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Court of Criminal Appeal 15 December 2022

Ward v R

[2022] NSWCCA 271

Sexual offences

Citation: Ward v R [2022] NSWCCA 271
Court: Court of Criminal Appeal
Date: 15 December 2022
Judge(s): Adamson J (primary judgment); Campbell J (agreeing, with additional observations on Ground 1); McNaughton J (agreeing)

Background

The applicant was convicted by a jury of three counts of sexual offending against a boy aged between five and six years, alleged to have occurred between July 2008 and July 2010. The complainant had known the applicant from early childhood, visiting a wrecking yard opposite his family home where the applicant lived in a caravan. The complainant's mother regarded the applicant as a trusted family friend and allowed the complainant to stay overnight in the caravan.

The complainant did not disclose the abuse until he was approximately 12 years old, when his sister observed his extreme reaction to a suggestion that he visit the applicant. He reported the conduct to police in March 2018, approximately ten years after the alleged offending began, following which the applicant was arrested and charged.

At trial, the applicant gave evidence denying the allegations. A detective gave evidence that police had offered the applicant an interview through his legal representatives, but the offer was declined. No direction was given to the jury that it must not draw any adverse inference from that refusal. The applicant sought leave to appeal on three grounds: failure to direct on the right to silence, failure to give a forensic disadvantage direction concerning delay, and unreasonable verdict.

Legal Issues

  • Whether the trial judge's failure to give the standard direction under s 89 of the Evidence Act 1995 (NSW) prohibiting adverse inferences from the applicant's exercise of his right to silence occasioned a miscarriage of justice.
  • Whether the trial judge was required to give a forensic disadvantage direction under s 165B of the Evidence Act 1995 (NSW) or a Mahmood-style direction concerning the unavailability of records due to delay.
  • Whether the verdicts were unreasonable in the sense that no jury acting rationally could have been satisfied of guilt beyond reasonable doubt.

Decision

Ground 1: Right to silence direction

The Court accepted that the detective's evidence that the applicant's lawyers had declined a police interview was irregular, and that the failure to give a standard direction at the time of that evidence was also an irregularity (at [129]). Section 89 of the Evidence Act 1995 (NSW) prohibits the drawing of any unfavourable inference from an accused's failure to respond to police questioning, reflecting the common law principle confirmed in Petty v The Queen (at [77]).

However, the Court found no miscarriage of justice. Three features brought this case within the principles in Dent v R [2017] NSWCCA 166: the jury was made aware the applicant had a right to silence and had exercised it through his lawyers; the applicant gave evidence at trial, removing scope for jury speculation; and no submissions were made about the refusal to be interviewed (at [86]). The trial judge also gave a hypothetical direction in the summing up concerning the right to silence, which the Court regarded as tending to reinforce the jury's understanding (at [87]). The Court inferred that the applicant's trial counsel made a rational forensic choice not to seek the direction, rather than acting through inadvertence, which further weighed against a finding of miscarriage (at [88]-[91]). Campbell J added that, while the irregularities were real and the standard direction should have been given promptly, the entirety of the conduct of the trial, including the burden and presumption of innocence directions and the absence of any Crown submission on silence, left him unsatisfied that either irregularity amounted to a miscarriage of justice (at [134]).

Ground 2: Forensic disadvantage and delay directions

The Court rejected the submission that a direction under s 165B of the Evidence Act should have been given regarding the unavailability of records due to delay. Section 165B(2) requires a party to apply for such a direction, and s 165B(5) operates to prohibit the trial judge from giving it in the absence of an application. No application was made at trial (at [97]-[98]). The trial judge therefore had no obligation to give the direction and was positively prohibited from doing so.

Even if an application had been made, the applicant had not identified what significant forensic disadvantage he had suffered. Pointing to a mere absence of evidence with only speculative probative value is insufficient to enliven the provision (at [99]-[100]). The Court also declined to find that a Mahmood-style direction was required in the circumstances, noting that no issue had been raised at trial about the unavailability of the relevant records and that no such direction was necessary to prevent a miscarriage of justice (at [102]).

Ground 3: Unreasonable verdict

Applying the principles in M v The Queen, Pell v The Queen, and related authority, the Court examined the whole of the evidence and concluded that it was open to the jury to convict on all three counts (at [104]-[126]). The complainant's evidence, accepted by the jury as credible and reliable, provided a sufficient basis for the verdicts. The Court found that the absence of corroboration, the late disclosure, the lack of specific memory by the complainant's mother about one relevant night, and the pushbike dispute did not compel a reasonable doubt. Each of those matters was explicable on the evidence, and the jury was entitled to reason from the evidence as a whole, including the complainant's emotional reactions and the consistency of his account to police (at [110]-[125]). Adamson J stated that she was not persuaded the jury ought to have entertained a reasonable doubt and that she had no doubt about the applicant's guilt (at [126]).

Orders Made

  • Leave granted pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of Grounds 1 and 2.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where evidence of an accused's exercise of the right to silence is led at trial, the trial judge must give a direction in accordance with s 89 of the Evidence Act 1995 (NSW) at or promptly after the time the evidence is received, and again in the summing up. The Court of Criminal Appeal confirmed that failure to give that direction is an irregularity, but it does not automatically produce a miscarriage of justice (at [80], [129], [134]).

  • No miscarriage of justice arises from the omission of a right to silence direction where the jury was made aware the accused had a right to silence and exercised it, the accused gave evidence at trial, no submissions were made about the refusal to be interviewed, and trial counsel's failure to seek the direction is more readily attributed to rational forensic choice than inadvertence (at [86]-[92]).

  • Under s 165B of the Evidence Act 1995 (NSW), a forensic disadvantage direction caused by delay is not available unless a party applies for it. Section 165B(5) positively prohibits a trial judge from giving the direction in the absence of such an application, so no obligation to give the direction arises and no miscarriage of justice flows from its absence (at [97]-[98]).

  • A speculative claim that unavailable evidence might have assisted the accused is insufficient to establish the significant forensic disadvantage required to ground a s 165B direction or a Mahmood-style direction about absent evidence. The applicant must identify the disadvantage with particularity (at [100]).

  • In unreasonable verdict appeals in child sexual assault cases, the Court must proceed on the basis that the jury accepted the complainant's evidence as credible and reliable. Factors such as late disclosure, absence of corroboration, and imperfect memory by other witnesses do not necessarily compel a reasonable doubt, particularly where the complainant's account to police was specific and consistent with documented emotional responses (at [107], [110]-[126]).

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
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Binns v R [2017] NSWCCA 280
- Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354
- Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Dent v R [2017] NSWCCA 166
- Glennon v The Queen (1994) 179 CLR 1; [1994] HCA 7
- Groundstroem v R [2013] NSWCCA 237
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34
- R v Matthews (Court of Criminal Appeal (NSW), 28 May 1996, unrep)
- R v Reeves (1992) 29 NSWLR 109
- Shanmugam v R [2021] NSWCCA 125
- Taylor-Joycey v R [2021] NSWCCA 29
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- Z (a pseudonym) v R [2022] NSWCCA 8