LLEWELLYN v REGINA [2011] NSWCCA 66

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LLEWELLYN v REGINA [2011] NSWCCA 66 Hearing dates: Thursday 16 December 2010 Decision date: 05 April 2011 Before: McClellan CJ at CL at 1 Hall J at 3 Garling J at 127 Decision: (1) Leave be granted to the applicant to appeal pursuant to s.5(1) of the Criminal Appeal Act 1912. (2) An order that the appeal is allowed. (3) An order that the conviction of the applicant for an offence under s.61I of the Crimes Act 1900 entered on 18 June 2010 be set aside. (4) An order pursuant to s.8 of the Criminal Appeal Act 1912 that there be a new trial in relation to the offence charged under s.61I of the Crimes Act 1900. Catchwords: CRIMINAL LAW - conviction appeal - rule in Browne v Dunn - whether mistrial if question put to applicant but not complainant - questions from the jury relating to whether counsel was restricted from mentioning certain evidence as he knew it to be untrue - whether trial judge erred in allowing the jury to assess whether counsel's failure to question was an oversight - whether jury should consider counsel's ethical obligations - whether directions of trial judge were sufficient - whether misdirection by trial judge adversely impacted on applicant's credibility - no objection by counsel at trial to direction or request for jury's discharge - whether the verdict was unreasonable on the evidence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Appeal Rules 1952 Cases Cited: 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 Texts Cited: NSW Barristers' Rules Category: Principal judgment Parties: Aidan LLEWELLYN v REGINA Representation: Counsel: C: P Ingram SC A: K Averre Solicitors: C: S Kavanagh A: Nyman Gibson Stewart Lawyers File Number(s): 2009/69047 Decision under appeal Date of Decision: 2010-08-13 00:00:00 Before: Sweeney DCJ File Number(s): 09/69047