REGINA v ANDERSON [2002] NSWCCA 141

REGINA v ANDERSON [2002] NSWCCA 141

The conviction appeal succeeded because the cross-examination and the Crown Prosecutor's remarks effectively invited the jury to disbelieve the Shane Williams account as a late invention because it had not been raised on the night of arrest. The appellant's defence depended on his credibility, and the right-to-silence directions did not sufficiently neutralise that prohibited inference; the resulting miscarriage could not be cured by r4 or the proviso.

Jurisdiction
Australia
Judgment Date
24 April 2002
Procedural Posture
Criminal Appeal Against Conviction / Appeal in the New South Wales Court of Criminal Appeal From Convictions in the District Court
Outcome
Appeal allowed; convictions set aside; new trial ordered.
Legal Topics
['identification Evidence' 'right to Silence' 'cross Examination of Accused' 'late Defence or Explanation' 'evidence Act 1995 S 89' 'miscarriage of Justice' 'judicial Directions' 'new Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['identification Evidence' 'right to Silence' 'cross Examination of Accused' 'late Defence or Explanation' 'evidence Act 1995 S 89' 'miscarriage of Justice' 'judicial Directions' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal in the New South Wales Court of Criminal Appeal From Convictions in the District Court

Legal Issues

  1. 1 ['Whether the trial miscarried because the appellant was cross-examined about failing to inform police at the time of arrest about Shane Williams, whom he alleged was the assailant.' "Whether the questioning invited the jury to draw an adverse inference from the appellant's exercise of the right to silence contrary to Evidence Act 1995 s 89 or the principle in Petty v The Queen (1991) 173 CLR 95." "Whether the trial judge's directions about the right to silence adequately neutralised the effect of the Crown's cross-examination and address." 'Whether a separate ground concerning directions as to the mental element in the second count had substance.']

Ratio Decidendi

The conviction appeal succeeded because the cross-examination and the Crown Prosecutor's remarks effectively invited the jury to disbelieve the Shane Williams account as a late invention because it had not been raised on the night of arrest. The appellant's defence depended on his credibility, and the right-to-silence directions did not sufficiently neutralise that prohibited inference; the resulting miscarriage could not be cured by r4 or the proviso.

Court Disposition

Appeal allowed; convictions set aside; new trial ordered.

Orders

  • ['Appeal allowed.' 'Set aside conviction.' 'Order new trial.']