CV v R

Section 89A of the Evidence Act

1. Section 89(1) of the Evidence Act provides that, subject to s 89A, an inference unfavourable to a "party", which includes an accused in a criminal trial, must not be drawn from their failure or refusal to answer one or more questions or response to a representation "made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence."
2. Section 89A(1) is a limited exception to s 89(1) in a "criminal proceeding for a serious indictable offence". It provides that an unfavourable inference may be drawn from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact: "(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and (b) that is relied on in his or her defence in that proceeding."
3. Subsection 89A(2) provides that s 89A(1) does not apply unless: "(a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and (b) the special caution was given before the failure or refusal to mention the fact, and (c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and (d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions."
4. The operation of these provisions is expanded upon in ss 89A(3) to (9) in terms that are not necessary to describe other than to note that s 89A(9) defines "special caution" as meaning: "…. a caution given to a person that is to the effect that: (a) the person does not have to say or do anything, but it may harm the person's defence if the person does not mention when questioned something the person later relies on in court, and (b) anything the person does say or do may be used in evidence."
5. The operation of s 89A was addressed in Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323 ("Hogg"). In Hogg, the Crown had sought to rely on the failure of the accused to answer questions during an interview with the police, after he had been given a special caution. In his evidence at the trial, the accused stated that he refused to answer the questions on the basis of legal advice and that contention was not challenged by the Crown (at [26] and [27]). In directing the jury, the trial judge noted that the accused relied upon an assertion in his evidence that he was not near the scene of the relevant crime but that was not mentioned in his interview with the police. The trial judge directed the jury that they might determine this aspect of his evidence was untrue and invented to support his defence but only if they were satisfied that (i) the prosecution case being presented at the time he was cautioned was such that it called for an answer; (ii) the accused could have reasonably been expected to mention the matter he now relies on at the time he was cautioned; (iii) the only sensible reason for not raising the assertion that he was never at the scene of the crime was that he had not yet thought of it; and (iv) that it was "fair and proper to draw such a conclusion" (at [34]).
6. In Hogg, this Court held that a direction that invited the jury to adopt the reasoning permitted by s 89A(1) should not have been given. It found that, because the Crown had not contested the accused's reasons for staying silent, "[n]o issue should have been left as to whether an adverse inference could be drawn against the appellant for his refusal to answer questions" (at [113] per White JA; at [135] per Wright J and [142] per Wilson J).

Discussion of the Special Caution at the Applicant's Trial

1. As noted, the jury was played the applicant's ERISP on 14 June 2017 which included the administration of a special caution to the applicant. When the informant gave evidence, she testified to the fact that the special caution was administered to the applicant during the ERISP. She was asked: "Q. And the special caution to be clear is when you said "I'll also caution you that you are not obliged to say or do anything unless you wish to do so" - and in particular this bit - "But it may harm your defence if you do not mention when questioned something you later rely on in court"? A. That's right. Q. It's that bit that makes it a special caution, is that correct? A. Yes, that's correct."
2. After the informant's evidence finished, the trial judge queried with the parties whether any reliance would be placed by the Crown on s 89A of the Evidence Act. Her Honour referred the parties to the decision in Hogg. Her Honour indicated that further consideration to this issue could not be given until "I can see what the case is from both sides".
3. Soon afterwards, the applicant gave evidence‑in‑chief and then was cross‑examined. As noted in his evidence‑in‑chief, the applicant stated that he and TM were owed $5000 by TM's sister. The applicant said that, from the time of that dispute, his partner and her sister "were just like enemies to each other".
4. In the absence of the jury, the trial judge again raised s 89A. Her Honour noted that, for the provision to be engaged, the matter that was supposedly not stated by an accused during official questioning had to be "clearly defined". The cross‑examination resumed and at one point the applicant was asked about the $5000 he claimed was owed to himself and TM by TH as follows: "Q. I'll split the question up. You didn't tell the police anything about the $5,000. That's right, isn't it? A. INTERPRETER HO: Whatever they asked, I gave the answer. I didn't have any chance to volunteer any information. Q. You did volunteer information, frequently, throughout your interview. That's right, isn't it? A. INTERPRETER HO: Whatever the police asked me, I just discussed with them regarding that. Q. There was no such disagreement about the $5,000, that's right, isn't it? A. (No verbal reply) Q. That's why you didn't tell the police about it. Do you agree or disagree? A. INTERPRETER HO: Not agree."
5. In oral submissions, Senior Counsel for the applicant, Ms Cuneen SC, instanced this cross-examination as an example of the Crown Prosecutor laying the groundwork for invoking s 89A.
6. Later in the applicant's cross-examination, he was reminded of the special caution given to him at the commencement of the ERISP. It was suggested to him that he knew that it could harm his defence if he did not mention to the police something that he later relied on in court. At the next break, the trial judge queried whether the evidence concerning the $5000 payment was "something significant" enough to invoke s 89A. After some debate, the Crown Prosecutor indicated that they had not yet decided to seek a direction invoking s 89A. After the applicant's evidence was completed, the Crown Prosecutor advised that the Crown did not "intend to rely on [s] 89A".
7. Just before counsel commenced addresses, the trial judge again raised with the parties whether any direction was required: "HER HONOUR: …Special caution. Now what am I meant to do with that. There's nothing there for the special caution but I am also, even if there was a special caution to give a right to silence direction. But what do I say about the special caution, if anything? [Counsel for the Applicant]: I don't think - I think it only applicable to say anything about the special caution if the Crown is asking for you to give an adverse inference direction. Otherwise I don't think it plays any role. HER HONOUR: I would just stick with the normal right to silence but the election to give evidence and the election to speak to police. [Counsel for the Applicant]: Yes and then of course once he elects to give evidence he's a witness like anyone else in this trial. HER HONOUR: And the onus of proof. [Counsel for the Applicant]: Yes. HER HONOUR: With a Liberato [Counsel for the Applicant]: That's right. HER HONOUR: Mr Crown do you have anything in contrast to that? CROWN PROSECUTOR: No your Honour I'm guided by defence counsel's attitude in this particular respect and have nothing further to say." (emphasis added)
8. Despite the Crown disavowing any reliance on s 89A, the applicant's submissions in this Court referred to the following part of the Crown Prosecutor's address as an alleged instance where reliance was sought to be placed on the failure of the applicant to state something in his interview with the police: "... I just want to take you to some more evidence of [TM] … ... Although in his ERISP the accused did refer to [TH]'s approach for a loan referral. He said nothing about any threat to burn down the house. Putting that aside the accused said nothing at all in his evidence about any approach from [TH] to borrow $30,000 and nothing at all about any threat to burn down his house. I repeat a threat which if made he surely would've known about almost immediately. The absence of any evidence from the accused about any such threat is consistent with the Crown case and wish what [TH] says that no such threat to burn down the house was ever made. You would conclude that [TM]'s evidence about the threat to burn down the house was a fabrication designed to discredit [TH]. In reality the person who's discredited by that evidence, that untruthful evidence, that obviously untruthful evidence is the person who gave the evidence, [TM]." (emphasis added)
9. This passage does not seek to invoke the reasoning referred to in s 89A. Instead, in this part of his address the Crown Prosecutor was embracing part of the applicant's evidence and ERISP which did not include any suggestion that KM's mother, TH, threatened to burn their house down as contradicting TM's evidence which contended that she had.
10. The applicant's submissions also referred to the following part of the Crown Prosecutor's address: "So, ladies and gentlemen, I'd suggest to you that what the accused did when he was interviewed by the police, knowing that it was alleged that [TH's] children when they were around at his place had been molested by him, I'd suggest to you that what he was doing was deliberately minimising the information he was giving to the police about the actual level of his contact with [TH] and her family in an attempt to divert the police away from finding out the truth of it, namely, there was regular contact. The contradiction between his evidence and what he said to police about [TH] working or not working is obvious. Also, he told the police that when he'd started his relationship with [TM] and started living together separately, that he did not associate with [TH] and her family. That's also plainly untrue in many ways on many aspects of even his evidence."
11. Again, this part of the Crown's address does not seek to invoke s 89A. It does not suggest that there was some factual matter that the applicant sought to raise in his defence that he did not raise in his ERISP but could reasonably have been expected to mention. Instead, the submission simply attacks the veracity of the account he gave in the ERISP.
12. In her submissions in reply, Ms Cuneen referred to another passage of the Crown Prosecutor's address as potentially invoking s 89A. However, these passages simply involve the Crown Prosecutor referring to (alleged) contradictions between what the applicant stated in his ERISP and later stated in his evidence.
13. For the sake of completeness, I note that in that part of the Crown Prosecutor's address which referred to the $5000 that TM said was owed by TH, the Crown Prosecutor referred to TM's evidence and the evidence of the applicant and submitted that "… this is something they've made up to create the false impression of a poor relationship between the sisters and thereby create distance between the accused and the children." Again, this submission did not invoke the reasoning referred to in s 89A.
14. In the relevant part of the trial judge's summing up, her Honour told the jury that the applicant "could have elected not to speak to the police and nothing adverse could be held against him … [b]ut on 14 June 2017 he chose to waive his right of silence by participating in the interview now before you". Her Honour then reminded the jury that the accused gave evidence and that his evidence was to be assessed like that of any other witness but added:
15. "It is not for the accused to prove his innocence, and this fundamental principle has not changed or been qualified in any way simply because of his election to participate in an interview or to give evidence in the trial."
16. Her Honour reminded the jury that they could not find the applicant guilty just because they rejected his evidence, that if they accepted his evidence, they must find him not guilty and otherwise gave a "Liberato direction" (ie, Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 6; Haile v R [2022] NSWCCA 71).

The Appeal

1. The sole ground of appeal is that the "trial miscarried due to the trial judge not directing the jury regarding the Special Caution provided for [in] section 89A Evidence Act 1995."
2. The direction that the applicant contends should have been given was colloquially described in oral submissions as an "anti-section 89A direction"; that is, a direction to the effect that the jury could not draw an "inference adverse to the accused based on [his having been given] the special caution or based on anything which it is suggested that he did not mention when he was questioned by police".
3. The applicant's written submissions in support of this ground referred to the passages from the Crown Prosecutor's address to the jury noted above. The submissions contended that the evidence before the jury and the cross‑examination of the applicant was sufficient to "avail the jury with enough information for it to be inferred that certain things not said by the applicant in his interview could be used adversely against him" (emphasis in original). Beyond the references to the above passages from the Crown Prosecutor's address noted above, the "certain things" were not specified.
4. The written submissions were expanded upon in Ms Cuneen's oral submissions. Ms Cuneen noted the repeated references during the trial in the presence of the jury to the fact that the applicant was administered a "special caution" at the commencement of his ERISP. It was submitted that those references as well as the repetition of the terms of the caution itself created a risk that the jury might engage in "impermissible reasoning", specifically that they might adopt the reasoning stated in the special caution of drawing some unfavourable inference from the failure of the applicant to mention some particular matter even though the Crown had (ultimately) disclaimed reliance on s 89A. Ms Cuneen submitted that risk was exemplified by the various passages noted above including the cross‑examination of the applicant about the contention that TH was resentful of the applicant and his wife because they were demanding payment of $5000 they claimed was owed to them (see [26]).
5. Ms Cuneen accepted that no direction to the effect contended for was sought by Counsel who appeared for her client at the trial. However, Ms Cuneen submitted that once the existence and terms of the special caution were "in play", in the sense of being referred to in the presence of the jury, it was incumbent on the trial judge to direct the jury in terms that protect an accused from the drawing of any adverse inferences that might otherwise be drawn from their failure to mention some matter in an interview with the police that they later rely on.
6. The Crown submitted that, in light of the manner in which the trial was conducted and the directions that were given by the trial judge, there was no risk of the jury engaging in impermissible reasoning. The Crown pointed to the failure of the applicant's Counsel at the trial to seek such a direction as not only engaging r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) ("the Rules") but as also indicative of their having determined that the giving of a direction of the kind now sought might "only serve to highlight discrepancies in the applicant's evidence, which could be used to adversely affect the applicant's credit in the ordinary way".
7. Contrary to the applicant's submissions, neither the various passages from the Crown Prosecutor's address that were identified nor any other part of the address sought to invoke s 89A; that is, the Crown's address did not invite the jury to draw some unfavourable inference from the alleged failure of the applicant to mention some fact in his ERISP that he could reasonably have expected to mention. As noted, in the passage set out at [30] the Crown Prosecutor relied on what the applicant did not state in his ERISP to attack TM's credit. Otherwise, while the Crown attacked the veracity of the version of events put forward in the applicant's ERISP and in his evidence, and did so in some instances by relying on inconsistencies between the two, it did not so in a manner that sought to invoke the reasoning permitted by s 89A.
8. Throughout the entirety of what was a lengthy trial, the only occasion in which the Crown appeared to attempt to invoke s 89A was in that part of the cross‑examination set out above (at [26]) where it sought a concession from the applicant that he did not tell the police about the $5000 he and his wife claimed was owed to them by TH. Nevertheless, even though the jury heard the terms of the special caution that was administered, I do not consider that there was any realistic prospect of the jury adopting the reasoning suggested by the caution either on the topic of the $5000 for any other matter for four reasons.
9. First, neither in the balance of the cross‑examination of the applicant nor in her closing address, did the Crown Prosecutor make any point about the applicant's failure to mention some fact which he later relied on including the $5000 said to be owing to the applicant and his wife.
10. Second, the effect of the directions that were given by the trial judge minimised and potentially eliminated the risk of the jury engaging in the impermissible reasoning suggested by the applicant. As noted, those directions reiterated that the accused had a right to silence and did not have to participate in the ERISP with the police (see [36] to [37]). The trial judge specifically told the jury that, even though the applicant waived the right to silence by participating in the ERISP, he did not have to prove his innocence and "this fundamental principle has not changed or been qualified in any way simply because of his election to participate in an interview or to give evidence in the trial". The applicant's contention assumes that, despite that direction, the jury would or might have concluded that his right to silence was qualified by his election to participate in the ERISP because by participating he assumed some obligation to disclose facts that he might reasonably be expected to mention. I do not accept that assumption.
11. Third, the conduct of the applicant's Counsel in not seeking the direction now sought is more than just a matter that engages r 4.15 of the Rules. It is also a strong indicator that nothing prejudicial to a fair trial occurred (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35] per Kiefel CJ, Bell, Gageler and Gordon JJ; Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 at [57] per Kiefel CJ, Keane and Steward JJ; Cox v R [2022] NSWCCA 66 at [48] and [56] per Beech-Jones CJ at CL, Hamill and Cavanagh JJ agreed). Counsel for the applicant at the trial was cognisant of the potential for s 89A to have been engaged. By the time that the Crown disclaimed reliance on the provision, Counsel for the applicant had heard the entirety of the applicant's cross‑examination. If, in light of that cross‑examination, there was a realistic possibility that the jury might draw an unfavourable inference from the failure of the applicant to disclose some fact in the ERISP then it seems likely that Counsel would have raised it then or following the Crown Prosecutor's address or the trial judge's summing up.
12. Lastly, while it is the case that throughout the trial there were various references to the giving of a "special caution" in the presence of the jury, the jury was told why it was considered "special" (see [23]). Contrary to the applicant's submissions, there was no reason for the jury to conclude that the special caution was administered for some reason peculiar to the applicant or the charges he faced.
13. I am not satisfied that anything that occurred at the trial gave rise to an appreciable risk of the jury using impermissible reasoning in relation to the applicant's participation in the ERISP. I am not satisfied that any miscarriage of justice was occasioned by the failure of the trial judge to direct the jury to the effect proposed by the applicant.

Orders

1. The sole ground of appeal does not raise a question of law alone and thus a grant of leave is required for it to be raised (Criminal Appeal Act 1912 (NSW), s 5(1)). Further, the fact that Counsel for the applicant did not complain about the failure of the trial judge to give the direction sought warrants a refusal of leave under r 4.15 of the Rules. However, the interests of finality warrant an order that the appeal be dismissed rather than leave just being refused. It is clear that careful consideration was given to all possible grounds of appeal that could be relied on and a deliberate decision was made to pursue the ground perceived to be the strongest.
2. Accordingly, I propose the following orders: (1) The Applicant be granted leave to appeal. (2) The Appeal be dismissed.
3. WALTON J: I agree with Beech-Jones CJ at CL.
4. YEHIA J: I agree with Beech-Jones CJ at CL.

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