AK v R [2022] NSWCCA 175

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AK v R [2022] NSWCCA 175 Hearing dates: 22 June 2022 Date of orders: 17 August 2022 Decision date: 17 August 2022 Before: Beech-Jones CJ at CL at [1]; Price J at [14]; Lonergan J at [281] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the convictions entered in the District Court of New South Wales on 17 December 2020. (4) Order a new trial. (5) List for Mention at the Sydney District Court in Court 3.1 at 9:30am on 26 August 2022. (6) Direct that no later than 6 weeks prior to the date of the retrial, the Respondent notify the chamber of Price J or Beech-Jones CJ at CL of that date. Catchwords: CRIME — Appeals — Appeal against convictions – sexual offences and assault offences committed against wife – arranged marriage – failure to call two character witnesses at the applicant's trial due to the failure by the applicant's former solicitors to notify trial counsel of their availability – whether miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) established – approach to miscarriage considered – whether no substantial miscarriage – where evidence not called, difficulty for the court's ability to assess guilt being established beyond reasonable doubt – appeal allowed – convictions quashed – new trial ordered Legislation Cited: Crimes Act 1900 (NSW), ss 61, 61I, 61J(1) Criminal Appeal Act 1912 (NSW), s 6(1) Cases Cited: Ali v R (2005) 214 ALR 1; [2005] HCA 8 Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 GBF v The Queen (2020) 384 ALR 569; [2020] HCA 40 Hofer v The Queen (2021) 291 A Crim R 114; [2021] HCA 36 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 Rogerson v R; McNamara v R [2021] NSWCCA 160 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Texts Cited: Nil Category: Principal judgment Parties: AK (Applicant) Regina (Respondent) Representation: Counsel: T Game SC; D Barrow (Applicant) E Balodis; J Sfinas (Respondent)