In sexual assault cases turning on credibility where the accused has no prior convictions, failure by defence counsel to adduce good character evidence, where there is no rational forensic explanation for the omission, constitutes a material irregularity with a significant possibility of affecting the outcome. Where an accused is acquitted on counts arising from a second incident but convicted on counts from an earlier incident, and the complainant's voluntary return to the scene of the first alleged assault is critical to the defence, a retrial may be unfair if the acquittals would not be before the new jury.
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