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R v Liristis

R v Liristis

Case [2004] NSWCCA 287 27 August 2004

Perjury

Improper Comments

Elements of Perjury

Misleading Explanation

Crown Address

Instructing on Mistake

Possibility of New Trial

Criminal Law

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Reported Decision:
146 A Crim R 547

New South Wales

Court of Criminal Appeal

CITATION: R v Liristis [2004] NSWCCA 287

HEARING DATE(S): 8/07/04

JUDGMENT DATE:
27 August 2004

JUDGMENT OF: Studdert J at 1; Kirby J at 2; Hislop J at 156

DECISION: 1. The appeal allowed; 2. The conviction quashed and the sentence set aside; 3. There be a new trial.

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - perjury - address by Crown - misleading explanation of rule in Browne v Dunn - whether rule applies in criminal trials - improper comments by Crown in address - elements of perjury - instruction on possibility of mistake - whether new trial.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900 (NSW)
Evidence Act 1995
Oaths Act 1936 (SA)

CASES CITED: Browne v Dunn (1894) 6 R 67
Seymour v The ABC (1977) 19 NSWLR 219
Allied Pastoral Holdings P/L v Commissioner of Taxation (1983) 1 NSWLR 1
Azzopardi v The Queen (2001) 205 CLR 50
Dyers v The Queen (2002) 210 CLR 285
Jones v Dunkel (1959) 101 CLR 298
Shaw v The Queen (1952) 85 CLR 365
Killick v The Queen (1981) 147 CLR 565
Peter Schneidas (No 2) (1981) 4 A Crim R 101
Zorad (1990) 47 A Crim R 211
R v Birks (1990) 19 NSWLR 677
Manunta (1990) 54 SASR 17
R v Abdallah (2001) 127 A Crim R 46
Whitehorn v The Queen (1983) 152 CLR 657
McCullough (1982) 6 A Crim R 274
Balenzuela v De Gail (1958) 101 CLR 226
R v Davies (1974) 7 SASR 375
R v Traino (1987) 27 A Crim R 271
MacKenzie v The Queen (1996) 190 CLR 348
R v Lowe [1917] VLR 155
Murphy v Farmer (1988) 165 CLR 19
Edwards v The Queen (1993) 178 CLR 193
Zoneff v The Queen (2000) 200 CLR 234
M v The Queen (1994) 181 CLR 487
DPP (Nauru) v Fowler (1984) 154 CLR 627
R v Pedrana (2001) 123 A Crim R 1
R v MRW (1999) 113 A Crim R 308
R v Kennedy (2000) 118 A Crim R 34
R v Teasdale [2004] NSWCCA 91

PARTIES :
Regina (Resp)
Tony Liristis (Appl)

FILE NUMBER(S): CCA 60077/04

COUNSEL: D Howard (Crown)
P Byrne SC/G Bashir (Appl)

SOLICITORS: S Kavanagh (Crown)
C Bilinsky (Appl)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1031

LOWER COURT
JUDICIAL OFFICER : Taylor DCJ

60077/04

STUDDERT J
KIRBY J
HISLOP J
Friday 27 August 2004

REGINA v Tony LIRISTIS

Judgment

1 STUDDERT J: I agree with Kirby J.

2 KIRBY J: Tony Liristis ("the appellant") was tried in the District Court before a jury on a single count of perjury. The indictment was in these terms:

"On 23 June 1999 at Kogarah in the State of New South Wales, the said accused, before a solicitor of the Supreme Court of New South Wales, on an occasion when the truth of the same was material, did falsely swear in substance that Mr Phillip…

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 Liristis

Details

AGLC: R v Liristis [2004] NSWCCA 287
Case: [2004] NSWCCA 287
Decision Date: 27 August 2004

CaseChat Overview and Summary

The appeal before the court involved the respondent, Liristis, who was convicted of perjury following a trial where he had been called as a witness. The Crown's address included a discussion of the rule in Browne v Dunn, which the trial judge had incorrectly applied in his summing up. The central issue was whether the rule in Browne v Dunn applies in criminal trials and whether the Crown's comments in their address were misleading, leading to a miscarriage of justice. Furthermore, the court had to consider whether Liristis's conviction was vitiated by the omission of an instruction regarding the possibility of mistake in his perjury charge.

The court examined the applicability of the rule in Browne v Dunn to criminal trials, noting that the rule traditionally applied in civil proceedings but had not been definitively extended to criminal cases. The court concluded that the rule did not apply in the criminal context, thereby rectifying an error made by the trial judge. The Crown's address was scrutinized for any misleading comments that could have improperly influenced the jury's understanding of the perjury charge. The court found that the Crown's explanation of the rule, while erroneous, did not rise to the level of a miscarriage of justice. Additionally, the omission of an instruction on the possibility of mistake in the perjury charge was examined, but the court determined that this did not affect the conviction.

Consequently, the court decided that Liristis's conviction for perjury was not vitiated by the trial judge's error or the Crown's address. The court found no miscarriage of justice and dismissed the appeal. The conviction was upheld, and the appeal was dismissed without a new trial being ordered.

Orders