Citation: Lucknow (a pseudonym) v R [2021] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 11 June 2021
Judge(s): Macfarlan JA, Button J, Ierace J (all agreeing)
Background
The applicant (referred to by the pseudonym "Arthur Lucknow") was tried in the District Court at Newcastle in May and June 2019. He faced nine counts of non-penetrative child sexual offences alleged to have occurred between December 2011 and September 2017 against two children, referred to as "Charles" and "Claudia," who were the children of his former long-term partner. He had lived with the family as a stepfather figure for much of the relevant period.
The Crown case rested heavily on the evidence of the two complainants, each of whose accounts was also admitted as tendency evidence in relation to the offending alleged against the other. The applicant did not give evidence at trial and called no witnesses, relying instead on his denials and cross-examination of Crown witnesses.
The jury returned guilty verdicts on all counts. The applicant sought leave to appeal against conviction on the ground that a miscarriage of justice occurred because defence counsel did not raise his good character, specifically the complete absence of any prior suggestion of child sexual assault or sexual interest in children, either as a general character matter or in that particular respect.
Legal Issues
- Whether defence counsel's deliberate decision not to raise the applicant's good character (including "divisibility of character" in the particular respect of no prior suggestion of child sexual interest) resulted in a miscarriage of justice under s 6 of the Criminal Appeal Act 1912 (NSW).
- Whether the forensic disadvantage that could have flowed from raising character was sufficiently significant to justify that decision, given that the Crown had no evidence to rebut a character claim in that particular respect.
- Whether the failure to put compelling favourable evidence before the jury gave rise to a significant possibility of a reasonable doubt, satisfying the miscarriage of justice standard.
Decision
Button J (with whom Macfarlan JA and Ierace J agreed) found that a miscarriage of justice had been established. The court accepted that defence counsel's decision was firm and considered, but held that the relevant inquiry was not into counsel's reasoning process. The question was whether, objectively, the failure to place compelling evidence before the jury produced a miscarriage.
The court noted that the applicant was a middle-aged man of good character in a very specific and powerful respect: there was no suggestion whatsoever of any prior child sexual assault or sexual interest in children. Section 110 of the Evidence Act 1995 (NSW) permits an accused to lead evidence of good character in a particular respect. Here, that avenue was available and the Crown had no evidence to rebut it.
Button J acknowledged that raising character can open the door to rebuttal evidence and that counsel may have feared this. However, the court found that the only disadvantage in raising character in this particular respect was a technical, taxonomic one. The Crown was not in a position to counter it with any evidence of bad character in that respect, and whatever forensic disadvantage existed was characterised as "slight."
Against that slight disadvantage, the court weighed the significant forensic benefit of placing before the jury evidence that strongly (though not conclusively) argued against guilt. Applying the plurality judgment in TKWJ v The Queen, the court concluded that evidence of good character in the particular respect identified could well have made the difference between satisfaction beyond reasonable doubt and the absence thereof, giving rise to a likelihood (meaning a significant possibility) of a reasonable doubt.
Orders Made
- Leave to appeal against conviction granted.
- Appeal against conviction upheld.
- All convictions and sentences imposed by Judge Turnbull SC quashed.
- A new trial ordered; the matter listed in the District Court arraignments list on 25 June 2021.
Key Takeaways
- A deliberate and considered decision by defence counsel not to lead evidence is not automatically immune from scrutiny on appeal; the relevant question is whether the failure to place compelling evidence before the jury caused a miscarriage of justice, not what was in counsel's mind.
- Under s 110 of the Evidence Act 1995 (NSW), an accused may lead good character evidence in a particular respect, such as the complete absence of prior conduct or interest of a specific kind, without necessarily placing their general character in issue.
- Where compelling character evidence was available and the Crown had no evidence to rebut it, the forensic disadvantage of tendering that evidence was found to be "slight" and insufficient to justify withholding it from the jury.
- The standard for establishing miscarriage of justice in this context requires showing that the evidence could give rise to a likelihood (in the sense of a significant possibility) of a reasonable doubt, not that it would necessarily have produced an acquittal.
- In child sexual assault trials where each complainant's evidence is used as tendency evidence against the other, the Court of Criminal Appeal recognised that character evidence in a particular relevant respect could carry especially significant weight with a jury.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 110
Cases
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- JV v R [2017] NSWCCA 49
- R v Zurita [2002] NSWCCA 22
- Restricted Decision [2021] NSWCCA 74
- Sah Wah v The Queen (2014) 239 A Crim R 41; [2014] VSCA 7
- R v Stalder [1981] 2 NSWLR 9; (1981) 3 A Crim R 87