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28
Court of Criminal Appeal 20 October 2006

Livermore v R

[2006] NSWCCA 334

Also reported as (2006) 67 NSWLR 659
Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW JURY TRIAL ROLE AND DUTIES OF PROSECUTOR MISCARRIAGE OF JUSTICE

Citation: Livermore v R [2006] NSWCCA 334
Court: NSW Court of Criminal Appeal
Date: 20 October 2006
Judge(s): McClellan CJ at CL, Johnson J, Latham J

Background

The appellant was convicted at Tamworth District Court in June 2005, following a four-day trial, on three counts of sexual intercourse without consent and one count of assault with an act of indecency. The offences were alleged to have occurred in April 2003, when the appellant entered the complainant's flat, ostensibly to wait for her boyfriend, and then sexually assaulted her.

The complainant's boyfriend gave evidence at trial. He had arrived at the flat during the incident, heard the complainant say "no, stop," and knocked at the door. When the complainant opened the door, the appellant fled naked from the back of the flat. The boyfriend's conduct in the immediate aftermath, including his initial reaction toward the complainant and his subsequent confrontation of the appellant, featured in the evidence.

All three grounds of appeal arose from the Crown Prosecutor's closing address to the jury. None of the grounds concerned the admissibility of evidence or the trial judge's directions, except to the extent those matters related directly to the impugned portion of the address.

  • Whether the Crown Prosecutor's closing address contained submissions that were extravagant, improper, or inconsistent with the duties of a prosecutor
  • Whether those submissions caused a miscarriage of justice sufficient to quash the convictions
  • Whether the proviso (the principle that allows an appellate court to dismiss an appeal despite a legal error where no substantial miscarriage of justice has occurred) could be applied to save the convictions

Decision

The Court found that the Crown Prosecutor's treatment of the complainant's boyfriend in the closing address was improper. The Crown Prosecutor had made submissions about this Crown witness in a manner inconsistent with the obligations imposed on prosecutors, which the Court characterised as extravagant and unfair.

The Court identified those obligations by reference to the Bar Rules applicable in NSW and the Director of Public Prosecutions Code of Conduct and Prosecution Guidelines. Relevantly, a prosecutor must fairly assist the court to reach the truth, must not press for conviction beyond a full and firm presentation of the case, and must not use language or conduct designed to inflame or bias the court against the accused. These obligations also prohibit arguing propositions of fact or law that the prosecutor does not reasonably believe capable of contributing to a finding of guilt.

The Court held that the Crown Prosecutor's conduct constituted a significant denial of procedural fairness. Applying the High Court's decision in Weiss v The Queen, the Court concluded that this kind of procedural unfairness did not permit the application of the proviso. The convictions were therefore quashed.

The Court noted that similar prosecutorial misconduct had required the same outcome in a series of earlier cases, and expressed a clear expectation that Crown Prosecutors will comply with both professional ethical rules and the statutory guidelines issued by the Director of Public Prosecutions.

Orders Made

  • Appeal allowed
  • Convictions and sentences imposed on the appellant on 5 August 2005 quashed
  • New trial ordered

Key Takeaways

  • A Crown Prosecutor's closing address must comply with professional ethical rules and the DPP's Prosecution Guidelines. Extravagant or inflammatory submissions that depart from those standards may constitute a miscarriage of justice.
  • The duties of a prosecutor include fairly assisting the court to reach the truth, not pressing for conviction beyond the full and firm presentation of the Crown case, and not using language designed to inflame the tribunal against an accused.
  • Where a Crown Prosecutor's improper conduct amounts to a significant denial of procedural fairness, the proviso (which otherwise permits an appellate court to dismiss an appeal despite legal error) cannot be applied to preserve a conviction.
  • The Court of Criminal Appeal confirmed that this outcome is consistent with a line of earlier decisions, including R v MRW, R v Kennedy, R v Rugari, and R v Liristis, all of which resulted in appeals being allowed on similar grounds.
  • Improper prosecutorial conduct carries real consequences for the administration of justice, not only for the individual conviction but for the public interest in fair criminal proceedings.

Legislation and Cases Referenced

Legislation:
- Crown Prosecutors Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- NSW Bar Rules (in particular, Rules 62 to 65)
- DPP Code of Conduct (May 2005) and Prosecution Guidelines

Cases:
- Weiss v The Queen (2005) 80 ALJR 444; [2005] HCA 81
- Whitehorn v The Queen (1983) 152 CLR 657
- R v Liristis (2004) 146 A Crim R 547
- R v Rugari (2001) 122 A Crim R 1
- R v MRW (1999) 113 A Crim R 308
- R v Kennedy (2000) 118 A Crim R 34
- R v Janceski (2005) 64 NSWLR 10
- Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51
- KNP v Regina [2006] NSWCCA 213
- R v Joseph Attallah [2005] NSWCCA 277
- R v McCullough (1982) 6 A Crim R 274
- R v Callaghan (1993) 70 A Crim R 350