Citation: Van der Vegt v R [2016] NSWCCA 279
Court: Court of Criminal Appeal, New South Wales
Date: 2 December 2016
Judge(s): Hoeben CJ at CL, Campbell J, Button J
Background
The applicant was convicted in the District Court of New South Wales on child pornography offences following the discovery of DVDs containing child sexual abuse material in a locked gun safe at his home. During a police search, the applicant spoke freely with officers throughout, offering explanations about his ex-wife's access to the safe and her alleged capacity to have planted the material. He never refused to answer questions.
At trial, the applicant's defence rested on two discrete explanations: that child pornography found on his computer had been downloaded inadvertently and deleted by his ex-wife, and that he had no knowledge of the DVDs in the gun safe, which he said his ex-wife could have planted there. His ex-wife gave contrary evidence, denying any knowledge of or access to the gun safe, while admitting she had entered the home without permission on one occasion and had deleted material from the computer.
The applicant sought leave to appeal his conviction, arguing that the Crown Prosecutor's closing address to the jury invited an adverse inference from his silence, in breach of the right to silence protected under the Evidence Act 1995 (NSW).
Legal Issues
- Whether the Crown Prosecutor's final address invited the jury to draw an adverse inference from the applicant's silence, contrary to sections 89 and 89A of the Evidence Act 1995 (NSW) and the principles established in Petty v The Queen and Azzopardi v The Queen
- Whether any such conduct, if established, constituted a miscarriage of justice warranting the Court's intervention under section 6 of the Criminal Appeal Act 1912 (NSW)
Decision
Button J, with whom Hoeben CJ at CL and Campbell J agreed, dismissed the appeal. The central issue was whether the Crown Prosecutor had improperly asked the jury to draw adverse inferences from the applicant's silence during the police search, specifically from his failure to say "I've never seen that before" when the DVDs were laid out. Button J concluded that this submission was not directed at the applicant's silence at all.
Rather, Button J found that the prosecutor was drawing the jury's attention to an inconsistency between two positive versions given by the applicant: his statements to police during the search and his evidence at trial that he had no knowledge of the discs. There was no period of silence to which an adverse inference could attach. The Crown's submission was properly characterised as an invitation to find the trial version inconsistent with the version given to police, which is a permissible basis for inviting the jury toward a verdict of guilty.
Campbell J added that the applicant had not exercised his right to silence at any point during the police search. He also noted that the Crown Prosecutor's address suffered from some tendency to conflate the two distinct explanations the applicant had offered for the computer material and the safe material, but concluded that this did not amount to a departure from the standard of a fair trial. The issues for the jury were adequately defined, and the jury was appropriately directed on the onus and standard of proof.
Both Button J and Campbell J observed that neither defence counsel nor the trial judge interpreted the prosecutor's address as an attack on the right to silence. This silence from experienced participants in the trial was treated as reinforcing the conclusion that no improper inference was invited.
Orders Made
- Leave to appeal granted
- Appeal against conviction dismissed
Key Takeaways
- A Crown Prosecutor's submission inviting a jury to compare two inconsistent positive versions given by an accused is not an infringement of the right to silence; the right is only engaged where an adverse inference is drawn from actual silence.
- Where an accused freely answers all questions during a police search and never refuses to respond, there is no exercise of the right to silence to which the protections in sections 89 and 89A of the Evidence Act 1995 (NSW) apply.
- The Court of Criminal Appeal confirmed that the conduct of defence counsel and the trial judge in not objecting to the prosecutor's final address was relevant, both to procedural rules under rule 4 of the Criminal Appeal Rules 1912 (NSW) and to the substantive interpretation of what the prosecutor actually argued.
- No miscarriage of justice was established where the jury received conventional and adequate directions on the presumption of innocence, the onus of proof, and the standard beyond reasonable doubt, and where the credibility contest between the applicant and his ex-wife was a matter squarely within the jury's province to resolve.
- In dismissing the appeal, the Court did not need to consider either rule 4 of the Criminal Appeal Rules or the proviso in section 6 of the Criminal Appeal Act 1912 (NSW), as no error was identified in the conduct of the trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules 1912 (NSW), r 4
- Evidence Act 1995 (NSW), ss 89, 89A
Cases:
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3