Hogg v R - [2019] NSWCCA 323

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hogg v R [2019] NSWCCA 323
Hearing dates: 31 July 2019
Decision date: 30 December 2019
Before: White JA at [1];
Wright J at [135];
Wilson J at [136]
Decision:
1. To the extent necessary, grant the applicant leave to appeal.
2. Order that the appeal be allowed and:
a) the appellant’s conviction on 9 February 2018 be quashed; and
b) enter a judgment and verdict of acquittal in respect of the offence charged.

Catchwords:
EVIDENCE — privileges — self-incrimination privilege — consideration of s 89A of the Evidence Act 1995 (NSW) — where accused exercised right to silence during police questioning — where jury directed that an adverse inference from accused’s silence was open — whether s 89A applicable

CRIMINAL PROCEDURE — trial — Browne v Dunn — where accused’s explanation for silence is reliance on legal advice — where explanation unchallenged — whether invitation to draw adverse inference a miscarriage of justice

CRIME — appeals — appeal against conviction —application of proviso — whether substantial miscarriage of justice
CRIMINAL PROCEDURE — trial — cross-examination and summing up —where Crown cross-examination and summing up undermined accused’s evidence of good character — where no remedial direction given — whether miscarriage of justice
Legislation Cited: Crimes Act 1900 (NSW), s 61D
Criminal Appeal Act 1912 (NSW), s 5
Criminal Justice and Public Order Act 1994 (UK), ss 34, 35, 36, 37, 38
Evidence Act 1995 (NSW), ss 89, 89A
Evidence Amendment (Evidence of Silence) Act 2013 (NSW)
Interpretation Act 1987 (NSW), s 21
Cases Cited: ARS v R [2011] NSWCCA 266
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Browne v Dunn (1893) 6 R 67
Domican v R (1992) 173 CLR 555; [1992] HCA 13
Doyle v R; R v Doyle [2014] NSWCCA 4
Gilham v R [2012] NSWCCA 131
Greenhalgh v R [2017] NSWCCA 94
Gulliford v R [2004] NSWCCA 338; (2004) 148 A Crim R 558
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34
Picken v R; R v Picken [2007] NSWCA 319
R v Argent ]1997] 2 Cr.App.R 27
R v Beckles [2005] 1 WLR 2829; [2004] EWCA Crim 2766
R v Betts [2001] 2 Cr.App.R. 16
R v Condron and Condron [1997] 1 WLR 827; [1997] 1 CR APP R 185
R v Hoare [2005] 1 WLR 1804; [2004] EWCA Crim 784
R v MWL [2002] VSCA 221; (2002) 137 A Crim R 282
R v Petkar [2003] EWCA Crim 2668; [2004] 1 CR.APP R 22
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
Wilde v R (1988) 164 CLR 365; [1988] HCA 6
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Yu v R [2018] NSWCCA 201
Category: Principal judgment
Parties: David Benedict Hogg (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
G Bashir SC with M Breeze (Applicant)
D Kell SC with E Jones (Respondent)
Solicitors:
Aston Legal (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2016/377009
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

n/a

Date of Decision:

11 May 2018

Before:

Townsden DCJ

File Number(s):

2016/377009

Judgment

WHITE JA: This is an appeal or application for leave to appeal against conviction.
On 9 February 2018 the appellant was convicted on a charge that:

“On 29 July 1988, at Miller’s Point in the state of New South Wales [he] did have sexual intercourse with [the complainant] without [her] consent, knowing that she was not consenting to the sexual intercourse.”

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

“61D Sexual assault category 3—sexual intercourse without consent
(1) Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 8 years or, if the other person is under the age of 16 years, to penal servitude for 10 years.”

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.
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.
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.
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.
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

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.
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.
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.
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.
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.
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.
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:

“Mr Hogg tried to have sex with me at the Harbour Bridge. She specified where it was that they were in some kind of vehicle at the time. ... She was really visibly distressed about it and that was the gist of what she disclosed to me.”

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.
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.
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.
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.
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”.
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:

“Q.   And you met with the accused and Mr Aston at 1.40pm in the foyer --
A.   I did.
Q.   --of the police station, is that right?
A.   That’s right.
Q.   And at that location you made notes in your official notebook of the conversation you had?
A.   Correct.
Q.   And at that stage you said?
‘I’m Detective Jeroen Huisman. This is Detective James Dinnerville. We’re from Sydney City Police Station. We’re currently investigating the offence of sexual assault (child older than 10, younger than 16) that is alleged to have occurred by you in a motor vehicle on 29 July 1988 at The Rocks with a female person, [XX]. As a result of this investigation and the nature and seriousness of the alleged offence, you are hereby under arrest. Do you understand that?’
A.   That is correct.
Q.   Mr Aston on behalf of the accused answered ‘yes’?
A.   He did.
Q.   To clarify something, at that stage you were investigating what you thought might have involved an offence on a person under 16, is that right?
A.   Correct, that’s right.
Q.   Things were clarified that in fact at the time of the alleged offence the complainant had just turned 16?
A.   Correct.
Q.   But you then went on to say:
‘As this offence falls in the category of serious indictable offence, in the presence of your legal representative, Hugo Aston, I am providing you with a special caution and intend to ask you some questions in relation to that allegation from 1988 involving sexual assault (child older than 10, younger than 16). You do not have to say or do anything. Anything you say or do may be used in evidence against you. It may harm your defence if you fail or refuse to mention something that you later seek to rely upon in court.’
After you said that, Mr Aston again answered on behalf of his client and said ‘yes’. You said to Mr Aston:
‘Would you like to take some further time with your client to discuss those implications?’
And Mr Aston said:
‘Yes, three minutes.’
You and Detective Dinnerville left the interview room and returned a short time later at which time Mr Aston advised that his client declined to discuss the matter further and he said:
‘He realises the implications of doing so. I’m happy to sign off on that.’
Is that correct?
A.   That is correct.
Q.   You provided the notebook containing the record of your conversation to Mr Aston and it was signed off by both you and Mr Aston at that point of time, is that correct?
A.   Correct.”

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:

“89A    Evidence of silence in criminal proceedings for serious indictable offences
(1)    In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact:
(a)    that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and
(b)    that is relied on in his or her defence in that proceeding.
(2)    Subsection (1) does not apply unless:
(a)    a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and
(b)    the special caution was given before the failure or refusal to mention the fact, and
(c)    the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and
(d)    the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.
(3)    It is not necessary that a particular form of words be used in giving a special caution.
(4)    An investigating official must not give a special caution to a person being questioned in relation to an offence unless satisfied that the offence is a serious indictable offence.
(5)    This section does not apply:
(a)    to a defendant who, at the time of the official questioning, is under 18 years of age or is incapable of understanding the general nature and effect of a special caution, or
(b)    if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence.
(6)    The provisions of this section are in addition to any other provisions relating to a person being cautioned before being investigated for an offence that the person does not have to say or do anything. The special caution may be given after or in conjunction with that caution.
Note. See section 139 of this Act and section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002.
(7)    Nothing in this section precludes the drawing of any inference from evidence of silence that could properly be drawn apart from this section.
(8)    The giving of a special caution in accordance with this section in relation to a serious indictable offence does not of itself make evidence obtained after the giving of the special caution inadmissible in proceedings for any other offence (whether or not a serious indictable offence).
(9)    In this section:
official questioning of a defendant in relation to a serious indictable offence means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence.
special caution means a caution given to a person that is to the effect that:
(a)    the person does not have to say or do anything, but it may harm the person’s defence if the person does not mention when questioned something the person later relies on in court, and
(b)    anything the person does say or do may be used in evidence.
Note. The Commonwealth Act does not include this section.”

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:

“An Act to amend the Evidence Act 1995 with respect to inferences that may be drawn from the silence during official questioning of persons accused of serious indictable offences.”

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.
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:

“Q.    And you exercised your right to silence, correct?
A.   I did.
Q.   Why did you do that?
A.   On advice from my legal representative.”

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

“Q.   You knew, because of your discussions with [the complainant] during the week, that she had a very troubled family life?
A.   Yes, and Carlene also mentioned that to me before work experience.
Q.   And indeed, you say that was the reason why you went on this drive with her on Friday evening?
A.   Yes.
Q.   To discuss those matters?
A.   Yes.
Q.   Youth social work, in various forms, if you have a look at your work history, although you’ve diversified, it’s fair to say, it would also be fair to say that it forms the backbone of your life work?
A.   Yes.
Q.   Do you agree with that?
A.   Yes.
Q.   And that a lot of your work involves kids in particular positions of vulnerability?
A.   That’s correct.
Q.   Wards of the state?
A.   Yes.
Q.   Street kids?
A.   Yes.
Q.   Kids that have come from abusive households?
A.   Yes.
Q.   And have otherwise experienced trauma in their lives?
A.   That’s correct.
Q.   Do you agree with me that you know, based on your knowledge and experience working with children over that extended period, that these kinds of vulnerable kids are also very vulnerable to sexual abuse?
A.   Yes.
Q.   And that is because they are easily targeted and isolated, do you agree with that?
A.   Yes.
Q.   And that there is in fact, regrettably, a very low take-up in terms of complaint from these vulnerable kids about sexual abuse that they suffered?
A.   Yeah, I think that would be right.
Q.   And that is one of the reasons, it is thought, that they are targeted by sexual offenders, would you agree with that?
A.   Yes.
Q.   You knew, didn’t you, on your own version when you were in the car by yourself with [the complainant] for an hour and a half, that she fell into that kind of category?
A.   I’m not sure she would have fallen into that category compared to some of the kids that I worked with, I wouldn’t have put her into that category necessarily. I knew she had a troubled family life and home life, I didn’t know the extent of that until we talked a bit about it.”

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.
There was no objection to this cross-examination of the appellant or Mr Sibbald. Other character evidence was called.
In his closing address to the jury the Crown trial advocate said:

“Members of the jury, the last matter that I raise that is not in dispute is this proposition, you might think; that vulnerable children, street kids, who have had disturbed childhoods, who have suffered abuse, whether that be emotional, physical, sexual, are vulnerable, very vulnerable, to sexual abuse. They are easily targeted and isolated and there is often a low take-up of complaint from these kids and, in fact, that’s one of the reasons why they are targeted by sexual offenders in the first place.
The last thing that’s not in dispute, members of the jury, related to that, is that – and you’ve heard evidence from Carlene Fryer, you’ve heard evidence from the Pilgrims, you’ve heard evidence from – I apologise, David Sivart [sic], that, in fact, they have known the accused for a long time. They trust him with their kids or, in the case of Sally, she trusted him as a child. But, you might think, as a matter of common sense, members of the jury, that people – and this is a very regrettable and melancholy state of affairs, in positions within institutions, often lead a chameleon life. You might just think, as a matter of common sense, that people, in these circumstances, often use their good character in a way for other things. There’s no evidence, other than what the complainant says, that this is the case here, but you might think the fact that he has good character doesn’t really determine the matter because it can cut both ways.”

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.
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

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:

“As part of his defence Mr Hogg relies upon his assertion that he was never at The Rocks at any time on 29 July 1988. This was a matter that he did not mention when the allegation was put to him by Detective Huisman and this may, in the words of the caution ‘harm his defence’. This is because you may decide that his assertion is untrue and he has since invented this assertion to support his defence. But you may only draw that conclusion if you are satisfied of four things:
i.   firstly that the prosecution case being presented at the time he was cautioned was such that it called for an answer; and
ii.   secondly he could have reasonably been expected to mention the matter he now relies on at the time he was cautioned; and
iii.   thirdly that the only sensible reason for not raising the assertion that he was never at The Rocks on 29 July 1988 was that he had not yet thought of it; and
iv.   fourthly, that it is fair and proper to draw such a conclusion.

The defence invite you not to draw any adverse conclusion. They argue that he did not tell police that he was never at The Rocks that day because he was following the advice of his legal representative, and further, that he could not be expected to recall at a moment’s notice exactly where he was on a date that was nearly 28 years beforehand in any case. If either of those arguments are, or could be right, then his failure to mention that he was never at The Rocks on that date may have an innocent explanation, and in those circumstances it would not provide any support for the prosecution case.
Mr Hogg gave evidence that he was silent on the advice of his legal representative. If you accept that Mr Hogg was given that advice, it is important to consider this, but it does not automatically prevent you from drawing any conclusion from his silence. This is because someone who is given legal advice has a choice whether or not to accept it, and Mr Hogg was warned that if he did not mention things that were later relied upon at his trial that this may harm his defence.
You should also take into account that the allegation that was put to Mr Hogg is said to have occurred nearly 28 years prior at the time the police spoke to him. Having considered that matter, you should consider whether Mr Hogg could reasonably have been expected to mention the assertion that he was never at The Rocks on that date; an assertion upon which he now seeks to rely.
If, for example, you think that he had or may have had an answer but he generally relied on legal advice which was given to remain silent (whether or not you think it was reasonable for him to do so) you should not draw any conclusion against him. But if, on the other hand, you are sure that Mr Hogg had no answer and merely decided to hide behind the legal advice that he had been given, you would be entitled to draw a conclusion against him, subject to the directions I have given you.
So, if you are sure there is no good reason for not putting forward in the interview the assertion he now relies upon to the effect that he was never at The Rocks on that date, you are entitled to consider that failure as providing some support for the prosecution case, but you must not convict him wholly or mainly on the strength of it.”

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.
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.
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:

“The Crown then raised the fact the accused was, and still is, a trusted member of the community does not assist him because the issue in the trial is whether he sexually assaulted a vulnerable child and not whether he would attack the children of his close friends who trust him and with family home unit is close and stable. It has been accepted by the accused that vulnerable children are targeted for sexual abuse because they can be isolated and often do not complain.”

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

“Counsel for the accused also raised the issue of the accused’s prior good character and that is something you would take into account, including his professional achievements over time, and then [referred] to the witnesses Mr Sibbald, Sally Pilgrim, Tasmin Pilgrim, Carleen Little (previously known as Fryer) and the issue in the fact that witnesses gave evidence they had no problems with their children being around the accused and that the accused has worked with kids over many years. Moreover, it was submitted by counsel for the accused that the accused was not found wanting under cross-examination.”

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

The initial grounds of appeal were as follows:

“1. The trial miscarried as it was necessary for the Crown to prove as a precondition to the application of s 89A(1) (permitting adverse inferences to be drawn from silence) that the official in fact at the time of the special caution had reasonable cause to suspect the serious indictable offence charged on the indictment (s 89(2)(a)) (emphasis added).
2.   The trial miscarried on account of the directions to the jury that they could draw adverse inferences from the silence of the appellant at the police station when it was necessary before such a direction can be given, as a matter of fairness, for the prosecution to expressly put to the accused the reasons relied for the silence (such as the silence owing to a consciousness of guilt) and permit his answer to be given before the jury.
3.   The trial miscarried on account of the prosecutor failing to put to the appellant matters later relied on as supporting adverse inferences that could be drawn from his silence at the police station support of the prosecution case.
4.   The trial miscarried as the directions on the silence of the applicant in the face of questioning following a ‘special caution’ were erroneously inadequate.
5.   The trial miscarried on account of the impermissible introduction and use of evidence to the effect that ‘vulnerable children’ were ‘very vulnerable to sexual abuse’ and were ‘isolated’ and sexually abused by persons in positions of trust and persons in institutions as the complainant was a vulnerable person, that she was vulnerable to sexual abuse from the appellant who was a person trusted on account of his good character, thus improperly undermining the character evidence and introducing highly prejudicial reasoning into the trial.”

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

“6. The direction as to ‘special caution’ was impermissible and should not have been given at all in the trial as:
(a) it was contrary to the accusatorial process in circumstances where the appellant was ‘merely silent’.”

The appellant’s submissions

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:

“... does not affect the operation of a principle or a rule of common law ... in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.”

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:

“159 Relevant to the question of legislative intention is not only the privilege of the person to refuse to answer questions which may incriminate him or her, but also a fundamental principle of the common law. The fundamental principle — that the onus of proof rests upon the prosecution — is as stated in Environment Protection Authority v Caltex Refining Co Pty Ltd, [(1993) 178 CLR 477 at 503 and 550; [1993] HCA 74] as is its companion rule — that an accused person cannot be required to testify to the commission of the offence charged. The prosecution, in the discharge of its onus, cannot compel the accused to assist it [Sorby v Commonwealth (1983) 152 CLR 281 at 294 per Gibbs CJ (‘a cardinal principle’); [1983] HCA 10].
160 The common law principle is fundamental to the system of criminal justice administered by courts in Australia, which, as Hayne and Bell JJ explain, is adversarial and accusatorial in nature. The accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations. This is recognised by the statutory provisions to which their Honours refer. It may be added, as to the trial itself, that the concept of an accusatorial trial where the prosecution seeks to prove its case to the jury has a constitutional dimension [R v Snow (1915) 20 CLR 315 at 323 per Griffith CJ, referring to s 80 of the Constitution; [1915] HCA 90].”

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:

“A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. ...
That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.”

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.
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]). .
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.

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

“i.   Firstly, that the prosecution case being presented at the time he was cautioned was such that it called for an answer; AND
ii.   Secondly, he could have reasonably been expected to mention the matter he now relies on at the time he was cautioned in the circumstances existing at the time ...; AND
iii.   Thirdly, the only sensible reason for not raising the assertion that he was never at The Rocks on 29 July 1988 was that he in truth had no answer to the accusation put to him or none that would stand up to scrutiny or cross-examination ... and the assertion he was never at [T]he Rocks on that date was merely a matter he later fabricated.
iv.   Fourthly, that it is fair and proper to draw such a conclusion.”

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

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.
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.
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.
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.
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.
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.
Rule 4 of the Criminal Appeal Rules provides:

“4 Exclusion of certain matters as grounds for appeal etc
No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

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

“20 Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. There have been varying formulations of the test for identifying a miscarriage of justice in this context (see Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Wilson (2005) 62 NSWLR 346 at 352 [20]).
21 It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted.
22 The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge.”

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]).
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.
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:

“24 Whilst I accept, as Basten JA has pointed out in Greenhalgh v R [2017] NSWCCA 94 at [14], that the exercise of the discretion to grant leave conferred by r 4 cannot be proscribed, the discretion in my opinion will be exercised in the applicant’s favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal: see ARS v R [2011] NSWCCA 266 at [147]; Greenhalgh at [47]–[48] (N Adams J).”

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.
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:

“72 There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant.
73 Whatever else may be said about this case, it is not reasonably arguable that the trial judge must have exercised his discretion in favour of limiting the evidence and that the failure to do so has probably resulted in the appellant being wrongly convicted. That being so, the Court of Criminal Appeal should have refused to give leave to argue the point. However, the Court made no reference to r 4. The appellant may be right when he asserts that it must have given leave although it did not say that it had. In the result, it makes no difference whether his appeal on the s 136 discretion should have been dismissed by applying r 4 or on the ground that, leave being given, the trial judge was not bound to limit the use that the jury could make of the complaint evidence. The appeal fails whatever course is taken.”

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.
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]).
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]):

“However, it must be remembered that the rule is limited to directions or to the admission of evidence. As McHugh J pointed out in Papakosmas supra at [72], a trial judge does not make an error of law where an appellant has failed to object to evidence or failed to ask for a direction. With the greatest respect to his Honour, that may state the position a little too widely. For example, a direction that was incorrect as to the burden of proof or in some other fundamental respect would, in my opinion, constitute an error of law irrespective of whether it was asked that it be corrected. In the present case a misdirection as to the use that could be made of tendency evidence would fall into such a category.” (Emphasis added)

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.
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

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

“34   Effect of accused’s failure to mention facts when questioned or charged.
(1)   Where, in any proceedings against a person for an offence, evidence is given that the accused –
(a)   at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b)   on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact; or
...

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies –
...

(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.

...
(3)   Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
(4)   This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above ‘officially informed’ means informed by a constable or any other such person.
(5)   This section does not-
(a)   prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or
(b)   preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.
...”

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:

“35   Effect of accused’s silence at trial.
...
(2)   Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment [with a jury], in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3)   Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”

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.
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.

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.
Section 38(2) provided:

“38 Interpretation and savings for sections 34, 35, 36 and 37.
...
(2) In sections 34(2), 35(3), 36(2) and 37(2), references to an offence charged include references to any other offence of which the accused could lawfully be convicted on that charge.”

Section 38(3) provided:

“(3) A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).”

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.
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.
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:

“The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant. When reference is made to ‘the accused’ attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. It is for the jury to decide whether the fact (or facts) which the defendant has relied on in his defence in the criminal trial, but which he had not mentioned when questioned under caution before charge by the constable investigating the alleged offence for which the defendant is being tried, is (or are) a fact (or facts) which in the circumstances as they actually existed the actual defendant could reasonably have been expected to mention.”

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:

“1.   The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.
2.   It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice ...
3.   An inference from failure [to give evidence/to mention a fact] cannot on its own prove guilt. That is expressly stated in s.38(3) of the Act.
4.   Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence ...
5.   If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to [cross-examination/scrutiny], they may draw an adverse inference.” (R v Petkar [2003] EWCA Crim 2668 at [47]; [2004] 1 Cr. App.R 22)

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

“51    In the light of the current model JSB direction, it might be said that, in addition to or else in amplification or clarification of the statutory conditions emphasised in Argent and the five essentials emphasised in Cowan and Condron, the following matters should be set before a jury in a well-crafted and careful direction:
(i)    The facts which the accused failed to mention but which are relied on in his defence should be identified: see para.2 of the model direction and Chenia at paras 87/89, where Clarke L.J. said that this requirement must be approached in a common-sense way.
(ii)    The inferences (or conclusions, as they are called in the direction) which it is suggested might be drawn from failure to mention such facts should be identified, to the extent that they may go beyond the standard inference of late fabrication: see para.2 of the model direction.
(iii)    The jury should be told that, if an inference is drawn, they should not convict ‘wholly or mainly on the strength of it’: see para.2 of the model direction and Murray v United Kingdom (1996) 22 E.H.R.R. 29 at 60, para.47. The first of those alternatives (‘wholly’) is a clear way of putting the need for the prosecution to be able to prove a case to answer, otherwise than by means of any inference drawn. The second alternative (‘or mainly’) buttresses that need.
(iv)    The jury should be told that an inference should be drawn ‘only if you think it is a fair and proper conclusion’: para.3 of the model direction. This is not stated in the statute, but is perhaps inherent in that part of it emphasised in Lord Bingham's sixth condition. In R. v McGarry [1999] 1 Cr.App.R. 377 at 383G this court glossed that condition as requiring a jury ‘not arbitrarily to draw adverse inferences’.
(v)    An inference should be drawn ‘only if … the only sensible explanation for his failure’ is that he had no answer or none that would stand up to scrutiny: para.3 of the model direction, reflecting Lord Taylor's fifth essential in Cowan. In other words the inference canvassed should only be drawn if there is no other sensible explanation for the failure. That is analogous to the essence of a direction on lies.
(vi)    An inference should only be drawn if, apart from the defendant's failure to mention facts later relied on in his defence, the prosecution case is ‘so strong that it clearly calls for an answer by him’: para.3 of the model direction. This is a striking way to put the need, reflected in Lord Taylor's third and fourth essentials in Cowan, for a case to answer. A note, note 16, to the JSB guideline explains that it reflects ‘a cautious approach’.
(vii)    The jury should be reminded of the evidence on the basis of which the jury are invited not to draw any conclusion from the defendant's silence: see para.4 of the model direction and R. v Gill [2001] 1 Cr.App.R. 160 at paras 30/31. This goes with point (iv) above, because it is only after a jury has considered the defendant's explanation for his failure that they can conclude that there is no other sensible explanation for it.
(viii)    A special direction should be given where the explanation for silence of which evidence has been given is that the defendant was advised by his solicitor to remain silent: see para.5 of the model direction.”

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:

“53 ... In the light of the judgment in Condron v. United Kingdom it is not the quality of the decision but the genuineness of the decision that matters. If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no, or no satisfactory, answer to give then no inference can be drawn.
54 That conclusion does not give a licence to a guilty person to shield behind the advice of his solicitor. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts. A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer's advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.” (Emphasis in original.) (R v Hoare at [45].)

In R v Hoare the Court of Appeal said:

“51    In our view, there is no inconsistency between the approach of Kay LJ in R v Betts and that of Laws LJ in R v Howell and R v Knight. As we have said, it is plain from Kay LJ's judgment that, even where a solicitor has in good faith advised silence and a defendant has genuinely relied on it in the sense that he accepted it and believed that he was entitled to follow it, a jury may still draw an adverse inference if it is sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give. That is of piece with Laws LJ's reasoning in R v Howell and R v Knight that genuine reliance by a defendant on his solicitor's advice to remain silent is not in itself enough to preclude adverse comment.
52    The critical test, which all three judgments underscore, is that as formulated in section 34 of the Criminal Justice and Public Order Act 1994, namely whether a defendant failed to mention in interview a fact ‘which in the circumstances existing at the time’ (he) ‘could reasonably have been expected to answer’. What is reasonable in the circumstances, as Lord Bingham CJ indicated in R v Argent [1997] 2 Cr App R 27, 33, is a matter for the jury ‘in the exercise of their collective common sense’-an objective test, but by reference to the circumstances of the case, including those known to the defendant. The judge's direction to the jury that they should consider in the case of each defendant whether it was reasonable for him to rely on his solicitor's advice to remain silent, or whether he had no adequate explanation to give and simply latched on to that advice as a convenient shield, is just how Kay LJ put the matter in R v Betts, and accords with the observations of Laws LJ in R v Howell and R v Knight. The direction is also consistent with para 5 of the current JSB specimen direction, and with the dicta, so far as they went on this issue, of the European court in Condron v United Kingdom 31 EHRR 1 and Beckles v United Kingdom 36 EHRR 162 .
53    We venture the following observations about the rationale of section 34 of the 1994 Act. Its purpose and effect are to qualify a defendant's otherwise general right to silence, a right for the exercise of which, but for section 34 of the Criminal Justice and Public Order Act 1994, he needs no justification, whether in the form of legal advice or otherwise. The nature of the section 34 qualification is that he may, in the circumstances specified and through the medium of the court drawing an adverse inference against him, be penalised for exercising the right. The whole basis of section 34 of the 1994 Act, in its qualification of the otherwise general right of an accused to remain silent and to require the prosecution to prove its case, is an assumption that an innocent defendant-as distinct from one who is entitled to require the prosecution to prove its case-would give an early explanation to demonstrate his innocence. If such a defendant is advised by a solicitor to remain silent, why on earth should he do so, unless because of circumstances of the sort aired by the court in R v Roble [1997] Crim LR 449, R v Argent [1997] 2 Cr App R 27 and R v Howell [2003] Crim LR 405, he might wrongly inculpate himself?
54    It is not the purpose of section 34 of the 1994 Act to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts. The section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled, to rely on legal rights of which his solicitor has advised him. Legal entitlement is one thing. An accused's reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is-a distinction with which Professor Di Birch in her commentary in the Criminal Law Review in R v Howell appears not to have grappled, in asserting that the question must surely be, ‘Has the suspect genuinely relied on his solicitor's advice?’
55    The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because he had no or no satisfactory explanation to give. For this purpose, but only for this purpose, section 34 of the 1994 Act in its provision for the drawing of an adverse inference, qualifies a defendant's right to silence. However, it is still for the prosecution to prove its case, section 38(3) of the 1994 Act ensures that a finding of a case to answer or a conviction shall not be based solely on such an inference.
...
59    It follows that legal advice by itself cannot preclude the drawing of an adverse inference, contrary to the suggestion of the editors of the current edition of Archbold's Criminal Pleading, Evidence and Practice, para 15-423. Nor, contrary to their further suggestion in that paragraph is the court's decision in R v Betts [2001] 2 Cr App R 257 or the current specimen direction, inconsistent with the reasoning of the court in R v Condron (William) [1997] 1 WLR 827, namely that legal advice cannot ‘by itself’ prevent an adverse inference being drawn, though it is ‘a very relevant’ circumstance to take into account in deciding whether the defendant could reasonably have been expected to mention the fact relied on at the time.” (Emphasis added.)

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

“Where the reason put forward by a defendant for not answering questions is that he is acting on legal advice, the position is singularly delicate. On the one hand the courts have not unreasonably wanted to avoid defendants driving a coach and horses through section 34 and by so doing defeating the statutory objective. Such an explanation is very easy for a defendant to advance and difficult to investigate because of legal professional privilege. On the other hand, it is of the greatest importance that defendants should be able to be advised by their lawyer without their having to reveal the terms of that advice if they act in accordance with that advice. Again, there have been a number of authorities. Here Mr Jennings relied on a series of cases including R v Inman [2002] EWCA Crim 1950 and R v Chenia [2003] 2 Cr App R 830. R v Chenia, like this case, was a case where the defendant was purporting to rely on a solicitor's advice when the Human Rights Act 1998 was not in force.”

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

“In our judgment, in a case where a solicitor’s advice is relied upon by the defendant, the ultimate question for the jury remains under section 34 whether the facts relied on at the trial were facts which the defendant could reasonably have been expected to mention at interview. If they were not, that is the end of the matter. If the jury consider that the defendant genuinely relied on the advice, that is not necessarily the end of the matter. It may still not have been reasonable for him to rely on the advice, or the advice may not have been the true explanation for his silence. In R v Betts [2001] 2 Cr App R 257, Kay LJ was particularly concerned, at para 54, with ‘whether or not the advice was truly the reason for not mentioning the facts.’ In the same paragraph he also says:
‘A person, who is anxious not to answer questions because he has not or no adequate explanation to offer, gains no protection from his lawyer’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.’
If, in the last situation, it is possible to say that the defendant genuinely acted upon the advice, the fact that he did so because it suited his purpose may mean he was not acting reasonably in not mentioning the facts. His reasonableness in not mentioning the facts remains to be determined by the jury. If they conclude he was acting unreasonably they can draw an adverse inference from the failure to mention the facts.”

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

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

“We are today introducing a package of reforms to allow judges to tell juries that they can draw an unfavourable inference when an accused criminal raises a defence at trial that he or she has never disclosed – trial by ambush.
These reforms introduce a special police caution for suspects of serious crime and will require the prosecution and defence to disclose the key parts of their case in a timely way before the trial. The first part of the package of reforms is the Evidence Amendment (Evidence of Silence) Bill 2013, which amends the Evidence Act 1995 to allow a jury to draw an unfavourable inference against an accused who remained silent during the official police questioning but later produces evidence at trial which the accused could reasonably have given to police when first interviewed.”

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

“I will deal with the Evidence Amendment (Evidence of Silence) Bill. The provisions in the bill are targeted at seeking information in the first stages of an investigation from a suspect during police questioning. ...
...
I say it is simply a matter of common sense that a jury should be allowed to consider drawing an unfavourable inference against such a defendant who relies on something at trial the defendant could have mentioned during questioning, subject to certain safeguards. ...
... Under the provisions of this bill an unfavourable inference may be drawn in relation to the failure or refusal to mention a fact during official questioning. It does not require the failure or refusal to be in relation to a specific question or representation from the investigating official.
This will prevent a defendant from using silence to hide behind the absence of a particular question or representation being put to elicit the fact later relied on. ... The onus placed on the defendant to mention all relevant facts is balanced by the safeguard that it must have been reasonable to mention the fact during questioning.”

Consideration: Ground 6

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.
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.
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.
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.
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.
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:

“[313] Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve [Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 340 [43]; [2000] HCA 7]”.

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

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.
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.
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.
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

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

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

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.
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:

"Consistent with what I have just told you it comes as no surprise to you to learn, of course, that generally speaking crimes of a sexual nature as are alleged in this trial are by and large secret crimes by their very nature. In other words you seldom would expect to hear from an eye witness to crimes involving sexual abuse of children, and we know from our experience that in this day and age or even over the decades that so-called pillars of society have been involved with sexual crimes involving children, leaders of our community, politicians, even members of the clergy, and people are often shocked by those revelations, believing that those sort of people have led exemplary lives. They do on the surface, but we now we (sic) know from our experience that sometimes these people lead double lives."

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

“10 An important part of the applicant's case was that because he was a man of good character he was unlikely to have committed the offences with which he was charged. The trial judge undermined that defence and did so in a manner which was likely to cause a miscarriage of justice. The trial judge invited the jury to view persons of apparently good character with suspicion. ...
11 Counsel for the applicant at trial took no exception to this part of the charge. In Clarke v Johnstone [[1986] VR 643], where the Full Court followed the general rule that an applicant for leave to appeal against conviction is not allowed to rely on appeal on a criticism of the charge, which had not been taken by way of exception at the trial, the Court spoke of the duty of counsel ‘to ensure that any errors are drawn to the attention of the trial judge so that he may correct them.’ [Above at 661. See also General Motors-Holdens Pty Ltd v Moularas (1964) 111 CLR 234 at 242 per Barwick CJ]. In the present case, I doubt that anything the trial judge could have said would have undone the effect of his statements rather than emphasize their damaging effect. I regard the statements as so clearly damaging to the applicant's case that the failure to take exception does not lead me to conclude that there was no injustice because counsel steeped in the atmosphere of the trial saw no error. In my view, the statements did lead to a miscarriage of justice.”

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.
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).
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.
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?

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.

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

“649    The relevant principles were discussed in Reid v R [1980] 1 AC 343 and Fowler: R v Anderson (1991) 53 A Crim R 421 at 453 (Gleeson CJ). The overriding consideration is whether the interests of justice require a new trial: Fowler at 630. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v R [2000] HCA 43; (2001) 201 CLR 603 at [104]. The court determines where the interests of justice lie by considering various factors, including:
•   the public interest in the due prosecution and conviction of offenders (R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49]; Anderson at 453; Reid at 349);
•   the seriousness of the alleged crimes (Anderson at 453; Reid at 350; Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] (Johnson J));
•   the strength of the Crown case (Anderson at 453);
•   the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision (Taufahema at [51]; Anderson at 453; Reid at 350);
•   the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused (Taufahema at [55]; Parker v R [1997] HCA 15; (1997) 186 CLR 494 at 520 (Dawson, Toohey and McHugh JJ); Anderson at 453);
•   whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or ‘patch up’ a defective case or to present a case significantly different to that presented to the jury in the previous trial (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518; King v R [1986] HCA 59; (1986) 161 CLR 423 at 433 (Dawson J); Parker at 520 (Dawson, Toohey and McHugh JJ); Reid at 350; Fowler at 630; Anderson at 453; Taufahema at [59]);
•   the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial (Spies at [103]; Reid at 350);
•   whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v R [1992] HCA 14; (1992) 173 CLR 572 at 590 (McHugh J));
•   the expense and length of a further trial (Reid at 350);
•   whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; (1981) A Crim R 5 at 367–68 (King CJ)); and
•   whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300 ; (2006) 14 VR 512 at [27]).”

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.
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.
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.
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.
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.
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.
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.
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.
For these reasons I propose the following orders:

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

Order that the appeal be allowed and:

the appellant’s conviction on 9 February 2018 be quashed; and

judgment and verdict of acquittal be entered.

WRIGHT J: I agree with the orders proposed by White JA for the reasons that his Honour has given.
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.
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.
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], ARSv R [2011] NSWCCA 266 at [148], and Obeidv 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].
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.
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”.
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.
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.
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.
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.
I agree with the observations of the Presiding Judge as to grounds 4, 5, and 6.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Having regard to those features, the interests of justice lie in remitting the matter to the District Court for retrial.

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Decision last updated: 30 December 2019

Medium Neutral Citation:	Hogg v R [2019] NSWCCA 323
Hearing dates:	31 July 2019
Decision date:	30 December 2019
Before:	White JA at [1]; Wright J at [135]; Wilson J at [136]
Decision:	1. To the extent necessary, grant the applicant leave to appeal. 2. Order that the appeal be allowed and: a) the appellant’s conviction on 9 February 2018 be quashed; and b) enter a judgment and verdict of acquittal in respect of the offence charged.
Catchwords:	EVIDENCE — privileges — self-incrimination privilege — consideration of s 89A of the Evidence Act 1995 (NSW) — where accused exercised right to silence during police questioning — where jury directed that an adverse inference from accused’s silence was open — whether s 89A applicable CRIMINAL PROCEDURE — trial — Browne v Dunn — where accused’s explanation for silence is reliance on legal advice — where explanation unchallenged — whether invitation to draw adverse inference a miscarriage of justice CRIME — appeals — appeal against conviction —application of proviso — whether substantial miscarriage of justice CRIMINAL PROCEDURE — trial — cross-examination and summing up —where Crown cross-examination and summing up undermined accused’s evidence of good character — where no remedial direction given — whether miscarriage of justice
Legislation Cited:	Crimes Act 1900 (NSW), s 61D Criminal Appeal Act 1912 (NSW), s 5 Criminal Justice and Public Order Act 1994 (UK), ss 34, 35, 36, 37, 38 Evidence Act 1995 (NSW), ss 89, 89A Evidence Amendment (Evidence of Silence) Act 2013 (NSW) Interpretation Act 1987 (NSW), s 21
Cases Cited:	ARS v R [2011] NSWCCA 266 Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Browne v Dunn (1893) 6 R 67 Domican v R (1992) 173 CLR 555; [1992] HCA 13 Doyle v R; R v Doyle [2014] NSWCCA 4 Gilham v R [2012] NSWCCA 131 Greenhalgh v R [2017] NSWCCA 94 Gulliford v R [2004] NSWCCA 338; (2004) 148 A Crim R 558 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 Picken v R; R v Picken [2007] NSWCA 319 R v Argent ]1997] 2 Cr.App.R 27 R v Beckles [2005] 1 WLR 2829; [2004] EWCA Crim 2766 R v Betts [2001] 2 Cr.App.R. 16 R v Condron and Condron [1997] 1 WLR 827; [1997] 1 CR APP R 185 R v Hoare [2005] 1 WLR 1804; [2004] EWCA Crim 784 R v MWL [2002] VSCA 221; (2002) 137 A Crim R 282 R v Petkar [2003] EWCA Crim 2668; [2004] 1 CR.APP R 22 R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Wilde v R (1988) 164 CLR 365; [1988] HCA 6 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Yu v R [2018] NSWCCA 201
Category:	Principal judgment
Parties:	David Benedict Hogg (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: G Bashir SC with M Breeze (Applicant) D Kell SC with E Jones (Respondent) Solicitors: Aston Legal (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2016/377009
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: n/a Date of Decision: 11 May 2018 Before: Townsden DCJ File Number(s): 2016/377009