LEE v R [2009] NSWCCA 259

New South Wales Court of Criminal Appeal

CITATION: LEE v R [2009] NSWCCA 259

HEARING DATE(S): 14 September 2009

JUDGMENT DATE: 26 October 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 7; Grove J at 8

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Convictions for sexual offences - Evidence called by Crown from spouse of the appellant - Leave to cross examine - Ruling that evidence unfavourable giving rise to grant of leave not eroneous - Direction by trial judge - Absence of objection at trial - Comment on scope of rule 4 of Criminal Appeal Rules

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED : R v Button & Griffen (2002) 129 A Crim R 242

PARTIES: Christopher Roy LEE - Applicant REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/1346

COUNSEL: G D Wendler - Applicant S Dowling - Respondent/Crown

SOLICITORS: Galloways - Applicant Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/13463

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 7 August 2008

IN THE COURT OF CRIMINAL APPEAL CCA 2007/1346

SPIGELMAN CJ McCLELLAN CJ at CL GROVE J

26 October 2009 Christopher Roy LEE v R

Judgment

1 SPIGELMAN CJ: I agree with Grove J. I wish to add one observation with respect to Ground 2. 2 No objection was taken at the trial to his Honour's observations to the jury explaining why the Crown would cross-examine its own witness. The Crown did not, however, seek to rely on r 4 of the Criminal Appeal Rules with respect to Ground 2. In contrast it did rely on r 4 with respect to Ground 3. 3 The subject matter of Ground 3 was clearly an "omission to direct" within r 4. However, the observations which are the subject of Ground 2 were also "a direction" within that rule.