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Court of Criminal Appeal 9 December 2022

CV v R

[2022] NSWCCA 264

Sexual offences

Citation: CV v R [2022] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 9 December 2022
Judge(s): Beech-Jones CJ at CL (with Walton J and Yehia J agreeing)

Background

Following a District Court trial, the applicant was convicted of 12 historical sexual offences committed against five child complainants between 1984 and 2008. All complainants were nieces of the applicant's partner. The applicant was sentenced to an aggregate term of 14 years' imprisonment with a non-parole period of 8 years and 5 months.

During the trial, the Crown played to the jury a recorded police interview (known as an ERISP) in which the applicant had been administered a "special caution" under s 89A of the Evidence Act 1995 (NSW). That caution advised him that, while he was not obliged to say anything, it may harm his defence if he failed to mention something when questioned that he later relied on in court. In the ERISP, the applicant did not mention a debt he alleged was owed to him and his partner by a family member. He later raised that alleged debt as part of his defence at trial, contending it explained why the complainants' family had a motive to fabricate the accusations.

The trial judge raised the potential application of s 89A with the parties. The Crown confirmed it did not intend to rely on that provision, and the applicant's trial counsel did not seek any direction instructing the jury to disregard the special caution or to refrain from drawing an adverse inference from what the applicant failed to mention in his police interview.

  • Whether the trial judge's failure to direct the jury that it could not draw an adverse inference from the applicant's failure to mention certain matters during his ERISP constituted a miscarriage of justice under s 5(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the Crown, through its cross-examination or closing address, impermissibly invited the jury to reason in accordance with s 89A of the Evidence Act
  • Whether the absence of a request for such a direction by trial counsel was relevant to whether a miscarriage of justice occurred

Decision

Beech-Jones CJ at CL (Walton J and Yehia J agreeing) granted leave to appeal but dismissed the appeal. The Court found no miscarriage of justice had occurred in the circumstances.

The Crown made only a single, brief reference to the applicant's failure to mention the alleged debt during the ERISP, seeking a concession from him in cross-examination. That failure was not raised again in either further cross-examination or the Crown's closing address. There was accordingly no realistic prospect that the jury would have adopted the impermissible reasoning contemplated by s 89A.

The trial judge's existing directions, including those concerning the applicant's right to silence and his absence of any obligation to prove his innocence, minimised or eliminated the risk of the jury reasoning in the manner that s 89A was designed to guard against. Those directions served a protective function even without a specific s 89A direction.

Trial counsel's decision not to seek the direction was treated as a significant indicator that no prejudice to a fair trial had in fact arisen. Counsel was aware throughout the trial that s 89A could be engaged, had heard all of the cross-examination, and was present when the Crown disclaimed reliance on the provision. The Court regarded counsel's inaction as a considered professional judgment that no direction was needed.

Orders Made

  • The applicant was granted leave to appeal.
  • The appeal was dismissed.

Key Takeaways

  • Under s 89A of the Evidence Act 1995 (NSW), a "special caution" given during a police interview can, in certain circumstances, permit a jury to draw an adverse inference if an accused fails to mention a fact later relied upon in their defence. However, that reasoning is impermissible unless the Crown actually invites it.
  • In dismissing the appeal, the Court confirmed that a single, fleeting reference to a matter not raised in an ERISP, without any follow-up in cross-examination or address, does not create a realistic risk of the jury engaging in prohibited reasoning.
  • Existing trial directions on the right to silence and absence of any burden on the accused can, in appropriate circumstances, be sufficient to neutralise the risk of impermissible s 89A reasoning, even without a dedicated direction on the provision.
  • Where trial counsel was aware of the potential operation of s 89A throughout the trial and chose not to seek a corrective direction, that deliberate inaction weighs heavily against a finding that a miscarriage of justice occurred on appeal.
  • No ground raised in the appeal involved a question of law alone, meaning leave was required under s 5(1) of the Criminal Appeal Act 1912 (NSW). The Court noted that, under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, the absence of any complaint by trial counsel about the missing direction provided an independent basis to refuse leave, though the Court proceeded to dismiss the appeal on the merits in the interests of finality.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 89, 89A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61L, 61M(1), 61M(2), 61O(2), 66A, 578A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B

Cases:
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
- Cox v R [2022] NSWCCA 66
- Haile v R [2022] NSWCCA 71
- Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66