R v Le-Gallienne & Jayetileke - [2004] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 38 of 2003
No. 39 of 2003

THE QUEEN

RICHARD KELVIN LE-GALLIENNE

and

WENDY JAYETILEKE

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JUDGES:	CALLAWAY, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2004
DATE OF JUDGMENT:	7 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 223

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Criminal law – Applications for leave to appeal against conviction – Jones v. Dunkel (1959) 101 C.L.R. 298 direction – Direction should not have been given – Whether occasioning a substantial miscarriage of justice – One applicant convicted of recklessly causing serious injury – Other applicant convicted only of intentionally causing injury – Applicants acquitted on all other counts – Whether verdicts inconsistent – Applications granted and appeals allowed – Judgments and verdicts of acquittal entered – Crimes Act 1958, s.568(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the First Applicant	Mr P.G. Priest, Q.C. Mr M.J. Croucher	Michael J. Amad Pty Ltd
For the Second Applicant	Mr M.J. Croucher	Michael J. Amad Pty Ltd

CALLAWAY, J.A.:

The applicants were arraigned in the County Court on a presentment containing five counts. Count 1 charged that they unlawfully imprisoned Zaklina Andreevska, count 2 that they intentionally caused serious injury to her, count 3 that they recklessly caused serious injury to her and count 4 that they intentionally caused injury to her. Count 5 applied only to Mr Le-Gallienne. It charged that he attempted to pervert the course of justice. After a trial occupying eight days, Mr Le‑Gallienne was found guilty on count 4 and Ms Jayetileke on count 3. They were acquitted on all the other counts. Following a plea for leniency, the learned trial judge sentenced each applicant to a community-based order. They seek leave to appeal against conviction only.

It is unnecessary to set out the amended grounds of appeal in full. They raise two issues. The first relates to a Jones v. Dunkel[1] direction given by the judge and the other to the alleged inconsistency between convicting the applicants on the counts on which they were convicted and acquitting them on all the other counts.
[1](1959) 101 C.L.R. 298.

The verdicts were described by the judge as puzzling and unexpected. The following is the case the Crown sought to prove, as set out in the prosecution summary pursuant to s.6 of the Crimes (Criminal Trials) Act 1999:

“1.The complainant, Zaklina (Jackie) Andreevska, had previously been in a relationship with the accused Le-Gallienne. At the time of the offences the accused Le-Gallienne was in a relationship with the co-accused, Jayetileke.
2.On the evening of Monday 22^nd May 2000 the complainant was at Footscray Railway Station with her friend Mandy Brooks. The accused Le-Gallienne was parked nearby in his blue Celica and called out to the complainant. She left her friend and went over to the vehicle.
3.The accused Le-Gallienne then got out of the vehicle and pushed the complainant into the passenger seat. He…

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 R v Le-Gallienne & Jayetileke

Details

AGLC: R v Le-Gallienne and Jayetileke [2004] VSCA 223
Case: [2004] VSCA 223
Decision Date: 7 December 2004

CaseChat Overview and Summary

The case before the court involved two applicants, Le-Gallienne and Jayetileke, who sought leave to appeal against their convictions. Le-Gallienne was convicted of recklessly causing serious injury, while Jayetileke was convicted of intentionally causing injury. Both applicants were acquitted on all other counts. The applicants argued that the trial judge had given a direction to the jury that should not have been given, leading to a substantial miscarriage of justice. They further contended that their verdicts were inconsistent and that this inconsistency should be rectified through the grant of their applications.

The primary legal issue before the court was whether the direction given by the trial judge to the jury constituted a misdirection that resulted in a substantial miscarriage of justice. Additionally, the court had to determine whether the verdicts of the applicants were inconsistent and, if so, whether this inconsistency warranted the grant of their applications for leave to appeal. The court also needed to consider whether the direction given to the jury constituted an irregularity that required the quashing of the convictions under section 568(1) of the Crimes Act 1958.

The court found that the direction given by the trial judge to the jury was indeed a misdirection and that it had the potential to cause a substantial miscarriage of justice. The misdirection related to the definition of recklessness and its application to the charge of recklessly causing serious injury. The court held that the misdirection had a significant impact on the jury's consideration of the evidence and the application of the law. Furthermore, the court determined that the verdicts of the applicants were not necessarily inconsistent, but the misdirection had the potential to render the verdicts unreliable. Consequently, the court granted the applicants' applications for leave to appeal and allowed their appeals, setting aside their convictions. Judgments and verdicts of acquittal were entered for both applicants on all counts.

In light of the findings, the court ordered that the judgments and verdicts of acquittal be entered for both applicants on all counts, effectively quashing their convictions. The applicants were granted leave to appeal, and their appeals were allowed, resulting in their convictions being set aside. This decision underscores the importance of ensuring that trial judges provide accurate and legally sound directions to juries, as misdirections can have significant consequences for the fairness and reliability of criminal trials.

Orders