AK v R

Case [2022] NSWCCA 175 17 August 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AK v R [2022] NSWCCA 175
Hearing dates: 22 June 2022
Date of orders: 17 August 2022
Decision date: 17 August 2022
Before: Beech-Jones CJ at CL at [1];
Price J at [14];
Lonergan J at [281]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the convictions entered in the District Court of New South Wales on 17 December 2020.
(4) Order a new trial.
(5) List for Mention at the Sydney District Court in Court 3.1 at 9:30am on 26 August 2022.
(6) Direct that no later than 6 weeks prior to the date of the retrial, the Respondent notify the chamber of Price J or Beech-Jones CJ at CL of that date.

Catchwords:
CRIME — Appeals — Appeal against convictions – sexual offences and assault offences committed against wife – arranged marriage – failure to call two character witnesses at the applicant’s trial due to the failure by the applicant’s former solicitors to notify trial counsel of their availability – whether miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) established – approach to miscarriage considered – whether no substantial miscarriage – where evidence not called, difficulty for the court’s ability to assess guilt being established beyond reasonable doubt – appeal allowed – convictions quashed – new trial ordered

Legislation Cited:
Crimes Act 1900 (NSW), ss 61, 61I, 61J(1)
Criminal Appeal Act 1912 (NSW), s 6(1)

Cases Cited:
Ali v R (2005) 214 ALR 1; [2005] HCA 8
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40
Hofer v The Queen (2021) 291 A Crim R 114; [2021] HCA 36
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44
Rogerson v R; McNamara v R [2021] NSWCCA 160
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Texts Cited:
Nil

Category: Principal judgment
Parties: AK (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC; D Barrow (Applicant)
E Balodis; J Sfinas (Respondent)
Solicitors:
Criminal Law Group (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/351964; 2019/63594
Publication restriction: Pursuant to s 578A of the Crimes Act 1900, publication of any matter which could identify the victim is prohibited
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

17 December 2020

Before:

O’Brien AM DCJ

File Number(s):

2018/351964; 2019/63594

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AK v R

Details

AGLC: AK v R [2022] NSWCCA 175
Case: [2022] NSWCCA 175
Decision Date: 17 August 2022

CaseChat Overview and Summary

AK, the appellant, brought an appeal against his convictions for various sexual offences and assault offences committed against his wife. The case was heard in the NSW Court of Criminal Appeal, where the appellant argued that the failure to call two character witnesses at his trial resulted in a miscarriage of justice. The defence had not called the witnesses because the appellant's former solicitors did not notify the trial counsel of their availability. The court was required to determine whether the absence of the character witnesses constituted a miscarriage of justice under section 6(1) of the Criminal Appeal Act 1912 (NSW) and whether the failure to call the witnesses resulted in no substantial miscarriage of justice.

The court held that the absence of the character witnesses made it difficult for the court to assess whether the appellant's guilt had been established beyond reasonable doubt. The court noted that the character witnesses could have provided valuable insight into the appellant's character and reputation, which could have influenced the jury's decision. The court found that the failure to call the witnesses was a significant error that affected the fairness of the trial. The court concluded that the absence of the character witnesses did not result in no substantial miscarriage of justice, and the appeal was allowed. The convictions were quashed, and a new trial was ordered.

The court emphasised that the absence of character witnesses can have a significant impact on the fairness of a trial, particularly in cases where the credibility of the accused is at issue. The court also highlighted the importance of effective communication between solicitors and trial counsel to ensure that all available evidence is presented to the court. The court's decision in this case underscores the need for careful consideration of the admissibility of character evidence and the potential impact of its absence on the fairness of a trial.

Orders