SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 38 of 2003
No. 39 of 2003
| THE QUEEN |
| v. |
| 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. | 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 22nd 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…
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- AGLC
- R v Le-Gallienne and Jayetileke [2004] VSCA 223
- Case
- [2004] VSCA 223
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence Before The Court
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Decision
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Ratio Decidendi
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