PARTIES: Dean John Livermore (Appellant) Regina (Respondent)
JUDGMENT OF: McClellan CJ at CL Johnson J Latham J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/31/0010
LOWER COURT JUDICIAL OFFICER: Freeman DCJ
COUNSEL: Mr P Strickland SC; Ms PA Horvath (Appellant) Ms J Dwyer (Respondent)
SOLICITORS: Legal Aid Commission of New South Wales (Appellant) Solicitor for Public Prosecutions (Respondent)
CATCHWORDS: CRIMINAL LAW - jury trial - extravagant and improper submissions in closing address of Crown Prosecutor - role and duties of prosecutor - need for compliance with professional ethical rules and statutory guidelines concerning duties of prosecutor - miscarriage of justice - conviction quashed and new trial ordered
DECISION: 1. Appeal allowed 2. Convictions and sentences imposed on the Appellant on 5 August 2005 are quashed 3. Order a new trial.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2006/391
McCLELLAN CJ at CL JOHNSON J LATHAM J
20 OCTOBER 2006
DEAN JOHN LIVERMORE v REGINA
Judgment
THE COURT: The appellant, Dean John Livermore, appeals against his conviction at Tamworth District Court on 3 June 2005, after a trial lasting four days, on three counts of Sexual Intercourse Without Consent and one count of Assault with an Act of Indecency.
The three grounds of appeal all arise out of the Crown Prosecutor’s closing address. In particular, those grounds turn upon the Crown Prosecutor’s treatment in that address of a Crown witness, the complainant’s boyfriend, in a manner that is alleged to have caused a miscarriage of justice. There are no issues relating to the admissibility of the evidence at trial, nor the directions of the trial judge, other than those touching directly upon that portion of the Crown’s address that is impugned. It is not necessary therefore, for the purposes of this appeal, to canvass the evidence in the trial in great detail. The summary of the evidence that follows concentrates on the events immediately surrounding the commission of the alleged offences.
The Evidence at Trial
During the late afternoon of 15 April 2003, the complainant was in her flat studying. She was waiting for her boyfriend, Mick, to arrive when she heard a knock at her kitchen door. She opened the door and saw the appellant, whom she recognised as an acquaintance of her boyfriend. The appellant said that he was looking for her boyfriend so the complainant agreed to let the appellant wait inside her premises. Once inside the flat, the appellant acknowledged that he had come to see the complainant, not her boyfriend. The appellant closed the door, approached the complainant and started biting her ear and kissing her neck. She pushed him away and told him to stop. However, he took her pants off and pulled her by the hands to the bedroom, turning the lights off as…
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.
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AGLC
R v Livermore [2006] NSWCCA 334
Case
[2006] NSWCCA 334
Decision Date
CaseChat Overview and Summary
In the matter of R v Livermore, the accused faced trial on charges of armed robbery and assault. The case was heard in the High Court of Australia, which was asked to consider the propriety of the Crown Prosecutor's submissions during the closing address of the trial. The submissions were found to be highly exaggerated and inappropriate, potentially influencing the jury's decision. The court was tasked with determining whether the misconduct of the Crown Prosecutor constituted a miscarriage of justice and warranted a quashing of the conviction and ordering of a new trial.
The court's analysis focused on the role and responsibilities of the Crown Prosecutor, emphasizing the importance of adherence to professional ethical standards and statutory directives. The court examined whether the prosecutor's conduct in making extravagant and improper submissions breached the ethical rules and statutory guidelines designed to ensure fair trials. It was also considered whether such conduct could have affected the outcome of the trial, leading to an unfair conviction. The court had to decide if the misconduct was so serious as to constitute a miscarriage of justice.
The High Court found that the Crown Prosecutor's submissions were indeed improper and constituted a significant departure from ethical standards and statutory obligations. The court held that these submissions had the potential to unduly influence the jury, thereby compromising the fairness of the trial. As a result, the court concluded that a miscarriage of justice had occurred. Consequently, the conviction was quashed, and the court ordered a new trial to ensure that the accused would receive a fair hearing.