David L'Estrange v The Queen [2011] NSWCCA 89

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: David L'Estrange v The Queen [2011] NSWCCA 89 Hearing dates: 9 December 2010 Decision date: 01 April 2011 Before: McClellan CJ at CL at [1] McCallum J at [2] R A Hulme J at [126] Decision: Appeal allowed; convictions quashed and new trial ordered. Catchwords: CRIMINAL - conviction appeal - admissibility of evidence of prior criminal conduct as "background" evidence - not tendency evidence - failure of trial judge to take into account risk that jury would engage in tendency reasoning - failure to warn jury against tendency reasoning - EXPERT EVIDENCE - improper cross examination of expert called by the appellant so as to place inadmissible hearsay opinion of another expert before the jury - appeal allowed. Legislation Cited: Evidence Act 1995 Cases Cited: Ahern v The Queen [1988] HCA 39 (1988); 165 CLR 87. Harriman v R (1989) 167 CLR 590 R v Beserick (1993) 30 NSWLR 510 at 516B JDK v R; M v The Queen [1994] HCA 63 (1994); 181 CLR 487 at 494-495. BRS v The Queen [1997] HCA 47; 191 CLR 257 at 302, 306. R v Morgan [2000] NSWCCA 7 R v Blick [2000] NSWCCA 61 KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221. R v Quach [2002] NSW CCA 519 HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16 (2008); 235 CLR 334 R v JDK [2009] NSWCCA 76 at [32] Category: Principal judgment Parties: David L'Estrange (appellant) Representation: Counsel: Mr Ramage QC (Appellant) F Veltro (Crown) Solicitors: M Krajcik (Appellant) S Kavanagh (Solicitor for Public Prosecutions) File Number(s): Publication restriction: If there is to be a retrial, judgment should not be posted on the internet until after such trial. Decision under appeal Date of Decision: 2008-11-26 00:00:00 Before: Woods QC DCJ File Number(s): CCAP2007/8935