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9
Court of Criminal Appeal 27 August 2004

R v Liristis

[2004] NSWCCA 287

Also reported as (2004) 146 A Crim R 547
Public order & justice offences
CRIMINAL PRACTICE & PROCEDURE PERJURY ADDRESS BY CROWN WHETHER RULE APPLIES IN CRIMINAL TRIALS IMPROPER COMMENTS BY CROWN IN ADDRESS ELEMENTS OF PERJURY

Citation: R v Liristis [2004] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 27 August 2004
Judges: Studdert J, Kirby J, Hislop J

Background

The appellant, a company director, engaged a solicitor to represent him in a commercial dispute arising from a boat-building contract with a Malaysian company. A disagreement later arose over when the solicitor had disclosed his costs structure to the appellant. The appellant gave sworn evidence in Local Court proceedings that the solicitor had not disclosed his costs until 21 July 1998, a date that contradicted the solicitor's own account and documentary records.

On the basis of that sworn statement, the appellant was charged with perjury. He was tried before a jury in the District Court, convicted, and sentenced to a fixed term of six months imprisonment.

The appellant appealed to the Court of Criminal Appeal on several grounds, including that the Crown prosecutor had made improper comments during the address to the jury and had given a misleading explanation of the rule in Browne v Dunn.

  • Whether the rule in Browne v Dunn applies in criminal trials, and whether the Crown prosecutor's explanation of that rule to the jury was misleading or improper
  • Whether the Crown prosecutor made other improper comments in the closing address
  • Whether the trial judge's directions on the elements of perjury, particularly on the possibility of honest mistake, were adequate
  • Whether the identified errors warranted a new trial or an outright acquittal

Decision

The Court allowed the appeal, finding that the Crown prosecutor's address contained serious problems. In particular, the prosecutor gave a misleading account of the rule in Browne v Dunn, a rule of practice that requires a party to put a contested matter to a witness in cross-examination before making submissions against that witness's credit. The Court found that the Crown's explanation of this rule, and the way it was deployed during the address, risked causing the jury to draw impermissible adverse inferences against the appellant.

The Court also identified other improper comments in the Crown's closing address. These comments, taken together with the misapplication of Browne v Dunn, created a real risk of a miscarriage of justice.

The Court further considered whether the trial judge had adequately directed the jury on the possibility of honest mistake in the context of perjury. A conviction for perjury requires proof that the accused knew the statement was false when it was made. The Court found the directions on this element were not adequately put to the jury.

On the question of remedy, the Court considered whether to order a new trial or enter an acquittal. The appellant argued that an acquittal was warranted, partly because the need for a new trial arose from the Crown prosecutor's conduct and partly because he had already served seven weeks of his sentence before being released on bail. The Court acknowledged those considerations, but held, with some hesitation, that the seriousness of a false affidavit and the existence of admissible evidence capable of supporting a conviction meant a new trial was the appropriate outcome.

Orders Made

  • Appeal allowed
  • Conviction quashed and sentence set aside
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that the rule in Browne v Dunn is a rule of practice, not a rule of substantive law, and that a Crown prosecutor who misrepresents its operation or effect to the jury risks causing a miscarriage of justice.
  • Where a prosecutor makes improper or misleading comments in a closing address, those comments may constitute sufficient error to warrant quashing a conviction, even where the underlying evidence against the accused is cogent.
  • A conviction for perjury requires proof that the accused knew the statement was false at the time it was made. The trial judge must adequately direct the jury on honest mistake as part of that element.
  • Where a new trial is warranted due in part to prosecutorial misconduct, and the accused has already served a portion of a custodial sentence, those circumstances are relevant to the discretionary question of whether a retrial would be unjust, but they do not automatically compel an acquittal.
  • Sufficient admissible evidence at the original trial remains a weighty consideration in favour of a retrial rather than outright acquittal, even where errors at trial were serious.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
- Oaths Act 1936 (SA)

Cases
- Browne v Dunn (1894) 6 R 67
- Seymour v The ABC (1977) 19 NSWLR 219
- Allied Pastoral Holdings Pty Ltd 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
- Whitehorn v The Queen (1983) 152 CLR 657
- MacKenzie v The Queen (1996) 190 CLR 348
- 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 Birks (1990) 19 NSWLR 677
- R v Pedrana (2001) 123 A Crim R 1
- R v Abdallah (2001) 127 A Crim R 46
- R v MRW (1999) 113 A Crim R 308
- R v Kennedy (2000) 118 A Crim R 34
- R v Teasdale [2004] NSWCCA 91