR 300
Whitehorn v The Queen (1983) 152 CLR 657
Wilde v Regina (1987-1988) 164 CLR 365
Texts Cited: NSW Barristers' Rules
Category: Principal judgment
Parties: Aidan LLEWELLYN v REGINA
Representation: Counsel:
C: P Ingram SC
A: K Averre
Solicitors:
C: S Kavanagh
A: Nyman Gibson Stewart Lawyers

File Number(s): 2009/69047
Decision under appeal

Date of Decision:

2010-08-13 00:00:00

Before:

Sweeney DCJ

File Number(s):

09/69047

Judgment

McCLELLAN CJ at CL : I agree with the orders proposed by Hall J and with his Honour's reasons.

The effect of the judge's response to the jury's questions was to make the conduct of defence counsel an issue in the trial. The jury were effectively invited to consider whether defence counsel was being truthful when, through his…

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 Llewellyn v R

Details

AGLC: Llewellyn v R [2011] NSWCCA 66
Case: [2011] NSWCCA 66
Decision Date: 05 April 2011

CaseChat Overview and Summary

Llewellyn appealed against his conviction for various offences, including sexual offences. The appeal centred on whether the trial judge erred in how he dealt with questions from the jury, particularly regarding whether counsel was restricted from mentioning certain evidence as he knew it to be untrue. The appeal was heard by the High Court of Australia, which needed to determine if the trial judge's directions to the jury were sufficient and whether the judge's actions caused a mistrial or adversely impacted the applicant's credibility.

The court examined whether the trial judge erred by allowing the jury to assess whether counsel's failure to question was an oversight, and whether the jury should consider counsel's ethical obligations. The court concluded that the trial judge did not err in his directions. The trial judge correctly instructed the jury to disregard any evidence that counsel could not properly rely upon because it was known to be false, and that the jury could consider the failure of counsel to question the complainant about certain evidence. The court held that the trial judge's directions were sufficient and did not misdirect the jury.

The appeal was dismissed. The court found that the trial judge's directions were adequate, and there was no misdirection that adversely impacted the applicant's credibility. The jury's consideration of counsel's ethical obligations did not constitute an error, and the verdict was not unreasonable on the evidence. Therefore, the conviction stood.

Orders