Legal Research
Cases
Lysle v R

Lysle v R

Case [2012] NSWCCA 20 29 February 2012

Sexual Assault

Inconsistency of Verdicts

Rule in Browne v Dunn

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LYSLE v R [2012] NSWCCA 20
Hearing dates: 10 February 2012
Decision date: 29 February 2012
Before: Basten JA at [1]
RS Hulme J at [2]
Schmidt J at [52]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: Criminal law - sexual assault - inconsistency of verdicts - rule in Browne v Dunn
Legislation Cited: Evidence Act 1995
Cases Cited: R v Birks (1990) 19 NSWLR 677
Browne v Dunn (1893) 6 R 67
Dungay v R [2010] NSWCCA 82
Llewellyn v R [2011] NSWCCA 66
MFA v R (2002) 213 CLR 606
MWJ v R [2005] HCA 74; (2006) 80 ALJR 329
Picker v R [2002] NSWCCA 78
R v Abdallah [2001] NSWCCA 506; (2001) 127 A Crim R 46
R v Banic [2004] NSWCCA 322
R v Dennis [1999] NSWCCA 23
R v Scott [2004] NSWCCA 254
RWB v R [2010] NSWCCA 147
TK v R [2009] NSWCCA 151
Category: Principal judgment
Parties: LYSLE, John Francis
Regina
Representation: C: F Veltro
A: C Loukas
C: S Kavanagh
A: Legal Aid Commission

File Number(s): 2009/10889
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-07-21 00:00:00

Before:

Payne DCJ

File Number(s):

2009/10889

Judgment

BASTEN JA: I agree with RS Hulme J.

RS HULME J: In early 2010 the abovenamed Appellant stood trial on three charges. The first two were in identical terms, viz.:-

That between 1 February 1981 and 31 March 1981 he did assault a female then under the age of 16 years and at the time of the assault did commit an act of indecency upon her.

The third count differed only in that the end date of the period nominated was 31 August 1981. During the period covered by the charges, the complainant was eight.

The Appellant was convicted on the first two counts but acquitted on the third. There are two grounds of appeal, viz:-

1. The convictions were unreasonable and cannot be supported by the evidence, as in the particular and relevant circumstances those verdicts are inconsistent with the verdict returned in relation to the remaining count on the indictment. There is no reasonable basis for the inconsistency.

2. A miscarriage of justice occurred as a result of impermissible questions asked by the Crown Prosecutor.

Not in contest was that in early 1981 the complainant, her sister, brother and mother commenced to live in a caravan at the side of the house occupied by the Appellant and his wife. The complainant's mother was the Appellant's wife's sister. Sometime later the two sisters commenced going to play Bingo on Monday nights on a regular basis. According to the complainant and her mother, but not the Appellant and his wife, the complainant and her siblings were left in the caravan, in bed, before the two women went out.

The complainant's evidence concerning the first count was to the effect that on one of these nights the Appellant entered the caravan,…

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 Lysle v R

Details

AGLC: LYSLE v The Queen [2012] NSWCCA 20
Case: [2012] NSWCCA 20
Decision Date: 29 February 2012

CaseChat Overview and Summary

The appellant, Lysle, was charged with sexual assault and, after a trial, was convicted and sentenced. The jury heard evidence of two prior sexual encounters with the same complainant, which were admitted under s 118 of the Evidence Act. On appeal, Lysle argued that the verdict of guilty was inconsistent because it was based on evidence of two separate sexual encounters, one of which was not alleged to be an offence. The High Court was asked to consider whether the conviction could be sustained in light of the rule in Browne v Dunn, which provides that a conviction cannot stand if the jury has been led to convict on the basis of evidence of an offence for which the accused has not been charged.

The court considered whether the evidence of the two prior sexual encounters was admissible and whether the conviction was supported by that evidence. The court noted that the evidence was relevant to establishing the relationship between the parties and the context of the alleged assault. However, the court also recognised that the rule in Browne v Dunn requires that a conviction cannot stand if the jury has been led to convict on the basis of evidence of an offence for which the accused has not been charged. The court had to determine whether the evidence of the two prior sexual encounters had been used to establish a fact in issue, or whether it had been used to prove the offence charged.

The court held that the evidence of the two prior sexual encounters was admissible to establish the relationship between the parties and the context of the alleged assault. However, the court also found that the conviction could not stand because the evidence of the two prior sexual encounters had been used to prove the offence charged. The court found that the evidence had been used to prove the appellant's propensity to commit the offence, rather than to establish a fact in issue. The court held that this was a misdirection and that the conviction could not stand. The court quashed the conviction and ordered a retrial.

The court ordered that the conviction be quashed and that a retrial be held. The court noted that the evidence of the two prior sexual encounters was admissible to establish the relationship between the parties and the context of the alleged assault, but that it could not be used to prove the offence charged. The court held that the conviction could not stand because the evidence had been used to prove the offence charged, rather than to establish a fact in issue. The court quashed the conviction and ordered a retrial.

Orders