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R v Lebler

R v Lebler

Case [2003] NSWCCA 362 11 December 2003

Appeal

Recklessness

Admissibility of Evidence

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CITATION: R v Lebler [2003] NSWCCA 362

HEARING DATE(S): 26/11/03

JUDGMENT DATE:
11 December 2003

JUDGMENT OF: Meagher ACJ at 1; Kirby J at 2; Shaw J at 106

DECISION: Appeal dismissed

CATCHWORDS: Criminal Practice & Procedure - inconsistent verdicts - unreasonableness of verdict - use of doubt on one count when resolving issues on other counts - pressure on jury to reach verdict - recklessness in context of consent to sexual intercourse - directions on complaint evidence cf accused's denials

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED: Black v The Queen (1993) 179 CLR 44
M v The Queen (1994) 181 CLR 487
MFA v R (2002) 193 ALR 184
MacKenzie v The Queen (1996) 190 CLR 348
R v Crisologo (1997) 99 A Crim R 178
R v Kirkman (1987) 44 SASR 591
R v Markuleski (2001) 52 NSWLR 82
Regina v ITA [2003] NSWCCA 174
R v Colville [2003] NSWCCA 23
R v Kitchener (1993) 29 NSWLR 696
R v Tolmie (1995) 37 NSWLR 660
Graham v The Queen (1998) 195 CLR 606
Kilby v The Queen (1973) 129 CLR 460
Crofts v The Queen (1996) 186 CLR 427
Jones v The Queen (1997) 191 CLR 439

PARTIES :
Regina
Natalis Andre Lebler

FILE NUMBER(S): CCA 60295/03

COUNSEL: P M Miller (Crown)
P Hamill (Appellant)

SOLICITORS: C K Smith (Crown)
S O'Connor (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0193

LOWER COURT
JUDICIAL OFFICER : Ducker DCJ

60295/03

MEAGHER JA
KIRBY J
SHAW J
Thursday 11 December 2003

REGINA v Natalis Andre LEBLER

Judgment

1 MEAGHER JA: I agree with Kirby J.

2 KIRBY J: Natalis Andre Lebler (the appellant) stood trial before Acting Judge Ducker and a jury at Lismore. He was charged on three counts under s61(I) of the Crimes Act 1900, all expressed in these terms:

"... that he on 15 December 1999 at Nimbin in the State of New South Wales did have sexual intercourse with Sarah Jane Cassandra Hill without her consent and knowing she was not consenting."

3 Each act of sexual intercourse was said to have taken place in the appellant's car which was then parked in a remote area outside Nimbin. The first and third counts involved penile penetration. The second count was penetration by the tongue, that is, cunnilingus.

4 The jury returned a verdict of not guilty on the first count, but guilty on counts 2 and 3. When sentencing Mr Lebler, Ducker ADCJ said this:

"I have been shown some drafts of proposed appeal in this matter. I, with respect, would have thought that the first suggested ground should be that the jury's verdicts were inconsistent and possibly indicative of compromise with each other. I can envisage some scenarios which, to my mind, could have given rise to the jury's verdicts but I do not propose to trespass into an area which will become the responsibility of the Court of Criminal Appeal to determine."

5…

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 Lebler

Details

AGLC: R v Lebler [2003] NSWCCA 362
Case: [2003] NSWCCA 362
Decision Date: 11 December 2003

CaseChat Overview and Summary

The case involved the respondent, Lebler, who was charged with several sexual offences against a woman. The primary dispute was whether the jury's verdicts were unreasonable, particularly in light of the inconsistent findings across different counts. The High Court of Australia was tasked with reviewing the decision of the New South Wales Court of Criminal Appeal, which had upheld the conviction but quashed the verdict on one count.

The central legal issues revolved around the reasonableness of the jury's verdicts and whether the trial judge's directions to the jury on the use of doubt and the burden of proof were appropriate. Additionally, the court needed to determine if the jury's consideration of one count influenced their decisions on other counts and whether the judge's instructions on the complainant's evidence, in the context of the accused's denials, were adequate. The definition and application of recklessness in the context of consent to sexual intercourse also formed part of the court's consideration.

In its reasoning, the court found that the jury's verdicts were not unreasonable given the evidence presented. It acknowledged the challenges in reaching consistent verdicts when faced with conflicting testimonies and the potential influence of doubt on one count when deliberating on others. The court further held that there was no unfairness in the judge's directions to the jury, which appropriately balanced the considerations of doubt and the complainant's evidence. The court also found that the judge's instructions on recklessness in the context of consent were sufficient. Consequently, the appeal was dismissed, and the conviction was upheld.

The final orders of the court confirmed the upholding of the conviction, with the quashing of the verdict on one count being upheld by the New South Wales Court of Criminal Appeal. The court's decision emphasised the importance of ensuring that jury verdicts are reasonable and that the trial judge's directions adequately guide the jury in their deliberations.

Orders