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Court of Criminal Appeal 30 December 2019

Hogg v R

[2019] NSWCCA 323

Also reported as (2019) 101 NSWLR 524
Sexual offences
EVIDENCE — PRIVILEGES — SELF

Citation: Hogg v R [2019] NSWCCA 323
Court: Court of Criminal Appeal, NSW
Date: 30 December 2019
Judges: White JA (with Wright J and Wilson J agreeing)

Background

The appellant, a former school chaplain and Baptist youth minister, was convicted in February 2018 of sexual assault arising from an incident alleged to have occurred on 29 July 1988. The complainant, then a 16-year-old student, alleged that the appellant digitally penetrated her without consent while she was in his car parked near the Sydney Harbour Bridge. The complaint was not made to police until 2010, with formal proceedings commencing from 2015.

When police interviewed the appellant in May 2016, they issued him a "special caution" under s 89A of the Evidence Act 1995 (NSW). Acting on legal advice, he declined to answer questions. At trial, the Crown did not challenge the appellant's stated reason for his silence, namely that he was following legal advice.

The appeal raised two main sets of grounds: the first concerned the directions given to the jury permitting adverse inferences to be drawn from the appellant's silence; the second concerned the Crown's cross-examination and address to the jury on the question of the appellant's good character.

  • Whether s 89A of the Evidence Act permitted the jury to draw an adverse inference from the appellant's exercise of his right to silence when his explanation for that silence (reliance on legal advice) was unchallenged by the Crown
  • Whether the failure to challenge the appellant's explanation for his silence, under the rule in Browne v Dunn, meant that it was not open for an adverse inference to be invited or drawn
  • Whether the Crown's cross-examination of the appellant and a character witness, combined with the Crown's address and the trial judge's directions, unfairly undermined the appellant's good character evidence without adequate remedial direction
  • Whether any of these errors constituted a miscarriage of justice warranting the setting aside of the conviction
  • Whether a judgment of acquittal or a new trial should follow

Decision

On the right to silence and s 89A directions

Section 89A of the Evidence Act departs from the general rule in s 89, which prohibits adverse inferences from silence. Under s 89A, where a special caution has been given, the jury may draw an adverse inference if the accused failed to mention something during questioning that he or she later relied upon in court. However, White JA concluded that it was not open to the jury to draw such an inference in these circumstances. The Crown had not challenged the appellant's explanation that he remained silent on legal advice, and the rule in Browne v Dunn required it to do so before inviting the jury to treat that silence adversely. Because the explanation was unchallenged, no legitimate basis existed for the adverse inference direction.

White JA examined English authorities on comparable provisions and confirmed that where a defendant gives an explanation for silence that is not itself discredited, it is not open to the jury to draw an adverse inference from the silence. The unchallenged nature of the legal-advice explanation made the direction to the jury on this point a miscarriage.

On good character

The Crown's cross-examination of the appellant and his character witness, together with the Crown's address to the jury, was found to have impermissibly undermined the appellant's good character in ways that were unfairly prejudicial. No adequate remedial direction was given by the trial judge. White JA held that this compounded the miscarriage and deprived the appellant of a real chance of acquittal.

On remedy

The Court set aside the conviction, finding a substantial miscarriage of justice. White JA proposed entering a judgment of acquittal rather than ordering a new trial, noting that the appellant's sentence had been substantially served. Wright J and Wilson J disagreed on the remedy, however, and both favoured a retrial. Because the majority favoured retrial, the matter was remitted to the District Court for a new trial rather than an acquittal being entered.

Orders Made

  • Conviction set aside
  • Matter remitted to the District Court for retrial

Key Takeaways

  • Under s 89A of the Evidence Act 1995 (NSW), an adverse inference from silence is not available where the accused provides an explanation for that silence (such as reliance on legal advice) and the Crown does not challenge that explanation at trial.
  • The rule in Browne v Dunn has practical significance in the s 89A context: if the Crown intends to invite the jury to disbelieve an accused's explanation for silence, it must put that challenge to the accused, failing which the adverse inference direction will be impermissible.
  • Where good character evidence is called by the accused, the Crown's cross-examination and closing address must not undermine that evidence in an unfair or impermissible manner without the trial judge giving corrective directions.
  • A combination of errors, each affecting the fairness of the trial, can together constitute a substantial miscarriage of justice sufficient to set aside a conviction even where no objection was taken at trial.
  • On the question of remedy, the majority of the Court of Criminal Appeal held that a strong Crown case and significant public interest in the proper determination of historical sexual assault allegations by a jury weighed in favour of a retrial rather than an acquittal.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 89, 89A
- Evidence Amendment (Evidence of Silence) Act 2013 (NSW)
- Crimes Act 1900 (NSW), s 61D
- Criminal Appeal Act 1912 (NSW), s 5
- Interpretation Act 1987 (NSW), s 21
- Criminal Justice and Public Order Act 1994 (UK), ss 34–38

Cases
- Browne v Dunn (1893) 6 R 67
- Azzopardi v The Queen (2001) 205 CLR 50
- Petty v The Queen (1991) 173 CLR 95
- Domican v R (1992) 173 CLR 555
- Lee v New South Wales Crime Commission (2013) 251 CLR 196
- Papakosmas v The Queen (1999) 196 CLR 297
- MWJ v The Queen (2005) 80 ALJR 329
- Obeid v R (2017) 96 NSWLR 155
- ARS v R [2011] NSWCCA 266
- 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) 148 A Crim R 558
- Picken v R [2007] NSWCA 319
- R v Argent [1997] 2 Cr App R 27
- R v Beckles [2004] EWCA Crim 2766
- R v Betts [2001] 2 Cr App R 16
- R v Condron and Condron [1997] 1 WLR 827
- R v Hoare [2004] EWCA Crim 784
- R v MWL [2002] VSCA 221