Citation: Ward v R [2022] NSWCCA 271
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2022
Judges: Adamson J (leading judgment); Campbell J; McNaughton J
Background
The applicant was convicted by a District Court jury on three counts arising from sexual offences committed against a young boy aged between five and six years. The offences occurred between July 2008 and July 2010. The counts included an act of indecency and two counts of sexual intercourse with a child under ten years, contrary to the Crimes Act 1900 (NSW).
The complainant gave evidence via a recorded police interview conducted in 2018, when he was fourteen, and through pre-recorded evidence given in 2019. Witnesses also included the complainant's mother, his sister, the applicant's father, and the investigating detective.
A significant evidentiary issue arose during the detective's testimony. He stated that the applicant had been offered the opportunity to participate in a recorded interview after being charged and had declined to do so, as was his right. No direction was given to the jury at that point, or sought by trial counsel, about the applicant's right to silence and the prohibition on drawing adverse inferences from its exercise.
Legal Issues
- Whether the trial judge's failure to direct the jury about the applicant's right to silence, either when the evidence was led or in the summing-up, caused a miscarriage of justice
- Whether the trial judge failed to give an adequate forensic disadvantage direction under s 165B of the Evidence Act 1995 (NSW) in response to the jury's question about the timeline of a school carnival
- Whether the jury's verdicts were unreasonable or unsupported by the evidence
Decision
Ground 1: Right to silence direction
The Court accepted that evidence of the applicant's refusal to participate in a police interview should not have been led at all, as it was irrelevant and inadmissible under s 89 of the Evidence Act 1995 (NSW). Campbell J stated this plainly, with reference to Petty v The Queen. The Court also held that a direction about the right to silence, and the prohibition on drawing adverse inferences from its exercise, should be given both when such evidence is led and again in the summing-up. The trial judge gave only a hypothetical direction in the summing-up rather than a direct one.
However, the failure to give a timely and adequate direction did not, in the circumstances, amount to a miscarriage of justice. The trial judge did direct the jury on the presumption of innocence, the burden of proof, and gave a Liberato direction (addressing how to approach conflicting accounts). Critically, the applicant's trial counsel neither objected to the evidence being led nor sought a right to silence direction. The Court applied De Silva v The Queen, observing that experienced trial counsel's failure to seek the direction indicated nothing prejudicial to a fair trial had occurred.
Ground 2: Forensic disadvantage direction
The applicant's trial counsel did not seek a s 165B direction on forensic disadvantage caused by delay. Because s 165B of the Evidence Act expressly prohibits a trial judge from giving such a direction unless the defendant requests it, the absence of a request meant the direction could not lawfully be given. The Court further noted that no specific forensic disadvantage had been identified, which independently undermined the ground.
Ground 3: Unreasonable verdict
Each member of the Court independently reviewed the trial record and assessed the evidence. All three judges concluded that, taking into account the matters raised by the applicant, it was open to the jury to be satisfied of guilt beyond reasonable doubt on each count. The verdicts were not unreasonable.
Orders Made
No orders were made in this decision.
Key Takeaways
- A direction on the accused's right to silence, and the prohibition on adverse inferences from its exercise, should be given both when relevant evidence is led and during the summing-up. However, failure to give such a direction does not automatically constitute a miscarriage of justice.
- Evidence of an accused person's refusal to participate in a post-charge recorded interview is inadmissible under s 89 of the Evidence Act 1995 (NSW), as confirmed by the Court in applying the principles from Petty v The Queen.
- Under s 165B of the Evidence Act, a trial judge is prohibited from giving a forensic disadvantage caused by delay direction unless the defendant requests one. Where trial counsel makes no such request, the ground cannot succeed on appeal.
- Experienced trial counsel's failure to seek a particular direction, or to object to inadmissible evidence, is a relevant consideration when assessing whether a miscarriage of justice occurred. The Court applied De Silva v The Queen in reaching this conclusion.
- In dismissing the unreasonable verdict ground, the Court conducted an independent review of the evidence and confirmed that the jury's findings on all three counts were open on the evidence beyond reasonable doubt.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), ss 89, 165B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases:
- Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- R v Reeves (1992) 29 NSWLR 109
- R v Matthews (Court of Criminal Appeal (NSW), 28 May 1996, unrep)
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1