Uddin v The Queen

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.