LLEWELLYN v REGINA [2011] NSWCCA 66

LLEWELLYN v REGINA [2011] NSWCCA 66

The trial judge's directions allowed the jury to consider the conduct of counsel as relevant to the applicant’s credibility, an issue not open for the jury, and failed to clarify that counsel’s oversight in cross-examination was of no significance. This misdirection occasioned a miscarriage of justice. The proviso...

Source-derived case information.

Parties
Applicant: Aidan Llewellyn; Respondent: Regina
Jurisdiction
Australia
Judgment Date
05 April 2011
Procedural Posture
Criminal Appeal / Appeal From Conviction
Outcome
appeal allowed, conviction set aside, new trial ordered
Legal Topics
Conviction Appeal, Application of the Rule in Browne V Dunn, Misdirection to Jury, Jury Directions—counsel’s Ethics, Fair Trial, Recent Invention, Sexual Assault—consent
Criminal Law Conviction Appeal Application of the Rule in Browne V Dunn Misdirection to Jury Jury Directions—counsel’s Ethics Fair Trial Recent Invention Sexual Assault—consent

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Parties

Aidan Llewellyn

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal From Conviction

Legal Issues

  1. 1 Whether the trial judge erred in the application of the rule in Browne v Dunn by allowing the prosecutor to raise the issue in cross-examination and in her direction to the jury
  2. 2 Whether the trial judge’s directions to the jury regarding counsel's ethical obligations constituted a misdirection causing miscarriage of justice
  3. 3 Whether the verdict was unreasonable or cannot be supported having regard to the evidence

Ratio Decidendi

The trial judge's directions allowed the jury to consider the conduct of counsel as relevant to the applicant’s credibility, an issue not open for the jury, and failed to clarify that counsel’s oversight in cross-examination was of no significance. This misdirection occasioned a miscarriage of justice. The proviso could not be applied and the conviction must be set aside with a new trial ordered.

Court Disposition

appeal allowed, conviction set aside, new trial ordered

Orders

  • Leave be granted to the applicant to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912.
  • The appeal is allowed.