Adverse Inferences Cannot Be Drawn About a Defendant’s Unchallenged Silence

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By Paul Gregoire and Ugur Nedim

When Carlingford High School chaplain David Hogg parked his car at Miller’s Point in an isolated area underneath the Harbour Bridge on the evening of 29 July 1988, the 16-year-old year 11 student in the passenger seat thought they were going to discuss the troubles she was experiencing at home.

But, the teen started to feel uncomfortable when the married father-of-three, who was 20 years her senior, turned the conversation to the subject of boyfriends. And moments later, the Baptist youth minister was allegedly forcing himself upon her, digitally penetrating her against her will.

The girl struggled to push him off, but couldn’t. So, she said, “I need to get something out of my bag.” The minister moved back off her, she reached for it, took out a packet of cigarettes and lit one. Her actions “defused the situation” and brought the sexual assault to an end.

The following week, the student related what had happened to a school friend. He told his mother, who passed the information onto the principal. And after the head of the school confirmed that the incident had taken place, the association the school had with the minister was brought to an end.

And in 2010, the woman involved read about Mr Hogg receiving an award from the non-profit sector, which resulted in her first reporting the assault to police. Although, it wasn’t until mid-2015 that she turned up at a station and made a formal complaint.

An historical crime

A NSW District Court jury subsequently found Hogg guilty of one count of sexual assault, contrary to section 61D(1) of the Crimes Act 1900 (NSW). This section has since been repealed. But, it was in force at the time the offence was allegedly perpetrated, so the minister was charged under it.

The maximum penalty for committing sexual intercourse without consent under this old section of the Act was 8 years behind bars. That was unless the victim was under the age of 16. And in those circumstances, the maximum punishment increased to 10 years inside.

Section 61D used to fall under part 3 division 10 of the Crimes Act, which still contains the sections of the legislation that relate to sexual offences. And since 1988, this division of the Act has been overhauled on a number of occasions.

The most recent was after the release of the Royal Commission into child sexual abuse report. It resulted in NSW parliament passing a child sex abuse amendment bill in mid-2018. This altered the Crimes Act, so adult and child sexual offences were split up into separate subdivisions.

And on 15 June 2018, NSW District Court Judge Antony Townsden sentenced Mr Hogg to two years and four months prison time, with a non-parole period of one year.

A suspect right to silence

Mr Hogg decided to appeal his conviction to the NSW Court of Criminal Appeal (NSWCCA) on the 31 July last year. He did so on six grounds, five of which related to adverse inferences being drawn over his exercising his right to silence during his initial interview at the police station.

On 12 May 2016, detective senior constable Huisman interviewed Mr Hogg – who was accompanied by his criminal defence lawyer – in relation to the rape allegations. And the officer provided Hogg with a special caution as the crime he was accused of was a serious indictable offence.

Section 4 of the Crimes Act defines a serious indictable offence as a crime punishable by life or five or more years imprisonment. And under section 89A of the Evidence Act 1995 (NSW), a special caution can be issued to someone accused of having committed such an offence.

A special caution outlines that “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”.

At the point that the caution was given, the lawyer asked to speak with his client alone. The legal professional then advised Mr Hogg that he should exercise his right to silence at that time, and the accused subsequently answered no further questions.

After Hogg gave evidence that he didn’t drive to Millers Point on the day of the alleged incident, Judge Townsden directed the jury that despite his having remained silent on the advice of his lawyer, it was still open to make adverse inferences regarding why he didn’t mention this fact earlier.

Unchallenged and undermined

There were two grounds relating to Hogg exercising his right to silence that swayed the justices to uphold the appeal. These related to the prosecutor failing to address the reasons why he exercised his right to silence, prior to the suggestion that adverse inferences could be drawn from this.

Hogg argued there had been no challenge to his having stayed silent due to legal advice, and nor was he given the opportunity to defend himself against suggestions that he’d made up the Millers Point excuse, and therefore, the jury shouldn’t have been invited to consider adverse inferences.

NSWCCA Justice Richard White pointed out that the prosecution should have directly addressed Hogg as to the reasons behind his silence if it was going to be taken that he wasn’t simply following legal advice.

His Honour also upheld the fifth appeal ground, which entailed the prosecution having undermined the evidence of prior good character, by implying that people who work with vulnerable children do so to take advantage. The justice found this prejudicial reasoning hadn’t been corrected by the judge.

No public interest retrial

Justice White explained that the conviction should be set aside. Then he turned to whether a retrial was necessary. And even though the evidence was pointing to one in the public interest, the his Honour explained that Hogg had already served his non-parole period, as well as much of his parole.

“It is not in the interests of justice, in its wider sense, that there be a new trial in relation to the alleged offence that took place more than 30 years ago,” Justice White explained. And he then ordered that Hogg be acquitted on 30 December last year.

NSWCCA Justice Robertson Wright agreed with the orders, which made the majority. However, while Justice Helen Wilson agreed with the reasons for the appeal to be upheld, she felt that a retrial should be ordered.

“The fact of a conviction being recorded, were there to be a verdict of guilty from a jury, is of itself a significant matter, which has a broader importance in the context of child protection,” her Honour set out.

“Having regard to those features, the interests of justice lie in remitting the matter to the District Court for retrial.”

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