Lucknow (a pseudonym) v R [2021] NSWCCA 113

Lucknow (a pseudonym) v R [2021] NSWCCA 113

The failure to raise the applicant's general good character did not constitute a miscarriage of justice because it would likely have permitted substantial rebutting character evidence about abusive, bullying and mistreating behaviour. However, the failure to raise character in the particular respect that there was no other suggestion of sexual interest in, or sexual crimes against, children did constitute a miscarriage of justice. The Crown conceded it could not rebut that particular evidence with further contrary evidence; the evidence could have powerfully affected the jury's assessment of reasonable doubt; and any added forensic disadvantage from the complainants' evidence also being...

Jurisdiction
Australia
Judgment Date
11 June 2021
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Convictions From the District Court of New South Wales
Outcome
Leave to appeal against conviction granted; appeal against conviction upheld; convictions and sentences quashed; new trial ordered.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'child Sexual Assault Trial' 'good Character Evidence' 'character in a Particular Respect' 'tendency Evidence' 'forensic Decisions by Defence Counsel']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'miscarriage of Justice' 'child Sexual Assault Trial' 'good Character Evidence' 'character in a Particular Respect' 'tendency Evidence' 'forensic Decisions by Defence Counsel']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Convictions From the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the trial miscarried because defence counsel failed to raise evidence of the applicant's good character generally or in a particular respect." 'Whether the applicant was deprived of a fairly open chance of acquittal by the jury not hearing evidence that he had no prior convictions, charges or allegations of child sexual assault or sexual interest in children.' 'Whether the deliberate forensic decision not to raise character evidence precluded a finding of miscarriage of justice.' 'Whether any forensic disadvantage from raising character in the particular respect would have outweighed the potential significance of the evidence.']

Ratio Decidendi

The failure to raise the applicant's general good character did not constitute a miscarriage of justice because it would likely have permitted substantial rebutting character evidence about abusive, bullying and mistreating behaviour. However, the failure to raise character in the particular respect that there was no other suggestion of sexual interest in, or sexual crimes against, children did constitute a miscarriage of justice. The Crown conceded it could not rebut that particular evidence with further contrary evidence; the evidence could have powerfully affected the jury's assessment of reasonable doubt; and any added forensic disadvantage from the complainants' evidence also being...

Court Disposition

Leave to appeal against conviction granted; appeal against conviction upheld; convictions and sentences quashed; new trial ordered.

Orders

  • ['Leave to appeal against conviction granted.' 'Appeal against conviction upheld.' 'All of the convictions entered and sentences imposed by Judge Turnbull SC are quashed, and a new trial is to be had.' 'The matter is listed in the District Court arraignments list on Friday 25 June 2021.']