Uddin v R [2020] NSWCCA 115

Uddin v R [2020] NSWCCA 115

The trial judge's refusal to conduct a voir dire to explore evidence potentially providing an innocent explanation for the complainant's behaviour was in error, as this evidence was relevant and either not properly excluded under s 293(3) or likely to come within an exception in s 293(4)(a). This exclusion led to a miscarriage of justice warranting the quashing of convictions and ordering a new trial. Furthermore, the jury directions concerning the conduct evidence were insufficient, failing to properly guide the consideration of circumstantial evidence, and this also justified quashing the verdicts.

Parties
Applicant: Mohammed Giash Uddin; Respondent: The Crown
Jurisdiction
Australia
Judgment Date
03 June 2020
Procedural Posture
Criminal Appeal / Appeal Against Conviction Before Court of Criminal Appeal, Post Verdict, Pre Retrial
Outcome
Appeal allowed; convictions quashed; new trial ordered
Legal Topics
Appeals Against Conviction, Voir Dire, Admissibility of Evidence, Directions to Jury, Sexual Offences, Miscarriage of Justice
Criminal Law Criminal Procedure Evidence Appeals Against Conviction Voir Dire Admissibility of Evidence Directions to Jury Sexual Offences +1 more

Case Brief

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Parties

Mohammed Giash Uddin

Applicant

The Crown

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction Before Court of Criminal Appeal, Post Verdict, Pre Retrial

Legal Issues

  1. 1 Whether the trial judge erred in rejecting a voir dire application to adduce evidence of 'experimental or explorative touching' between children under s 293 of the Criminal Procedure Act 1986 (NSW)
  2. 2 Whether the trial judge's directions regarding the use of conduct evidence were inadequate and led to a miscarriage of justice

Ratio Decidendi

The trial judge's refusal to conduct a voir dire to explore evidence potentially providing an innocent explanation for the complainant's behaviour was in error, as this evidence was relevant and either not properly excluded under s 293(3) or likely to come within an exception in s 293(4)(a). This exclusion led to a miscarriage of justice warranting the quashing of convictions and ordering a new trial. Furthermore, the jury directions concerning the conduct evidence were insufficient, failing to properly guide the consideration of circumstantial evidence, and this also justified quashing the verdicts.

Court Disposition

Appeal allowed; convictions quashed; new trial ordered

Orders

  • Grant leave to appeal on grounds 1 and 2
  • Allow the appeal on each ground