Hogg v R

1. [1]

   WHITE JA: This is an appeal or application for leave to appeal against conviction.

2. [2]

   On 9 February 2018 the appellant was convicted on a charge that:

3. [3]

   The charge was laid pursuant to s 61D(1) of the Crimes Act 1900 (NSW) as in force on 29 July 1988.

4. [4]

   At that time the then s 61D(1) of the Crimes Act provided:

5. [5]

   The offence was a serious indictable offence (Interpretation Act 1987 (NSW), s 21). On 12 May 2016 the investigating police officer gave the appellant a “special caution” under s 89A of the Evidence Act 1995 (NSW) that he did not have to say or do anything, but it might harm his defence if he failed or refused to mention something that he later relied on in court.

6. [6]

   Acting on legal advice the appellant declined to answer questions. The Crown did not put to the appellant that his decision to decline to answer questions was not due to his acting on legal advice but because he had no satisfactory explanation to give, or that he would not have relied on that advice if he were innocent.

7. [7]

   As explained below, five of the grounds of appeal concern the application of s 89A and the directions given to the jury in relation to the drawing of adverse inferences against the accused from his exercise of his right to silence. The sixth ground of appeal concerns cross-examination of the appellant and a character witness called by him, the Crown’s address to the jury and the judge’s directions in relation to the appellant’s good character.

8. [8]

   No objection was taken at trial to the directions to the jury or to the cross-examination which the appellant says was unfairly prejudicial. Nonetheless, for the reasons which follow I have concluded that the trial miscarried for two reasons. First, it was not open to the jury to draw an adverse inference from the appellant’s exercise of his right to silence when his reason for doing so was unchallenged. Secondly, the Crown’s cross-examination and submissions to the jury on the accused’s good character were unfairly prejudicial and that prejudice was not corrected by the judge’s directions. These errors deprived the appellant of a real chance of acquittal.

9. [9]

   Accordingly, I have concluded that the appellant’s conviction should be set aside. In the circumstances, including that the appellant’s sentence has been substantially served, I propose that a judgment of acquittal be entered rather than a new trial ordered.

The evidence at trial

1. [10]

   On 29 July 1988 the complainant was a schoolgirl in Year 11 at Carlingford High School. She was 16 years of age, having been born in June 1972.

2. [11]

   The appellant was a school chaplain and the youth Baptist Minister at Carlingford Baptist Church. The appellant and the complainant knew each other, both from the appellant’s work with the school and his having been the marriage celebrant for the complainant’s older sister in 1987.

3. [12]

   In the week commencing 25 July 1988 the complainant undertook work experience with another Year 11 student, Carlene Fryer. As part of that work experience the complainant and Ms Fryer travelled with the appellant as part of his work with disadvantaged or marginalised youth. They visited various juvenile detention centres and attended the Children’s Court.

4. [13]

   The complainant gave evidence that on the last day of her work experience, Friday, 29 July 1988, the appellant dropped Ms Fryer off, probably at her home although the complainant could not recall where. She said that the appellant told her that he would take her home, but instead drove towards the city. She said that they crossed the Harbour Bridge and he drove her to a place under the bridge at Miller’s Point where he parked the car, telling her that they needed to talk. She said that it was about dusk when Ms Fryer was dropped off and when they parked under the Harbour Bridge it was dark and isolated.

5. [14]

   The complainant gave evidence that after the car was parked she assumed that they were there to talk. She described herself as a “troubled kid from an unhappy family”. She said that her father used to fight with her and her home life was emotional with verbal abuse and occasional domestic violence towards her and her sisters. She had a range of issues that she was distressed about and was initially grateful that the appellant was giving her time to talk. She knew that the appellant was a married man who had three children and was a Baptist youth minister. He was at least 20 years older than she. She felt uncomfortable when, according to her, the appellant brought the conversation around to asking about her boyfriends. She told him that she felt that boys only wanted her for one thing. The appellant moved as if to hug her, but then assaulted her by forcing himself onto her, kissing her by forcing his tongue down her throat, pressing his body against her, and then sexually assaulting her by digitally penetrating her vagina. She tried to push the appellant away with her body, which did not work, but then said something like “I need to get something out of my bag”. The appellant leaned back from her slightly and she leaned forward to her school bag and took out a cigarette which she lit and thus defused the situation.

6. [15]

   The complainant said that the next day she wrote a poem, that she later typed. The date of the poem enabled her to fix the date of the assault. The poem (if written as the complainant described) corroborated her account.

7. [16]

   On either the following Monday or Tuesday the complainant was in a distressed state and a boy in her class, Jamie Parker, tried to give her support. The complainant told Mr Parker that the appellant had tried to have sex with her or words to that effect. It was clear to Mr Parker that she was not able to tell her father or her family, so he told her that he would tell his mother and that his mother might be able to speak to the school principal or do something about it. Mr Parker gave evidence that the complainant said something along the lines of:

8. [17]

   The complainant was later interviewed by the school principal who asked her whether it was true that the appellant had tried to have sex with her, and she said he did.

9. [18]

   Another school friend, Ms Harmer, also gave evidence of the complainant’s being upset at school and reporting that she had gone to the appellant for some advice and support and that he had made sexual advances to her. She said that the complainant reported that it happened in the appellant’s car when they were parked somewhere and were talking.

10. [19]

    The position taken by the principal of Carlingford High School was that the appellant was no longer welcome to have any association with the school, either through scripture classes or work experience and that if any staff member or student or parent sought his involvement, he was expected to decline any offers.

11. [20]

    The complainant first made a complaint to the police in 2010 after having read in the newspaper that the appellant was receiving an award in the not-for-profit sector. No investigation was instigated at that time. On 1 June 2015 the complainant went to the Atherton police station in Queensland. She made a formal statement that she completed on 29 July 2015.

12. [21]

    On 9 May 2016 a Detective Senior Constable Huisman made contact with the appellant by telephone. He advised the appellant that the police were investigating an allegation of sexual assault. He did not get “very far into that conversation disclosing the particulars before [the appellant] advised [him] the lawyer would be in contact with him”.

13. [22]

    The appellant’s solicitor made contact with the police on 11 May and arrangements were made for the appellant to go with his solicitor to Sydney police station the following day. Detective Senior Constable Huisman gave the following unchallenged evidence of his interview with the appellant on 12 May 2016:

14. [23]

    The special caution given to the appellant set out above was given pursuant to s 89A of the Evidence Act 1995 (NSW). Section 89A provides:

15. [24]

    The section was introduced by the Evidence Amendment (Evidence of Silence) Act 2013 (NSW) and commenced on 1 September 2013. The long title to that Act states:

16. [25]

    The appellant gave evidence in his own defence. He gave evidence that after Carlene Fisher had been dropped off, he and the complainant went for a drive around Epping or the Lane Cove area, or maybe Ryde. He had said something to the complainant beforehand that they might go for a drive and have a bit of a chat about some of the things that she had mentioned to him that were concerning her. He said that he dropped the complainant off at her home and then went back to the Fryers’ place to watch Friday night football. He said that he thought that he arrived at the Fryers’ residence at about 7.30-7.45. He denied travelling to The Rocks or Millers Point at any time on 29 July 1988. He denied the complainant’s allegations of sexual assault. He denied having any physical contact at all with the complainant.

17. [26]

    The appellant gave evidence-in-chief in relation to being spoken to by police on 12 May 2016 and declining to be interviewed. He gave the following evidence:

18. [27]

    He was not cross-examined about his reason for refusing to answer questions on 12 May 2016.

19. [28]

    Evidence was led at the trial of the appellant’s good character. That evidence was not directly challenged. Instead the Crown cross-examined the appellant and witnesses called for the appellant to establish that the vulnerable children with whom the appellant worked, including the complainant, were vulnerable to sexual abuse and easily targeted and isolated. The appellant gave the following evidence in cross-examination:

20. [29]

    The appellant called, amongst other character witnesses, a Mr Thomas Sibbald, a clinical psychologist. He gave evidence that he thought the appellant’s professional and personal ethics were very high and at no stage had he ever had any concern about the appellant’s being around his children. That evidence was not challenged. Instead, the trial advocate for the Crown cross-examined Mr Sibbald as to whether he agreed that children who had had a traumatic upbringing or had been abused by people in authority over them were more vulnerable to further abuse. He agreed that children who had suffered trauma were probably at a greater risk of further trauma. He was asked whether he agreed that sexual offenders looked to isolate vulnerable people to abuse them. He said he did not have enough experience in that area to make a definitive comment, but in principle, the suggestion would probably be accurate. He was asked whether he agreed that people in positions of trust and authority did not necessarily target people that were not vulnerable or who had good family ties, but did target those who were vulnerable, “in other words there’s a bit of a Dr Jekyll and Mr Hyde that happens?”. Mr Sibbald said that he did not want to present as a professional witness and he was not sure whether what was suggested by counsel was accurate. All he could talk about was his relationship with the appellant.

21. [30]

    There was no objection to this cross-examination of the appellant or Mr Sibbald. Other character evidence was called.

22. [31]

    In his closing address to the jury the Crown trial advocate said:

23. [32]

    Counsel for the appellant at trial addressed this attempt to outflank the evidence of good character, and to turn that evidence back onto the appellant, by submitting that although the appellant had worked with many vulnerable young people over many years, there was no evidence of any other complaint against him.

24. [33]

    As set out below, the grounds of appeal fall broadly into two categories. Grounds 1, 2, 3, 4 and 6 concern s 89A of the Evidence Act and the directions given concerning it. Ground 5 concerns the Crown’s cross-examination raising the susceptibility of vulnerable children to sexual abuse by those in positions of trust, which it is said improperly undermined the character evidence and introduced highly prejudicial reasoning that was not corrected by the judge’s directions.

Directions

1. [34]

   The trial judge (Townsden DCJ) gave the following direction in relation to the special caution under s 89A. After referring to the caution given and the fact that the appellant had the opportunity to confer with his legal representative in private, and did so, after which his legal representative said that the appellant declined to discuss the matter further and realised the implications of doing so, and after referring to the appellant’s evidence that the reason he exercised his right to silence was due to advice he had received from his legal representative, the trial judge directed the jury as follows:

2. [35]

   There was no objection to this direction. Counsel for the appellant did not ask for a direction that because the appellant’s evidence of his reason for declining to answer questions was unchallenged and it was not suggested to him that he was hiding behind the legal advice, no adverse inference could be drawn from his election to remain silent.

3. [36]

   The jury asked for an elaboration on the direction regarding the caution. The trial judge repeated the direction, but did not elaborate on it. On the following day he provided a copy of the direction. The written direction was in the same terms as the oral direction given and repeated by the trial judge. The trial judge noted that the direction had been effectively drafted by counsel appearing for the appellant.

4. [37]

   The trial judge summarised evidence that was given as to the appellant’s good character and observed that the evidence was not challenged and that the jury should accept the fact that the appellant was a person of good character. The trial judge gave directions as to the use that the jury was entitled to make of the evidence of the accused’s good character. Those directions are not challenged. The trial judge then summarised the closing addresses of the Crown and the defence. In relation to the Crown’s closing address on this issue, the trial judge said:

5. [38]

   In relation to the closing address of counsel for the appellant, the judge said:

6. [39]

   The judge did not summarise the submission of counsel for the appellant that there was no evidence of any other complaint against him from any of the vulnerable children with whom he had worked.

Grounds of appeal

1. [40]

   The initial grounds of appeal were as follows:

2. [41]

   On the hearing of the appeal the appellant was given leave to add the following further ground:

The appellant’s submissions

1. [42]

   On the hearing of the appeal the principal focus of the submissions of Ms G Bashir SC who appeared for the appellant was upon ground 6. Ms Bashir submitted that s 89A is to be construed in accordance with the principle of legality, that is, that “... a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness.” (X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at 153 [158] per Kiefel J), Ms Bashir noted that s 89A is located within the Evidence Act and that s 9(1) of the Evidence Act provides that the Act:

2. [43]

   The principle or rule of the common law on which the appellant relies was summarised by Kiefel J in X7 v Australian Crime Commission as follows:

3. [44]

   Ms Bashir submitted that s 89A does not displace the principle in Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 (per Mason CJ, Deane, Toohey and McHugh JJ (at 99)) that:

4. [45]

   Ms Bashir submitted that s 89A did not alter an accused’s right to silence which is a fundamental principle of the common law. She submitted that no unfavourable inference could properly be drawn from an accused’s refusal to answer any questions, because that is a fundamental right of an accused, preserved by s 9, unless s 89A either expressly or by necessary intendment provides otherwise.

5. [46]

   Ms Bashir submitted that s 89A had work to do consistently with preserving the accused’s right of silence. She submitted that s 89A is directed to evidence of failure or refusal to mention a particular fact, as opposed to mere silence. She submitted that failure to mention a particular fact when questioned could give rise to an unfavourable inference under s 89A where, but only where, the fact not disclosed was peculiarly within the knowledge of the accused and called out for explanation, in the same way and to the same extent as a failure to give evidence at trial might give rise to an unfavourable inference against the accused (Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 at 228, 230 (per Mason CJ, Deane and Dawson JJ), 244-246 (per Gaudron and McHugh JJ); Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 at [62], [64]-[68] (per Gaudron, Gummow, Kirby and Hayne JJ); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [50]-[51]). .

6. [47]

   Section 89 of the Evidence Act was amended on the introduction of s 89A. Prior to its amendment s 89 provided in substance that in a criminal proceeding an inference unfavourable to a party must not be drawn from evidence that the party failed or refused to answer questions or to respond to a representation put or made to the party by another person or by an investigating official. Section 89(2) provided that evidence of that kind was not admissible if it could only be used to draw such an inference. Section 89 is now subject to s 89A.

7. [48]

   The appellant’s submission to the effect that s 89A is limited to those circumstances in which at general law in a criminal trial an accused’s failure to mention a particular fact that is peculiarly within his or her knowledge and could be expected to be raised if innocent, notwithstanding the presumption of innocence and the right to silence, is not an essential part of his submission. Whatever the scope of s 89A in relation to failing or refusing to answer particular questions, the appellant’s principal submission is that no adverse inference can be drawn from an accused’s refusal to answer any questions because in doing so the accused is exercising a fundamental right recognised by the common law.

8. [49]

   The appellant also submitted (Ground 1) that no issue arising from the appellant’s declining to answer questions could be drawn because s 89A did not apply. This was because the special caution given to the appellant was given in relation to a different serious indictable offence than the one with which he was charged. The appellant submitted that s 61D(1) of the Crimes Act contained distinct offences, being sexual assault without consent simpliciter carrying a maximum penalty of eight years’ imprisonment, and sexual assault without consent of a child under the age of 16 and above the age of 10 carrying a maximum penalty of 10 years’ imprisonment (Gulliford v R [2004] NSWCCA 338; (2004) 148 A Crim R 558 at [85]-[86]). Detective Senior Constable Huisman told the appellant that the police were currently investigating the offence of sexual assault (child older than 10, younger than 16) that was alleged to have occurred by him in a motor vehicle on 29 July 1988 at The Rocks with the complainant.

9. [50]

   Grounds 2 and 3 of the notice of appeal are based upon the fact that the appellant was not cross-examined on his evidence that he declined to answer questions on advice from his legal representative. The appellant argued by analogy to lies or conduct as an admission against interest that a refusal to answer questions could only be relied on by the Crown if it showed consciousness of guilt and that the accused had to be given the opportunity in cross-examination to deal with the imputation intended to be made against him. The appellant argued that there was a fundamental breach of the rule in Browne v Dunn (1893) 6 R 67 and because there was no challenge to the appellant’s evidence that he acted on legal advice, the jury should not have been invited to consider any adverse inference under s 89A. He argued that he did not have an opportunity to answer the suggestion that he had only made up his evidence that he was not at The Rocks on the day or time in question as recent invention to support his defence.

10. [51]

    In formulating the direction in the present case, the parties had regard to the standard directions provided for in the Bench Book in the United Kingdom in relation to inferences that can be drawn pursuant to s 34 of the Criminal Justice and Public Order Act 1994 (UK) from an accused’s silence when questioned or charged. The direction given reflected parts of the UK Bench Book model directions, but also departed from them in significant respects.

11. [52]

    The appellant submitted that if s 89A applied, which was disputed, the directions were deficient (Ground 4) and the jury should have been directed:

12. [53]

    The Crown submits that the direction given was materially the same as that now propounded by the appellant.

13. [54]

    As to the fifth ground of appeal, the appellant submitted that the cross-examination by the trial advocate for the Crown raised a type of tendency or coincidence reasoning for which no leave was sought and which should have been rejected. The appellant submitted that the cross-examination and the Crown submissions based upon it were unfairly prejudicial and unfairly deprived the appellant of the evidence of his good character. The Crown submission was repeated by the trial judge without correction. The appellant submitted that there was a miscarriage of justice that could not be said to be insubstantial.

Is leave to appeal required?

1. [55]

   Section 5 of the Criminal Appeal Act 1912 (NSW) provides that a person convicted on an indictment may appeal to this Court on any ground which involves a question of law alone, or otherwise with leave. The appellant submits that many of the grounds of appeal involve a question of law alone and leave to appeal on those grounds is not required. He submits that the issues raised in relation to s 89A of the Evidence Act involve questions of the proper construction of that section that involve a question or questions of law alone.

2. [56]

   Thus, in relation to ground 1 of the notice of appeal, the appellant says that the question of law raised is whether it is a necessary precondition for the operation of s 89A(1) that the relevant investigating official, at the time of the special caution, had reasonable cause to suspect that the accused had committed the serious indictable offence as charged on the indictment, and, secondly, whether a special caution given in relation to a different offence was sufficient.

3. [57]

   As to ground 2 and ground 6, the appellant submits that there is a question of law (and not a mixed question of law and fact) as to whether an adverse inference could ever be drawn from “mere silence” at the police station.

4. [58]

   In relation to ground 3 the appellant submits that there is a question of law as to whether it is necessary for a prosecutor to put to an accused matters later relied on as supporting adverse inferences to be drawn under s 89A and if so, whether that occurred in the present case.

5. [59]

   In relation to ground 4 the appellant submits that the correct form of directions to be given in a trial where the prosecution relies on inferences to be drawn under s 89A is a question of law.

6. [60]

   No objection was taken at trial to the directions given in relation to the special caution under s 89A. No ruling was sought from the trial judge that it was not open to the Crown to contend that an adverse inference could be drawn against the appellant pursuant to s 89A because of his refusal to answer questions at the police station.

7. [61]

   Rule 4 of the Criminal Appeal Rules provides:

8. [62]

   From time to time, issues have been raised as to the validity of r 4 in cases where an appellant has a right of appeal on a ground which involves a question of law alone under s 5(1)(a) of the Criminal Appeal Act (Doyle v R; R v Doyle [2014] NSWCCA 4 at [426]-[427]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [26]; Yu v R [2018] NSWCCA 201 at [48]-[67]).

9. [63]

   As in those cases, it is unnecessary to decide whether r 4 can apply to a ground of appeal on a question of law alone. To the extent it may be necessary, leave to appeal on each of the grounds of appeal should be given. Grounds 1-4 and 6 raise important questions concerning the operation of s 89A of the Evidence Act that have not yet been considered. In my view, consistently with the reasoning of Basten JA in Greenhalgh v R [2017] NSWCCA 94 at [7]-[14] the exercise of the power under r 4 to grant leave cannot be confined only to a case where an applicant establishes that he or she has lost a real chance of being acquitted.

10. [64]

    In Picken v R; R v Picken [2007] NSWCA 319 (“Picken”), Mason P said (at [20]-[22]):

11. [65]

    The requirement in Picken that the appellant show that they have lost a real chance of being acquitted before leave is granted under r 4 was endorsed by N Adams J in Greenhalgh v R (at [47]) and Bathurst CJ (with whom James and Johnson JJ agreed) in ARS v R [2011] NSWCCA 266 (at [148]).

12. [66]

    In Greenhalgh v R Basten JA (with whom Button J agreed) suggested (at [14]) that the situations in which leave under r 4 may be granted are broader than cases where the appellant establishes a loss for a chance of acquittal.

13. [67]

    Bathurst CJ (with whom Leeming JA and RA Hulme, Hamill, and N Adams JJ agreed) later went on to say in Obeid v R (2017) 96 NSWLR 155 at 165-166 [24]; [2017] NSWCCA 221:

14. [68]

    The current status of the law, as I apprehend it, is that a miscarriage of justice such that deprives the appellant of a real chance of acquittal is not the only basis for a grant of leave under r 4.

15. [69]

    That requirement as expressed in Picken appears to have been drawn from obiter of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at 319 [72]-[73]; [1999] HCA 37:

16. [70]

    For my part I do not see McHugh J as saying anything more than that it is necessary to establish, in order to obtain leave, that the error of law or miscarriage of justice alleged is reasonably arguable. Where the ground of appeal is that a trial judge ought to have rejected evidence or exercised a discretion to limit the use of evidence where no objection was taken to it at trial, it would only be reasonably arguable that the failure to reject or limit the use of the evidence gave rise to a miscarriage of justice where it can be established that the failure to do so deprived the appellant of a real chance of acquittal.

17. [71]

    Grounds 1, 2, 4 and 6 raise arguable errors of law and grounds 3 and 5, for the reasons below, raise arguable miscarriages of justice. Further, if it is accepted that the primary judge erred in making the direction or if the direction were found to be inadequate, this would be a type of error of law that gives rise to a miscarriage of justice (Greenhalgh v R at [13]).

18. [72]

    In relation to grounds 1-4 and 6, the words of Bathurst CJ in Doyle v R; R v Doyle [2014] NSWCCA 4 are directly relevant (at [428]):

19. [73]

    In this case no determination can be made as to whether the appellant has lost a real chance of acquittal without determining the merits of the grounds of appeal. In any event, the importance of the issues raised by grounds 1-4 and 6 are such that leave to appeal, if required, should be given.

20. [74]

    As to ground 5, it is in the interests of justice that leave be granted. For the reasons below I am satisfied that notwithstanding that there was no objection to the cross-examination of the appellant and witnesses called in his case or to the direction given by the primary judge, the cross-examination, the Crown’s address to the jury, and the judge’s directions were unfairly prejudicial to the appellant and he was deprived of a real chance of acquittal, leading to a substantial miscarriage of justice.

Background to enactment of s 89A of the Evidence Act

1. [75]

   As at 1 September 2013 (when s 89A took effect) s 34 of the Criminal Justice and Public Order Act 1994 (UK) relevantly provided:

2. [76]

   Section 34 of the Criminal Justice and Public Order Act was not the only provision qualifying or repealing an accused’s right to silence. Section 35 of the Criminal Justice and Public Order Act applied where an accused’s guilt was in issue and it did not appear to the court that the accused’s physical or mental condition made it undesirable for him or her to give evidence. Unless the accused or his or her legal representative informed the court that the accused would give evidence then s 35(2) applied. Section 35(2) and (3) provided:

3. [77]

   Section 35 stands in stark contrast to s 89 of the Evidence Act that (subject to s 89A) precludes the drawing of such an adverse inference from an accused’s election not to give evidence.

4. [78]

   Section 36 of the UK Act provided in substance that if a person was arrested by a constable in possession of some object that the constable reasonably believed might be attributable to the person’s participation in the commission of an offence, specified by the constable, and if the constable so informed the person arrested and asked him or her to account for the presence of the object, but the person failed to refuse to do so, then the court or jury could draw such inferences from the failure or refusal to provide such an account as appeared proper.

5. [79]

   Section 37 provided that if a person was arrested at a particular place at or about the time the offence for which he was arrested was alleged to have been committed and the constable investigating the offence believed that the accused’s presence at that place at that time might be attributable to his participation in the commission of the offence and so informed the person and requested him to account for his or her presence, but the person failed or refused to do so, the court could draw such inferences from that failure or refusal to respond to the constable’s inquiry as appeared proper.

6. [80]

   Section 38(2) provided:

7. [81]

   Section 38(3) provided:

8. [82]

   Ms Bashir rightly submitted that the New South Wales Parliament did not go so far as the United Kingdom Parliament in abrogating or qualifying an accused’s right to silence. In particular, s 89 was not amended so as to permit the drawing of an adverse inference against an accused who did not give evidence.

9. [83]

   Nonetheless, the authorities on s 34(1) and (2) of the Criminal Justice and Public Order Act (UK) are inconsistent with an accused’s being entitled to maintain that no adverse inference could be drawn from his or her failure to mention a fact later relied upon in his or her defence because he or she had a right to remain silent.

10. [84]

    In R v Argent [1997] 2 Cr.App.R 27 Lord Bingham CJ said that s 34(2)(d) prescribed six conditions to be met before a jury could draw an adverse inference from an accused’s failure to mention a fact when questioned. Relevantly, the sixth condition was that the accused failed to mention a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when questioned (at 33). Lord Bingham CJ said:

11. [85]

    In R v Condron and Condron [1997] 1 WLR 827 at 835; [1997] 1 Cr.App.R 185 at 195, the Court of Appeal identified five essential elements of a direction to be given under s 35 concerning a defendant’s silence at trial. These were later applied to a direction to be given in relation to an accused’s failure to mention a fact when questioned by the police (R v Petkar [2003] EWCA Crim 2668; [2004] 1 Cr.App.R 22). The essential direction identified in R v Condron and Condron was:

12. [86]

    In Petkar the Court of Appeal summarised the position in relation to a s 34 direction as follows (at [51]):

13. [87]

    In R v Hoare [2005] 1 WLR 1804; [2004] EWCA Crim 784 the Court of Appeal addressed the directions that should be given where an accused declined to answer questions because he or she was given legal advice to remain silent when interviewed. The Court of Appeal approved of the judgment of Kay LJ in giving the judgment of the court in R v Betts [2001] 2 Cr.App.R. 16 that addressed decisions of the European Court of Human Rights. Kay LJ said:

14. [88]

    In R v Hoare the Court of Appeal said:

15. [89]

    Of particular significance in this case is the statement in R v Hoare that a question for a jury is whether the jury is sure that the true reason for the accused’s silence is that he had no, or no satisfactory, explanation consistent with innocence to give, as distinct from whether his reason for maintaining silence was because he had received legal advice to do so. The appellant gave evidence that the reason for his not answering questions was because he had received legal advice not to do so. That evidence was not challenged.

16. [90]

    In R v Beckles [2005] 1 WLR 2829; [2004] EWCA Crim 2766 the Court of Appeal said (at [43]):

17. [91]

    The Court of Appeal approved and applied the judgment delivered by Auld LJ in R v Hoare and continued (at [46]):

18. [92]

    In this case there was no challenge at trial nor on appeal as to whether it was reasonable for the appellant to have relied upon the advice he was given. Nor was it said that the advice was not the true explanation for his silence.

Evidence Amendment (Evidence of Silence) Act 2013

1. [93]

   Both the title of this Act and its preamble (quoted at [24] above) is relevant to the construction of s 89A. Although the heading to s 89A is not part of the text of the Act the name of the Amending Act and its preamble shows that the Act was intended to address “silence during official questioning of persons accused of serious indictable offences” and not merely an accused person’s refusal to answer particular questions.

2. [94]

   In introducing the Evidence Amendment (Evidence of Silence) Bill 2013 the Attorney-General said:

3. [95]

   In the Attorney-General’s Second Reading Speech he said:

Consideration: Ground 6

1. [96]

   Although ground 6 of the notice of appeal was raised belatedly, it was the principal ground relied on in oral submissions and should be dealt with first. As quoted at [41] this ground of appeal was that the direction as to “special caution” was impermissible and should not have been given because it was contrary to the accusatorial process where the appellant was “merely silent”. The appellant’s submission was that s 89A had no work to do where the accused exercised his or her right of silence. No unfavourable inference could be drawn from an accused’s exercising his or her right of silence because that was a fundamental common law right of an accused that could not be displaced, except by express words or necessary intendment.

2. [97]

   But it is clear from the long title to the Evidence Amendment (Evidence of Silence) Act 2013 that s 89A was intended to affect an accused’s right of silence. The express words of the long title to the Evidence Amendment (Evidence of Silence) Act 2013 are contrary to the appellant’s submission that s 89A does not apply to an accused’s refusal to answer any questions, but only to an accused’s failure to respond to particular questions, either generally, or where the accused was questioned about facts which would be peculiarly within the accused’s knowledge and could be expected to be disclosed if the accused were innocent.

3. [98]

   Further, the special caution provided for by s 89A(9) was the caution provided for in the United Kingdom as a result of s 34 of the Criminal Justice and Public Order Act. It is clear from the United Kingdom authorities when s 89A was introduced that it was not arguable that an accused could say that he or she could not reasonably have been expected to mention a fact when questioned because he or she maintained a fundamental common law right of silence.

4. [99]

   This is also confirmed by the Attorney-General’s Second Reading Speech. It follows from the fact that s 89A introduced a special caution in terms that had been approved for the purposes of the Criminal Justice and Public Order Act which at least qualified, if it did not abrogate, an accused’s right of silence.

5. [100]

   The principle of statutory interpretation known as the principle of legality does not have independent application where s 9(1) of the Evidence Act applies. That is, it is a principle or rule of the common law that an accused has the right to silence and that right is not affected by provisions of the Evidence Act except so far as the Act provides otherwise expressly or by necessary intendment. But s 89A expressly provides to the contrary.

6. [101]

   In so far as the appellant relies upon the principle of legality, the observations of Gageler and Keane JJ in Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 are apposite:

7. [102]

   It was not a ground of appeal that s 89A did not apply because no “official questioning” was conducted. The definition of “official questioning” in s 89A(9) makes it clear that it refers to questions put to the defendant by an investigating official. I have reservations as to whether any question was put to the accused by Detective Senior Constable Huisman other than whether the appellant understood that he was under arrest (see above at [22]). The special caution preceded the asking of any questions in relation to the suspected offence. However, it was not a ground of appeal that there was no official questioning within the meaning of s 89A because no questions were put to the appellant in relation to the serious indictable offence to which Detective Senior Constable Huisman referred, or to the offence with which he was charged. No submissions were made on that question and I express no view about it.

Ground 1

1. [103]

   It may be accepted that the offence that Detective Senior Constable Huisman said he suspected (sexual assault (child older than 10 younger than 16)) was a different offence from the offence with which the appellant was charged, even though both offences involved the same conduct, namely having sexual intercourse with the complainant without her consent and the additional element, being the age of the complainant, affected only penalty. The Crown did not dispute this proposition.

2. [104]

   Accepting that to be the correct position, it does not follow that because the police suspected the appellant of having committed a more serious offence of having had sexual intercourse without consent of a child under the age of 16, that the police did not have reasonable cause to suspect the offence of which the appellant was charged.

3. [105]

   Section 89A(2)(a) refers to the giving of the special caution by an investigation official who “at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence”. I doubt that the serious indictable offence in respect of which the special caution is given need necessarily be the same serious indictable offence with which the accused is charged. An obvious example would be an accused who is charged with having inflicted grievous bodily harm and who is given a special caution under s 89A in relation to that offence when questioned by police. If the victim later died and the offence were upgraded to murder, it would be surprising if s 89A had no application.

4. [106]

   It is not necessary to decide this question. Section 89A(2)(a) does not refer to the giving of a special caution by an investigating official who suspected with reasonable cause that the defendant had committed the serious indictable offence with which he was later charged. Rather, it refers to a special caution being given by the investigating official who had reasonable cause to suspect that the defendant had committed the serious indictable offence. Assuming in the appellant’s favour, without deciding, that that must be the same offence with which the appellant was charged, the fact that Detective Senior Constable Huisman suspected the appellant of having committed a more serious offence, because he thought that the complainant was under the age of 16, does not affect the fact that he had reasonable cause to suspect the offence with which the appellant was charged and ultimately convicted.

Grounds 2 and 3

1. [107]

   Ground 2 and 3 are quoted at [40] above.

2. [108]

   As noted above the appellant gave evidence in chief that his reason for exercising his right to silence was that he did so on advice from his legal representative.

3. [109]

   Grounds 2 and 3 assert in substance that because the Crown did not cross-examine the appellant on that evidence it was not open to the Crown to contend that any adverse inference should have been drawn under s 89A from the appellant’s refusal to answer questions and that the jury should have been directed accordingly.

4. [110]

   No such submission was made to the trial judge. But in my view the appellant’s contention is correct. I am also of the view that because the jury was not directed that it was not open to them to draw an adverse inference against the appellant because he refused to answer questions, that the appellant lost a real chance of being acquitted. As noted above, the jury asked for an elaboration of the direction under s 89A. Although they were not given an elaboration (as distinct from a repetition) of that direction, it can be inferred that the jury regarded the direction given as material to their assessment of the credibility of the appellant.

5. [111]

   The judgments of the Court of Appeal of England and Wales in R v Hoare and R v Beckles accept that if the true reason for an accused’s silence is that he genuinely relied on legal advice to maintain silence, then no adverse inference should be drawn against the accused (R v Hoare at [51], [54] and [55]; R v Beckles at [46]).

6. [112]

   Those decisions also raise a question as to whether it was reasonable for the accused to rely on the advice. Although this latter question was not the subject of submissions, I respectfully doubt whether the reasonableness of reliance on the solicitor’s advice, as distinct from the genuineness of reliance on that advice, is the relevant question; although of course an asserted reliance on a solicitor’s advice that is unreasonable would raise the question as to whether reliance on the advice as the reason for not answering questions was genuine. It is in that sense that the jury was to be asked whether in the exercise of their collective common sense it was reasonable for the accused to respond to questions or whether the accused’s true reason for not doing so was that he had no adequate explanation to give (R v Hoare at [52]).

7. [113]

   The appellant gave as his reason for maintaining silence that he had been advised to do so. There was no issue that he had been so advised. It was therefore for the Crown to establish that his true reason for maintaining silence was not because he had been advised to do so, but because he had no satisfactory explanation to give consistent with innocence. The Crown did not assay that task. No issue should have been left to the jury as to whether an adverse inference could be drawn against the appellant for his refusal to answer questions. The jury should have been directed that because the Crown did not challenge the appellant’s explanation that his reason for not responding to questions from the police was that he had been advised not to do so, no adverse inference should be drawn against him.

8. [114]

   At trial the trial advocate for the Crown and counsel for the appellant, in the absence of the jury, debated what directions might be given in relation to s 89A. Counsel for the appellant stated that the accused was not challenged as to his reasons. The parties noted that the appropriate directions had not been considered either in the Supreme Court or the Court of Appeal. The trial advocate stated that “[i]t really comes to a matter of whether or not there’s some recent invention to the alibi”.

9. [115]

   Counsel for the appellant did not ask for a direction that no adverse inference could be drawn from the appellant’s refusal to answer questions. That direction should have been sought both by the appellant and the Crown (having regard to the Crown’s failure to cross-examine the appellant on his evidence as to his reason for not responding to questions). The appellant’s evidence as to his reason was unchallenged. The rule in Browne v Dunn required the Crown to challenge his evidence if it were to be contested (MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329).

Ground 4

1. [116]

   Because of my conclusion in relation to grounds 2 and 3, this is not an appropriate vehicle to consider generally directions that should be given where the Crown relies upon s 89A. The essential deficiency in the directions that were given was as to the absence of a direction as to the appellant’s reliance on the legal advice that he admittedly received as his reason for not answering questions. The directions proposed under ground 4 were not materially different from the directions that were given, but they did not address this question (that was the subject of the separate grounds of appeal 2 and 3).

Ground 5

1. [117]

   As explained above, this ground concerned the Crown’s response to the evidence of the appellant’s good character by putting before the jury that the appellant’s experience with vulnerable children made him aware that such children were vulnerable to sexual assault and were less likely to report it than a less vulnerable child might be expected to do.

2. [118]

   R v MWL [2002] VSCA 221; (2002) 137 A Crim R 282 concerned a judge’s directions to a jury that undermined evidence of the accused’s good character. The trial judge said:

3. [119]

   Buchanan JA, with whose reasons Phillips CJ and Phillips JA agreed, said of this direction:

4. [120]

   The same comments are applicable to this case. The cross-examination of the appellant, and of Mr Sibbald called to give evidence of good character in his defence, was undermined by the Crown’s inviting the jury to view the appellant, apparently a person of good character, with suspicion because he worked with vulnerable children.

5. [121]

   The Crown’s cross-examination of the appellant and Mr Sibbald was not corrected in the trial judge’s directions. (No such direction was sought.) Rather, (as quoted at [37] above) the trial judge quoted, without criticism, the Crown’s address to the jury that the appellant had accepted that “vulnerable children are targeted for sexual abuse because they can be isolated and often do not complain.” The appellant’s acceptance of that proposition was not an answer to the evidence of good character upon which he relied and which was unchallenged. Counsel for the appellant at trial sought to rebut the suggestion made by the Crown by pointing to the fact that there was no evidence of any other complaint against the appellant, notwithstanding his work over many years with other vulnerable children. That point was not addressed in the trial judge’s directions to the jury (at [38] above).

6. [122]

   Notwithstanding that no objection was taken to the trial judge’s directions, nor to the cross-examination by the Crown of the appellant and Mr Sibbald, the cross-examination was unfairly prejudicial to the appellant and that prejudice was not corrected by the directions to the jury, resulting in a miscarriage of justice.

7. [123]

   The miscarriage was not one that could have been cured by a direction even if one were asked for. As in R v MWL, little could have been done to alleviate the prejudicial effect of the cross-examination and summing-up. Nor is this a case where this Court could be satisfied that the jury would inevitably have convicted the appellant had the trial not played out in this way (Domican v R (1992) 173 CLR 555 at 565-566; [1992] HCA 13; Wilde v R (1988) 164 CLR 365 at 371-372; [1988] HCA 6). This is so notwithstanding the strength of the evidence of contemporaneous complaint. The complaint did not go into the detail of the conduct with which the appellant was charged amounting to sexual intercourse. In terms it was that the appellant attempted to have sex with the complainant. That was consistent with the evidence the complainant gave and inconsistent with the appellant’s denial that anything untoward happened, but ultimately the conviction rested on an assessment of the credibility of the complainant and the credibility and character of the appellant. The Crown’s case was not so strong that a conviction was inevitable. For these reasons the proviso in s 6(1) does not apply.

Appropriate order: acquittal or new trial?

1. [124]

   For these reasons the conviction should be set aside. The question then is whether a judgment and verdict of acquittal should be entered pursuant to s 6(1) of the Criminal Appeal Act or whether a new trial should be ordered pursuant to s 8(1) of that Act. In The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106 the High Court held (per Kiefel CJ and Keane J at [83], Nettle and Gordon JJ at [148] and Edelman J at [175] ff) that it is not open to this Court to quash the conviction without making a further order. The Crown sought an order that if the conviction were quashed that there be a new trial.

2. [125]

   In Gilham v R [2012] NSWCCA 131, McClellan CJ at CL summarised the relevant principles as follows:

3. [126]

   There was certainly evidence to justify a conviction, such that prima facie a new trial should be ordered to give effect to the public interest, and the interest of the complainant and the appellant himself, that the question of his guilt be determined by a properly instructed jury on evidence properly adduced (R v Taufahema (2007) 228 CLR 232 at [51]; [2007] HCA 11). An acquittal arising from errors in the conduct of the trial will not vindicate the appellant nor meet the complainant’s entitlement to have her accusation determined by a jury.

4. [127]

   The case against the appellant was primarily a case of word against word that depended upon the credibility of the complainant and the appellant. The complainant’s evidence was strongly supported by the evidence of her contemporaneous complaint to her school friends.

5. [128]

   If this appeal had been able to be heard and determined immediately after the appellant’s conviction in the District Court, I would have set aside the conviction and ordered a new trial.

6. [129]

   But that has not happened. On 15 June 2018 the appellant was sentenced to imprisonment for two years and four months commencing 15 June 2018 and expiring on 14 October 2020, with a non-parole period of one year expiring 14 June 2019. His notice of appeal was filed on 23 January 2019. The appellant had completed his non-parole period before the commencement of the hearing of the appeal. He has completed a significant part of his parole.

7. [130]

   It is not in the interests of justice, in its wider sense, that there be a new trial in relation to the alleged offence that took place more than 30 years ago.

8. [131]

   If the appellant were convicted after a new trial it may be unlikely, having regard to the sentence imposed following his conviction on 9 February 2018 and the sentence served, that a new sentence of imprisonment would be imposed, but that would be a risk. The interest of the appellant in not being put to the expense and worry of a new trial and facing the possibility of a fresh term of imprisonment, is also a factor to be considered.

9. [132]

   Although all sexual assaults are serious, and there was strong evidence of the complainant’s distress, the offence charged was on the lower end of the spectrum of seriousness of possible sexual offences in the Crimes Act.

10. [133]

    Having regard to these competing considerations, of which the most cogent are the time served and the age of the alleged offence, I consider that the interests of justice require that a judgment of acquittal be entered rather than that a new trial be ordered.

11. [134]

    For these reasons I propose the following orders:

    1. (1)

       To the extent necessary, grant the applicant leave to appeal.

    2. (2)

       Order that the appeal be allowed and:

12. [135]

    WRIGHT J: I agree with the orders proposed by White JA for the reasons that his Honour has given.

13. [136]

    WILSON J: For reasons that differ in some regards to those expressed by the Presiding Judge I agree that, insofar as it is necessary to do so, leave should be granted to the appellant to appeal against his conviction for an offence of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW), and his conviction for that offence should be quashed. I do not agree that a verdict of acquittal should be entered; I would remit the matter to the District Court for re-trial.

14. [137]

    As to the issue of leave, although it is often difficult to clearly delineate between a ground of appeal which raises a “question of law alone”, and one which raises mixed questions of law and fact, ground 6 falls into the former category in my opinion. Leave is thus not required to advance ground 6: s 5(1)(a) Criminal Appeal Act 1912 (NSW). Grounds 1 to 5 do raise questions of both law and fact, and leave is required: r 4 Criminal Appeal Rules.

15. [138]

    In determining whether a grant of leave should be given, it is appropriate to apply the principles stated in Picken v R [2007] NSWCCA 319 at [20]-[22], ARS v R [2011] NSWCCA 266 at [148], and Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]. I share the view expressed by N Adams J in Greenhalgh v R [2017] NSWCCA 131 at [47]-[48].

16. [139]

    Since there is reason to conclude that there has been a miscarriage of justice, and that the appellant has lost a chance of acquittal fairly open to him, I would grant leave to appeal on the remaining grounds.

17. [140]

    Having proposed a grant of leave with respect to grounds 1 to 5, I would dismiss ground 1. Section 89A(1) of the Evidence Act 1995 (NSW) refers to “a criminal proceeding for a serious indictable offence”. Section 89A(2) refers to the suspicion held by the investigating official that “the defendant had committed the serious indictable offence”.

18. [141]

    In the circumstances of this case, where the facts said to ground the serious indictable offence the subject of criminal proceedings were the same as those said to ground the serious indictable offence the investigating official had reasonable cause to suspect the appellant had committed, precise equivalence between the two was not necessary. There is no reason to conclude other than that the investigating official had reasonable cause to suspect the appellant of having committed the offence that ultimately proceeded to trial, even though that was not the offence he referred to in giving the special caution. The difference is not significant in this instance, and it did not render invalid the delivery of the caution.

19. [142]

    Grounds 2 and 3, which are related, have more substance and I would uphold each. The appellant exercised his right to silence on the basis of legal advice. That was what was said by his legal representative to Detective Senior Constable Huisman on 12 May 2016 when the appellant declined to be interviewed or make any statement; it was what was said by the appellant in evidence at trial. The Crown did not challenge either of those facts, and the appellant was not cross-examined as to his reason for refusing to be interviewed by the police. It was not put to him, for example, that he took refuge behind the legal advice given to him because, in truth, he could not give answers to the questions that would be asked of him other than answers which would incriminate him.

20. [143]

    In those circumstances it was simply unfair to seek to impugn the accused’s silence, or to rely upon it as a feature relevant to the determination of proof of the charge. A necessary preliminary to any challenge to the appellant’s silence, or to any invitation to the jury to have regard to it in determining whether the Crown had proved its case, was to give the appellant an opportunity to answer the imputations to be made with respect to his silence. It was incumbent upon the Crown to raise the matter with the appellant in cross-examination for that purpose.

21. [144]

    In the absence of any challenge to the fact that the appellant merely followed the advice of his legal representative in declining to answer questions from police, no adverse inference could have been drawn against him, and the jury should not have been invited to do so.

22. [145]

    I agree with the observations of the Presiding Judge as to grounds 4, 5, and 6.

23. [146]

    As to the question of whether the appellant is again called for trial with respect to the allegation against him, the only order I would make in that regard is to remit the matter to the District Court for trial, with a date fixed for mention. Whether the Crown presents a fresh indictment or not is properly a matter for the Director of Public Prosecutions and not, in the circumstances of this matter, for the Court.

24. [147]

    The fact that the appellant has served a significant part of the sentence imposed upon him is but one of the features relevant to determining whether it is in the interests of justice to order a new trial, or enter an acquittal. Whilst that feature of the matter militates in favour of the entry of an acquittal, as does the stress that will be occasioned to the appellant in any retrial, others do not.

25. [148]

    The alleged offence is very serious. It involves an allegation of sexual assault by a man in a position of authority upon a teenager who was vulnerable to abuse in the circumstances in which the assault is said to have occurred. That is, she was alone in a car or van in a relatively isolated spot with the appellant, a much older man whom she understood to have a position of authority and trust at her school and with a local church, and who was exercising supervision over her through a school mandated work placement.

26. [149]

    I do not regard an alleged offence involving digital penetration committed against a sixteen year old girl in these circumstances as “on the lower end of the spectrum of seriousness” of crimes of a like nature.

27. [150]

    Sexual assaults against children and young people are prevalent, and there is a strong public interest in seeing such matters put before a jury, and determined by a jury, on the basis of the evidence, in accordance with law.

28. [151]

    That is so even where, as here, the allegation dates to a time which has long past. It is the ordinary experience of the courts that the harm done by sexual assaults against children and young people is significant, and of long duration: R v MJR (2002) 54 NSWLR 368 at [57] per Mason P. Recognition of harm done is one of the functions of the criminal justice system.

29. [152]

    The Crown case against the appellant appears to be, for an historical allegation of a single incident of sexual assault upon a young person, a relatively strong one. There is clear evidence of the circumstances surrounding the allegation, such that the alleged offence can be fixed in time, and to place, with specificity. The complainant made almost immediate complaint; in effect to the first person in whom she felt able to confide. That evidence is capable of being admitted pursuant to s 66 of the Evidence Act to go to the truth of the statements made or, at least, to support the complainant’s credibility pursuant to s 108.

30. [153]

    Some parts of the complainant’s evidence that others can confirm are confirmed by apparently credible witnesses. There is evidence that the complainant was distressed in the day or days immediately after the alleged assault, consistent with the complaint she made to others. There is evidence that the appellant was present at the complainant’s school in the day or so following the alleged offence, as she asserts that he was, but which the appellant denies.

31. [154]

    This would be a relatively short trial, and the expense of the proceedings modest. Were the appellant to be found guilty by a jury, he would be entitled to have the sentencing court take into account the time already served relevant to the conviction now set aside. The prospect of him being returned to custody, given the expiration of the non-parole period of that sentence – would be negligible.

32. [155]

    The fact of a conviction being recorded, were there to be a verdict of guilty from a jury, is of itself a significant matter, which has a broader importance in the context of child protection.

33. [156]

    Having regard to those features, the interests of justice lie in remitting the matter to the District Court for retrial.