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10
Court of Criminal Appeal 17 August 2022

AK v R

[2022] NSWCCA 175

Sexual offencesAssault & violence
ARRANGED MARRIAGE APPROACH TO MISCARRIAGE CONSIDERED WHETHER NO SUBSTANTIAL MISCARRIAGE APPEAL ALLOWED CONVICTIONS QUASHED NEW TRIAL ORDERED

Citation: AK v R [2022] NSWCCA 175
Court: Court of Criminal Appeal, New South Wales
Date: 17 August 2022
Judges: Beech-Jones CJ at CL; Price J; Lonergan J

Background

A jury in the District Court convicted the applicant on nine counts, comprising two counts of aggravated sexual intercourse without consent, five counts of sexual intercourse without consent, and two counts of common assault, all against his wife. The couple had met through an arranged marriage. The offences on the indictment were said to have occurred on the wedding night, during the honeymoon, and subsequently while the couple were living together. The applicant was sentenced to an aggregate term of seven years' imprisonment with a four-year non-parole period.

Two women who had previously been in relationships with the applicant had each made statutory declarations describing him as non-violent, gentle, kind, and caring. Both indicated a willingness to give evidence of his good character at trial. However, the applicant's trial solicitor failed to bring those statements or the witnesses' availability to the attention of trial counsel, and the evidence was never led.

The applicant sought leave to appeal on the single ground that the absence of this character evidence, caused by the solicitor's failure rather than any fault of his own, constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW).

  • Whether the failure to call two available character witnesses, due to the trial solicitor's failure to brief trial counsel on their statements, constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether, if a miscarriage of justice was established, the proviso to s 6(1) applied so that no substantial miscarriage of justice occurred (that is, whether the convictions could nonetheless stand given the strength of the prosecution case).
  • What the correct legal approach to "miscarriage of justice" is in light of the High Court's decision in Hofer v The Queen [2021] HCA 36.

Decision

Price J, with Beech-Jones CJ at CL and Lonergan J agreeing, held that the evidence of the two witnesses was relevant to the applicant's likelihood of having committed the offences and to his credibility. It was capable of supporting his case that all sexual activity was consensual, of countering the Crown's tendency assertion that he had non-consensual intercourse while the complainant expressed pain, and of rebutting the claim that he sought to control her.

Beech-Jones CJ at CL addressed the concept of miscarriage of justice in light of Hofer. His Honour observed that the High Court has resolved the inquiry by asking whether there was a material irregularity in the trial and whether there is a "significant possibility" that the relevant acts or omissions affected the outcome. Critically, unlike the position in TKWJ v The Queen, there was no suggestion that the failure to adduce the witnesses' evidence could be reasonably explained. The applicant bore no fault.

Price J concluded that the evidence had not been called and it was not possible for the Court to speculate about what a future jury might make of it. The court therefore could not conclude, on an assessment of the record alone, that guilt had been proved beyond reasonable doubt. The Crown, for its part, effectively conceded that if a miscarriage was found, there was "very little room" for the proviso.

The Court held that no substantial miscarriage of justice could be ruled out, and that the proviso afforded no basis to uphold the convictions. The Court of Criminal Appeal granted leave to appeal, allowed the appeal, quashed the convictions, and ordered a new trial.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions entered in the District Court of New South Wales on 17 December 2020 quashed.
  • New trial ordered.
  • Matter listed for mention at the Sydney District Court on 26 August 2022.
  • The respondent directed to notify the chambers of Price J or Beech-Jones CJ at CL of the retrial date no later than six weeks prior to that date.

Key Takeaways

  • A miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) ordinarily requires a connection between the defect or irregularity in the trial and the outcome: there must be a "significant possibility" that the omission affected the verdict, or the defect must have had a "meaningful potential or tendency to have affected the result."
  • Under the approach confirmed in Hofer v The Queen [2021] HCA 36, an error or irregularity will rise to the level of a miscarriage of justice if it could realistically have affected the verdict, except where the error is so profound as to amount to a fundamental failure of the criminal process.
  • Where evidence was never placed before the jury due to a solicitor's failure to brief counsel, an appellate court cannot adequately assess whether guilt was established beyond reasonable doubt from the trial record alone, making application of the proviso particularly difficult.
  • The Court of Criminal Appeal distinguished this case from TKWJ on the basis that there was no reasonable explanation for the failure to adduce the character evidence, and the applicant was entirely blameless for the omission.
  • Character evidence from former partners, attesting to a defendant's non-violent and gentle disposition, can be sufficiently relevant both to the likelihood of guilt and to credibility to ground a miscarriage where its absence results from legal error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61I, 61J(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Hofer v The Queen (2021) 291 A Crim R 114; [2021] HCA 36
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40
- Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44
- Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28
- Ali v R (2005) 214 ALR 1; [2005] HCA 8
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Rogerson v R; McNamara v R [2021] NSWCCA 160