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Court of Criminal Appeal 10 December 2021

Rahman v R

[2021] NSWCCA 290

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION CHARACTER EVIDENCE NO MISCARRIAGE OF JUSTICE

Citation: Rahman v R [2021] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 10 December 2021
Judge(s): Harrison J, Davies J, Wright J

Background

The applicant was a home tutor who had provided private lessons to a family's children from around 2008. The complainant, a minor, alleged that the applicant had been touching her inappropriately since she was around eight years old, with specific incidents occurring in 2018. The matter was reported through the complainant's school, and the applicant was arrested and interviewed by police.

Following a trial in the District Court in late 2019, the jury returned guilty verdicts on all four counts of aggravated indecent assault of a person under 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The applicant was sentenced to an aggregate of three years and three months' imprisonment with a non-parole period of two years and three months.

The applicant sought leave to appeal against both conviction and sentence on five grounds. The Court granted leave to appeal and allowed the appeal on one conviction ground, making it unnecessary to address the sentence grounds.

  • Whether the trial miscarried because the trial judge failed to direct the jury in relation to lies (an Edwards direction), where the alleged lies were relevant only to the applicant's credibility
  • Whether the trial miscarried because the trial judge failed to properly direct the jury as to the applicant's good character, specifically by omitting the second limb of the standard character direction
  • Whether the trial miscarried because the trial judge failed to properly direct the jury as to the applicant's right to silence, given that the applicant declined to answer certain questions during his electronically recorded interview with police (ERISP)

Decision

Ground 1: Lies direction. The Court refused leave to appeal on this ground. Where alleged lies go only to an accused's credibility, rather than being relied upon as evidence of guilt independently of the rest of the Crown case (as in a classic Edwards direction situation), there is no miscarriage of justice from the omission of a formal lies direction. The trial judge's failure to give such a direction here did not occasion any substantial miscarriage of justice.

Ground 2: Good character direction. The Court also refused leave to appeal on this ground. The only character evidence before the jury was that the applicant had no prior convictions. The trial judge gave the first limb of the standard character direction (going to credibility) but omitted the second limb (propensity, which bears on the likelihood of committing the offence). The Court found that, on the particular facts and the nature of the evidence, the omission did not result in a substantial miscarriage of justice.

Ground 3: Right to silence. The Court upheld this ground and allowed the appeal. During the ERISP, the applicant answered police questions until the specific allegations made by the complainant were put to him, at which point he declined to answer. The trial judge gave only an inadequate direction on the applicant's right to silence, which neither identified the proper basis for that right nor made clear that no adverse inference could be drawn from its exercise. Neither the police nor the Crown prosecutor's comments about the applicant's silence carried the authority of a proper judicial direction. The Court found that neither party had sought an adequate direction at trial, apparently through inadvertence of defence counsel, but that the applicant lost a real possibility of an acquittal that was fairly open to him as a result of the inadequate direction. That was sufficient to establish a substantial miscarriage of justice.

Because the conviction appeal succeeded on ground 3, the Court made no ruling on the sentence appeal grounds.

Orders Made

  • Leave to appeal refused under Rule 4.15 in respect of grounds 1 and 2
  • Leave to appeal granted in respect of ground 3
  • Appeal upheld
  • Convictions quashed
  • Re-trial ordered

Key Takeaways

  • A lies direction (known as an Edwards direction) is not required where alleged lies go only to credibility rather than serving as independent evidence of guilt; the Court of Criminal Appeal confirmed that omitting such a direction in those circumstances will not ordinarily occasion a miscarriage of justice.
  • Where good character evidence extends no further than an absence of prior convictions, omitting the propensity limb of the character direction will not automatically produce a substantial miscarriage of justice, depending on the facts.
  • A direction on an accused's right to silence must identify the proper basis for that right and make clear that no adverse inference can be drawn from its exercise; a bare or incomplete statement, whether from counsel or from the bench, will not satisfy this requirement.
  • Inadequate direction on the right to silence will ground a successful conviction appeal where the accused can be shown to have lost a real possibility of acquittal fairly open to them, even where the failure to seek a proper direction at trial appears to have been inadvertence on the part of defence counsel.
  • Procedural default rules (here, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021) will not bar an appeal where the inadequacy of a direction caused a substantial miscarriage of justice.

Legislation and Cases Referenced

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

Cases
- 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