CV v R [2022] NSWCCA 264

CV v R [2022] NSWCCA 264

No miscarriage of justice was occasioned by the absence of an anti-s 89A direction. The Crown ultimately disclaimed reliance on s 89A and did not invite the jury in closing to draw an unfavourable inference from the applicant's failure to mention a fact in the ERISP that he later relied on. The only apparent attempt to invoke such reasoning occurred briefly in cross-examination about the alleged $5000 debt and was not pursued. The trial judge's directions on the applicant's right to silence, the onus of proof, and the fact that his participation in an interview or giving evidence did not require him to prove innocence minimised or eliminated any risk of impermissible reasoning. Trial...

Jurisdiction
Australia
Judgment Date
09 December 2022
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal From 12 Convictions in the District Court; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'special Caution' 'right to Silence' 'evidence Act 1995 (nsw) S 89 A' 'jury Directions' 'historical Sexual Offences Against Children']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'miscarriage of Justice' 'special Caution' 'right to Silence' 'evidence Act 1995 (nsw) S 89 A' 'jury Directions' 'historical Sexual Offences Against Children']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal From 12 Convictions in the District Court; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the trial miscarried because the trial judge did not direct the jury that they could not draw an adverse inference from the applicant being given a special caution under s 89A of the Evidence Act 1995 (NSW) or from any suggested failure to mention matters when questioned by police.' 'Whether the Crown invited the jury to draw an unfavourable inference from matters the applicant did not mention in his ERISP but later relied on in his defence.' 'Whether the absence of a request by trial counsel for an anti-s 89A direction indicated that no prejudice to a fair trial occurred.']

Ratio Decidendi

No miscarriage of justice was occasioned by the absence of an anti-s 89A direction. The Crown ultimately disclaimed reliance on s 89A and did not invite the jury in closing to draw an unfavourable inference from the applicant's failure to mention a fact in the ERISP that he later relied on. The only apparent attempt to invoke such reasoning occurred briefly in cross-examination about the alleged $5000 debt and was not pursued. The trial judge's directions on the applicant's right to silence, the onus of proof, and the fact that his participation in an interview or giving evidence did not require him to prove innocence minimised or eliminated any risk of impermissible reasoning. Trial...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['The Applicant be granted leave to appeal.' 'The Appeal be dismissed.']