Hogg v R [2019] NSWCCA 323

Hogg v R [2019] NSWCCA 323 · Read the judgment on AustLII

Catchwords: Qualified right to silence – Special caution – Crown needs to cross-examine

In this decision of the Court of Criminal Appeal (‘CCA’), the Court has examined the use of the ‘special caution’ and how it may (or may not) qualify the right to silence.

The applicant was charged with having sexual intercourse without consent in 1988. He was arrested for the offence in 2016 – by which time the Evidence Act included s 89A (introduced on 1 September 2013). That section provides for a ‘special caution’ to be given to accused persons, and if it is given in accordance with the requirements (including that it is given in the presence of the accused’s lawyer), the section provides for circumstances in which adverse inferences can subsequently be drawn in the trial about the accused’s failure or refusal to mention a fact. In other words, it significantly qualifies the right to silence. The provision hasn’t previously received appellate attention – probably because it requires a lawyer to be present, so most lawyers decline to attend police stations.

Nevertheless, in this case, the accused attended the police station along with his lawyer. Because his solicitor was present, the police officer was able to issue the ‘special caution’, which includes the that ‘… it may harm your defence if you fail or refuse to mention something that you later seek to rely upon in court.’ Following the issuing of that special caution, the solicitor asked for three minutes to confer with his client, following which he indicated that his client was declining to discuss the matter any further and that the accused ‘… realises the implications of doing so. I’m happy to sign off on that.’ The solicitor also signed a notebook statement confirming the conversation.

At trial, the accused gave evidence including an exculpatory version which (obviously) he had not mentioned during official questioning. He asserted that he exercised his right to silence on advice from his legal representative. Importantly, he was not cross-examined by the Crown about his reason for refusing to answer questions (he was cross-examined on other topics which are not discussed in this summary – but which did give rise to a further ground of appeal). The trial judge gave the jury a direction which was broadly to the effect that if they accepted certain preconditions, then it was open to them to infer that the reason the accused didn’t give his version when given the opportunity was that he had only recently invented it. There was no objection made by the defence to the direction, and defence counsel did not ask for a direction that because the appellant’s asserted reason for declining to answer questions was unchallenged, and it was not suggested to him that he was hiding behind legal advice, therefore no adverse inference could be drawn against him. The appellant was convicted. He appealed on six grounds, five of which related to the application of s86A of the Evidence Act.

The Court (White JA; Wright J agreeing, Wilson J also broadly agreeing with the outcome, though for different reasons, and ultimately disagreeing about whether there should be a retrial) upheld the appeal. The most important part of the decision relates to grounds 2 and 3, which were to the effect that the jury direction should not have been given, and the prosecutor failed to put to the accused factors which were ultimately relied upon to support the inferences which could be drawn against the accused from his silence.

From [75]-[91], the primary judgment gives helpful background to the NSW legislation, which had been adapted from UK provisions. That background included some of the UK decisions about its application. Some of those decisions provide that, if the true reason for an accused’s silence is that he or she genuinely relied on legal advice to remain silent, then no adverse inference should be drawn against the accused (at [111]). Those decisions also raise a question about whether it was reasonable for the accused to rely on the legal advice – although that point was not the subject of submissions by the parties in this case.

Here, the accused had given evidence that his reason for maintaining silence was that he was advised to do so and there was no issue that he had been so advised. It was therefore for the Crown to establish that his true reason for maintaining silence was not that he had been advised to do so, but because he had no version to give which was consistent with innocence. The Crown did not do that, and so no issue should have been left to the jury as to whether an adverse inference could be drawn against the accused for his refusal to answer question (at [113], and [109]-[110]). The accused’s counsel should have asked for a direction that no adverse inference could be drawn against the accused for his refusal to answer questions. Indeed, the Crown should also have sought it, given its failure to cross-examine the accused as to his reasons for silence; the rule in Browne v Dunn required the Crown to challenge his evidence is it was to be contested (at [115]). For those and other reasons the conviction was quashed (by majority, there was no order for a retrial).

Although this decision does limit the application of s89A, there continues to be a risk if lawyers are present during official questioning. If police administer the caution in the presence of a lawyer, the accused declines to give a version, but then gives one at trial, the very least that can be expected is that the accused will be cross-examined about the circumstances, because this decision makes it clear that the Crown is required to do so. It follows that a prudent practitioner would not attend a police station for questioning with their client except in the most exceptional circumstances.