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Lyndon v R

Lyndon v R

Case [2014] NSWCCA 112 24 June 2014

Appeal

Conduct of Prosecution

Causation

Negligence

Unconscionable Conduct

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lyndon v R [2014] NSWCCA 112
Hearing dates: 14 March 2014
Decision date: 24 June 2014
Before: Basten JA at [1];
Button J at [72];
RS Hulme AJ at [73]
Decision:
(1) Refuse leave to appeal with respect to ground 3.
(2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of grounds 1, 4 and 5.
(3) Dismiss the appeal.

Catchwords:
CRIMINAL LAW - appeal - conduct of prosecution - closing address to jury - general comments made about the credibility of children - whether prosecutor improperly suggested having a particular expertise with respect to the testimony of children - whether prosecutor improperly invited the jury to rely on a lie told by accused - prejudicial effect considered - failure by defence to object at trial - whether audio recording of address should be tendered

CRIMINAL LAW - appeal - whether defence counsel incompetent - failure to lead evidence - complainants said accused was kneeling during sexual intercourse - failure to call medical evidence regarding accused's difficulties kneeling - whether trial miscarried

CRIMINAL LAW - appeal - unreasonableness of verdicts - separate counts of indecent assault against two children - one count of sexual intercourse with a child - accused found guilty of one charge of indecent assault and charge of sexual intercourse with same child - acquittal on other charges - unreasonableness alleged on lack of consistency between verdicts and unreliability of evidence - possibility of concoction

EVIDENCE - tendency - direction to jury - whether judge should have warned against tendency reasoning - use of acts alleged against one child as potential tendency evidence for acts against the other child - prosecution not seeking to rely on tendency - direction that each offence should be considered separately - no objection raised at trial about failure to give warning
EVIDENCE - appeal - ground alleged failure by defence counsel to call medical evidence at trial - test of miscarriage objective - counsel's reasons for conduct of trial irrelevant - evidence from counsel inadmissible
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), s 61M
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 97, 165A
Cases Cited: Edwards v The Queen [1993] HCA 63; 178 CLR 193
Jiang v R [2010] NSWCCA 277
KNP v Regina [2006] NSWCCA 213; (2006) 67 NSWLR 227
KRM v The Queen [2001] HCA 11; 206 CLR 221
MFA v The Queen [2002] HCA 53; 213 CLR 606
R v Livermore [2006] NSWCCA 334; 67 NSWLR 659
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Toalepai v R [2009] NSWCCA 270
Versi v R [2013] NSWCCA 206
Texts Cited: Anderson, Williams and Clegg, The New Law of Evidence (LexisNexis, 2nd ed, 2009) at 361
Category: Principal judgment
Parties: Christopher Sean Lyndon (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr H…

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 Lyndon v R

Details

AGLC: Lyndon v R [2014] NSWCCA 112
Case: [2014] NSWCCA 112
Decision Date: 24 June 2014

CaseChat Overview and Summary

The case of Lyndon v R involved an appeal against the conduct of the prosecution and the competency of the defence counsel during a criminal trial. The appellant was found guilty of one count of indecent assault and one count of sexual intercourse with a child, but was acquitted on other related charges. The issues before the court included whether the prosecutor's comments during the closing address were prejudicial, whether the defence counsel was incompetent for failing to lead certain evidence, and whether the verdicts were unreasonable given the inconsistency in the jury's findings. Additionally, the court considered whether the trial judge should have warned the jury against using tendency reasoning regarding the separate counts of indecent assault and whether the defence counsel should have called medical evidence to support the appellant's claimed difficulties in kneeling during the alleged sexual acts.

The court found that the prosecutor's comments about the credibility of children were not sufficiently prejudicial to warrant a new trial, despite the potential for them to be seen as suggesting a particular expertise in the matter. The court also held that the defence counsel's failure to call medical evidence did not amount to incompetence and did not objectively result in a miscarriage of justice. The court concluded that the verdicts, while inconsistent, were not unreasonable given the evidence presented. Regarding the direction to the jury, the court found that no warning was necessary as the prosecution was not relying on tendency evidence, and the judge had already directed the jury to consider each offence separately.

The court ultimately dismissed the appeal, finding no grounds for overturning the original verdicts. The reasoning of the court was grounded in the principles of legal procedure and the objective test for a miscarriage of justice. The court emphasised that the failure of defence counsel to object to the prosecutor's comments or to call certain evidence did not automatically result in a miscarriage of justice, and the verdicts, while inconsistent, did not reach the threshold of unreasonableness required for an appeal to be successful. The court also noted that the defence counsel's reasons for not calling medical evidence were irrelevant to the objective test for a miscarriage of justice.

Orders