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Uddin v The Queen

Uddin v The Queen

Case [2020] NSWCCA 115 3 June 2020

Appeal

Jurisdiction

Admissibility of Evidence

Misdirection

Miscarriage of Justice

Leave to Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Uddin v R [2020] NSWCCA 115
Hearing dates: 11 May 2020; Written submissions on 18 and 20 May 2020
Date of orders: 03 June 2020
Decision date: 03 June 2020
Before: Meagher JA; Fullerton J; Wilson J
Decision:
(1) Grant leave to appeal on grounds 1 and 2.

(2) Allow the appeal on each ground.

(3) Quash the appellant’s convictions on counts 1, 2, 4, 5 and 6.
(4) Order that there be a new trial.
Catchwords:
CRIME – Appeals – Appeal against conviction – Where accused sought a voir dire examination to establish evidence of “experimental or explorative touching” between young children – Where trial judge declined to hold a voir dire because prospective evidence inadmissible under Criminal Procedure Act, s 293 – Whether prospective evidence likely to be inadmissible by reason of s 293(3) – Whether prospective evidence likely to be within exception in s 293(4)(a) – Whether s 293 prevents evidence being adduced in an examination on a voir dire – Appeal allowed on ground 1 (unanimous).
CRIMINAL PROCEDURE – Trial – Directions to jury – Misdirection – Where evidence led of conduct of complainant “consistent” with the alleged offending having occurred – Where evidence incorrectly described by Crown as “complaint” evidence – Where directions provided limited guidance as to use of conduct evidence – Where no objection taken by defence counsel at trial to directions as to use or to description of evidence as “complaint” evidence – Whether directions were inadequate – Whether a miscarriage of justice – Whether to grant leave to appeal under Criminal Appeal Rules, r 4 – Leave granted – Appeal allowed on ground 2 (by majority).
Legislation Cited:
Crimes Act 1900 (NSW), ss 66A(1), 61M(2), 61HB(1), 61HC(1), 61KC and 409B
Criminal Procedure Act 1986 (NSW), ss 3(1) and 293
Criminal Appeal Act 1912 (NSW), ss 5(1)(b) and 6
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 55 and 66

Cases Cited:
Adams v R [2018] NSWCCA 303
BG v R [2010] NSWCCA 301; (2010) 208 A Crim R 34
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
GEH v R [2012] NSWCCA 150; (2012) 228 A Crim R 32
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
R v Basha (1989) 39 A Crim R 337
R v G (1997) 42 NSWLR 451
R v Lillyman [1896] 2 QB 167
R v Morgan (1993) 30 NSWLR 543
R v Rahme [2004] NSWCCA 233
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Sio v The Queen (2016) 259 CLR 47; [2016]…

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 Uddin v The Queen

Details

AGLC: Uddin v The Queen [2020] NSWCCA 115
Case: [2020] NSWCCA 115
Decision Date: 03 June 2020

CaseChat Overview and Summary

In the case of Uddin v The Queen, the appellant was convicted of various sexual offences against young children. The appellant sought a voir dire to establish evidence of "experimental or explorative touching" between young children, arguing that such evidence was relevant and admissible. The trial judge declined to hold a voir dire, ruling that the prospective evidence was inadmissible under section 293 of the Criminal Procedure Act. The appellant appealed against his conviction and sentence on two grounds: first, that the trial judge erred in refusing to hold a voir dire, and second, that the trial judge misdirected the jury in relation to the complainant's conduct evidence.

The court examined whether the prospective evidence was likely to be inadmissible under section 293(3) of the Act, and whether it was likely to fall within the exception in section 293(4)(a). The court also considered whether section 293 prevented evidence being adduced in an examination on a voir dire. The court held that the trial judge erred in refusing to hold a voir dire, as the prospective evidence was not necessarily inadmissible, and the exception in section 293(4)(a) was potentially applicable. The court further held that the trial judge misdirected the jury in relation to the complainant's conduct evidence, as the directions provided limited guidance as to the use of such evidence and the evidence was incorrectly described by the Crown as "complaint" evidence. The court held that a miscarriage of justice had occurred, and granted leave to appeal under the Criminal Appeal Rules, rule 4.

The appeal was allowed on both grounds. On ground 1, the court held that the trial judge erred in refusing to hold a voir dire, and that the prospective evidence was not necessarily inadmissible. On ground 2, the court held that the trial judge misdirected the jury in relation to the complainant's conduct evidence, and that a miscarriage of justice had occurred. The convictions and sentences were quashed, and the matter was remitted to the Court of Appeal for retrial.

Orders