LLEWELLYN v REGINA

Citation: Llewellyn v Regina [2011] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 5 April 2011
Judge(s): McClellan CJ at CL, Hall J, Garling J

Background

The appellant was convicted by a jury in the Sydney District Court on 17 June 2010 of sexual intercourse without consent under s 61I of the Crimes Act 1900. The Crown alleged the offence occurred in the early hours of 25 January 2009 at Manly, after a night of socialising involving alcohol and drug consumption. The central issue at trial was consent.

The complainant gave evidence that she fell asleep on a bed at a flat and woke to find the appellant engaged in sexual intercourse with her without her consent. Witnesses who entered the room shortly after gave corroborating accounts of her distress. The appellant, by contrast, maintained that the intercourse was consensual.

During the trial, the jury sent questions to the judge about whether defence counsel had been restricted from mentioning certain matters because he knew them to be untrue. This prompted the Crown to cross-examine the appellant on whether his counsel's omission to put certain matters to the complainant reflected the actual instructions the appellant had given. The trial judge allowed this line of questioning and subsequently directed the jury in a way that invited them to assess the conduct of defence counsel.

Legal Issues

• Whether the trial judge erred in applying the rule in Browne v Dunn by permitting the Crown to cross-examine the appellant on matters not put to the complainant, and in directing the jury in a way that made defence counsel's conduct an issue
• Whether the trial judge's direction improperly invited the jury to assess whether defence counsel had been truthful, thereby prejudicing the appellant's credibility
• Whether the failure of defence counsel at trial to object to the direction, or to seek the jury's discharge, was fatal to the appeal
• Whether the verdict was unreasonable or unsupported by the evidence

Decision

Hall J (with McClellan CJ at CL agreeing) found that the cross-examination questions posed to the appellant were improper and should never have been permitted. The questions required the appellant either to reveal his privileged legal instructions or to remain silent in a way that damaged his credibility. The Court held that legally professional privilege attaches to instructions given by an accused to their lawyers, and any question that compels the accused to waive or reveal that privilege is fundamentally unfair.

The trial judge compounded the problem by responding to the jury's questions in a manner that effectively made defence counsel's conduct a live issue for the jury. The jury were invited to consider whether defence counsel was being truthful when, through his examination of the appellant, he had communicated the substance of the appellant's instructions. McClellan CJ at CL described this as making counsel's honesty an issue in the trial, which should not have occurred.

The Court rejected the argument that the absence of a timely objection by defence counsel precluded the appeal. The impropriety of the questions and the resulting direction were of such significance that the conviction could not stand. Hall J concluded that the trial was rendered unfair and that the proviso under the Criminal Appeal Act 1912 (which allows a conviction to be upheld despite an error where no substantial miscarriage of justice has occurred) could not be applied to save the conviction.

On Ground 2, Hall J considered the evidence but it is clear from the reasoning that the appeal succeeded on Ground 1. The conviction was set aside on the basis that the trial was an unfair trial.

Orders Made

• The conviction must be set aside

Key Takeaways

• Cross-examining an accused on matters not put to the complainant in the context of the rule in Browne v Dunn will be improper where the questions effectively compel disclosure of legally professionally privileged instructions given to defence counsel.

• A trial judge responding to jury questions in a way that invites the jury to assess the truthfulness or ethical conduct of defence counsel risks making counsel's honesty an issue in the trial, which is capable of causing a serious miscarriage of justice.

• The Court of Criminal Appeal confirmed that the absence of a contemporaneous objection by trial counsel does not automatically preclude a successful conviction appeal where the underlying error is sufficiently serious.

• Where a trial has been rendered fundamentally unfair, the proviso under the Criminal Appeal Act 1912 cannot be applied to preserve the conviction: the resulting miscarriage of justice is too serious to be treated as non-substantial.

• Proper application of the rule in Browne v Dunn requires care when the matters not put to a witness relate to the instructions of an accused; the authorities in this area, dating back more than 20 years, call for "much caution and circumspection" before such questions are permitted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules 1952 (NSW)

Cases
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Mraz v Regina (1955) 93 CLR 493
- MWJ v Regina (2005) 80 ALJR 329
- Picker v Regina [2002] NSWCCA 78
- Regina v Abdallah [2001] NSWCCA 506
- Regina v Banic [2004] NSWCCA 322
- Regina v Birks (1990) 19 NSWLR 677
- Regina v Dennis [1999] NSWCCA 23
- Regina v Manunta (Unreported, Full Court, Supreme Court of South Australia, 28 July 1989)
- Regina v Rasic [2009] NSWCCA 202
- Regina v Scott [2004] NSWCCA 254
- Regina v Storey (1978) 140 CLR 364
- RWB v Regina [2010] NSWCCA 147
- Weiss v Regina (2005) 224 CLR 300
- Whitehorn v The Queen (1983) 152 CLR 657
- Wilde v Regina (1987-1988) 164 CLR 365