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Key decisions

  • Hogg v R [2019] NSWCCA 323
  • Wood v R [2019] NSWCCA 309

Hogg v R [2019] NSWCCA 323

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 1995 (NSW) 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.

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