Rahman v R - [2021] NSWCCA 290

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rahman v R [2021] NSWCCA 290
Hearing dates: 1 December 2021
Date of orders: 1 December 2021
Decision date: 10 December 2021
Before: Harrison J at [1]
Davies J at [2]
Wright J at [93]
Decision:
(1) Refuse leave to appeal under Rule 4.15 in respect of grounds 1 and 2.
(2) Grant leave to appeal in respect of ground 3.
(3) Appeal upheld.
(4) Quash the appellant’s conviction.
(5) Order a re-trial.

Catchwords:
CRIME – appeals – appeal against conviction – applicant found guilty of four counts of aggravated indecent assault of a person under 16 – whether trial miscarried as a consequence of trial judge’s failure to direct the jury in relation to lies – where lies relied on as affecting applicant’s credibility only - no miscarriage of justice occasioned by trial judge’s not giving an Edwards direction – character evidence – evidence only that applicant had no convictions - where trial judge did not give to jury the second part of usual character direction – no miscarriage of justice – failure to direct jury as to applicant’s right to silence – where in applicant’s ERISP applicant answered questions until specific allegations made by complainant were put to him – where applicant lost real possibility of an acquittal fairly open to him

Legislation Cited:
Crimes Act 1900 (NSW) s 61M
Supreme Court (Criminal Appeal) Rules 2021 r 4.15

Cases Cited:
Dhanoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193
Melbourne v The Queen (1999) 198 CLR 1
Petty v The Queen (1991) 173 CLR 95
R v Reeves (1992) 29 NSWLR 109
Taylor-Joycey v R [2021] NSWCCA 29
Xu v R [2019] NSWCCA 178

Texts Cited:
Nil

Category: Principal judgment
Parties: Mizanur Rahman (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Krisenthal (Applicant)
M Millward (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/279649
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

11 September 2020

Before:

Traill DCJ

File Number(s):

2018/279649

Judgment

HARRISON J: The analysis and conclusions of Davies J reflect my reasons for joining in the making of the orders at the conclusion of the hearing on 1 December 2021.
DAVIES J: At the conclusion of the hearing of this appeal on 1 December 2021, the Court made the following orders:

Leave to appeal granted.

Appeal allowed.

Quash the convictions in the District Court.

Order a re-trial.

The Court indicated that reasons would be provided later. These are my reasons for joining in those orders.

The applicant stood trial in late 2019 at the District Court at Sydney before her Honour Judge Traill and a jury on an indictment containing four counts of aggravated indecent assault of a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW) (those sections…

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 Rahman v R

Details

AGLC: Rahman v R [2021] NSWCCA 290
Case: [2021] NSWCCA 290
Decision Date: 10 December 2021

CaseChat Overview and Summary

The case of Rahman v R involved an appellant who was found guilty of four counts of aggravated indecent assault of a person under 16. The appellant sought to appeal against his conviction, arguing that the trial judge’s failure to direct the jury regarding certain lies resulted in a miscarriage of justice. Additionally, the appellant contended that the trial judge did not properly instruct the jury on character evidence and the right to silence.

The legal issues before the court included whether the trial judge’s failure to direct the jury in relation to lies, which were relied upon solely to affect the appellant’s credibility, amounted to a miscarriage of justice. The court also needed to determine if the trial judge’s omission of part of the usual character direction constituted a miscarriage of justice. Furthermore, the court examined whether the trial judge’s failure to direct the jury about the appellant’s right to silence resulted in a miscarriage of justice, particularly considering the appellant's responses during his evidence in the record of interview.

The court found that there was no miscarriage of justice due to the trial judge’s failure to give an Edwards direction regarding the lies, as the lies were only used to affect the appellant's credibility. The omission of the second part of the character direction did not result in a miscarriage of justice, as the evidence only showed that the appellant had no prior convictions. The court also held that there was no miscarriage of justice in relation to the right to silence, as the appellant had voluntarily answered questions until specific allegations were put to him, thereby losing any real possibility of an acquittal.

Orders