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Concealing Serious Indictable Offence

Updated: Nov 1, 2023


Published by Geoff Harrison | 29 August 2023


Section 316 of the Crimes Act 1900 ('the Act'), Concealing a Serious Indictable Offence replaces the abolished common law offence, misprision of a felony. As noted by Bathurst CJ in Ah Keni v R [2021] NSWCCA 263 at [75]:

The offence may be contrasted with the common law offences of misprision of felony and compounding a felony, which were abolished and replaced by s 316 of the Crimes Act, which I have set out at [59] above. The Law Reform Commission in its report of December 1999 (New South Wales Law Reform Commission, Review of section 316 of the Crimes Act 1900 (NSW), (December 1999)) described the background to the enactment of this section and in the course of doing so, usefully defined the offences of misprision of felony and compounding a felony:


“2.2 Section 316 replaced the common law misdemeanours of misprision of felony and compounding a felony. Misprision of felony consisted of knowing that a felony had been committed, and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time, and having had a reasonable opportunity to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony.” (Footnotes omitted.)


It can thus be seen that the difference between the offence of being an accessory after the fact and misprision or compounding a felony is that the former offence involves active assistance, whilst the latter involves failing to inform the authorities of the offence. This was the distinction drawn by the House of Lords in Sykes v Director of Public Prosecutions [1962] AC 528 (“Sykes”) at 561-562, where Lord Denning emphasised that the offence of accessory after the fact involved the taking of active steps to assist the principal offender: see also Lord Goddard at 569 and Lord Guest at 573.


As can be seen in the case of R v Imo Sagoa [2014] NSWDC 44 (below) an accused exercising their right to silence when they are liable to be suspected as being criminally involved in an offence is a lawful excuse for not bringing information to the attention of police.


The maximum penalty that can be imposed for this offence, is dependent upon the maximum penalty that can be imposed upon the serious indictable offence that is concealed.


Other sources/cases:



________________________________________________________________________________



316 CONCEALING SERIOUS INDICTABLE OFFENCE


(1) An adult--

(a) who knows or believes that a serious indictable offence has been committed by another person, and

(b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,

is guilty of an offence.

Maximum penalty--Imprisonment for--

(a) 2 years--if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or

(b) 3 years--if the maximum penalty for the serious indictable offence is more than 10 years imprisonment but not more than 20 years imprisonment, or

(c) 5 years--if the maximum penalty for the serious indictable offence is more than 20 years imprisonment.


(1A) For the purposes of subsection (1), a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority if--

(a) the information relates to a sexual offence or a domestic violence offence against a person (the

"alleged victim" ), and

(b) the alleged victim was an adult at the time the information was obtained by the person, and

(c) the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police or another appropriate authority.


(1B) Subsection (1A) does not limit the grounds on which it may be established that a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority.


(2) A person who solicits, accepts or agrees to accept any benefit for the person or any other person in consideration for doing anything that would be an offence under subsection (1) is guilty of an offence.

Maximum penalty--Imprisonment for--

(a) 5 years--if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or

(b) 6 years--if the maximum penalty for the serious indictable offence is more than 10 years imprisonment but not more than 20 years imprisonment, or

(c) 7 years--if the maximum penalty for the serious indictable offence is more than 20 years imprisonment.


(3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury.


(4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Director of Public Prosecutions if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.


(5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4).


(6) In this section--

"domestic violence offence" has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.


"serious indictable offence" does not include a child abuse offence (within the meaning of section 316A).

Note: Concealing a child abuse offence is an offence under section 316A. A section 316A offence can only be committed by an adult.


"sexual offence" means the following offences--

(a) an offence under a provision of Division 10 of Part 3 where the alleged victim is an adult,

(b) an offence under a previous enactment that is substantially similar to an offence referred to in paragraph (a).


CRIMES REGULATION 2020 - REG 4

Concealment of offences by certain persons


For the purposes of sections 316(5) and 316A(7) of the Act, the following professions, callings or vocations are prescribed--


(a) a legal practitioner,

(b) a medical practitioner,

(c) a psychologist,

(d) a nurse,

(e) a social worker, including--

(i) a support worker for victims of crime, and

(ii) a counsellor who treats persons for emotional or psychological conditions suffered by them,

(f) a member of the clergy of any church or religious denomination,

(g) a researcher for professional or academic purposes,

(h) if the child abuse offence referred to in section 316A(1) of the Act is an offence under section 60E of the Act, a school teacher, including a principal of a school,

(i) an arbitrator,

(j) a mediator.


________________________________________________________________________________


R v Imo SAGOA [2014] NSWDC 44 (2 May 2014)


District Court


New South Wales


Case Title:

R v Imo SAGOA


Medium Neutral Citation:

[2014] NSWDC 44


Hearing Date(s):

14 April 2014


Decision Date:

02 May 2014


Before:

Judge A Haesler SC


Decision:


The conviction appeal is upheld.


I set aside the conviction and all other orders of the Court below


Catchwords:

Power to stay proceedings; appeal against conviction; conceal serious offence; Hinder investigation; lawful excuse; evidential onus


Legislation Cited:

Crimes Act 1900


Crimes (Appeal and Review) Act 2001


Criminal Procedure Act 1986


Evidence Act 1995


Cases Cited:

Bellchambers v R [2008] NSWCCA 235


Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39


Cornwall v The Queen [2007] HCA 12; (2007) 231 CLR 260


CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440


DPP v Burns [2010] NSWCCA 265


DPP v Emanuel [2009] NSWCCA 42


El- Zayat v R [2002] NSWCCA 138


Em v The Queen [2007] HCA 46; (2007) 232 CLR 67


Fox v Percy [2003] HCA 22; (2003) 214 CLR 118


Gianoutsos v Glykis [2006] NSWCCA 137


Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1


Grey v The Queen [2001] HCA 65


He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523


Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23


John Fairfax and Another v District Court of NSW [2004] NSWCCA 324


Jones v R [2005] NSWCCA 443


Kirk and another v Industrial Court of NSW and another [2010] HCA 1; (2010) 239 CLR 531


Petty & Maiden v The Queen [1991] HCA 34


R v Bikic [2001] NSWCCA 537


R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450


R v Mills [1997] UKHL 35; [1998] AC 382


Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCCA 79


RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620


Sanchez v R [2009] NSWCCA 171


Spanos v Lazaris [2008] NSWCCA 74


Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454


The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563


Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217


Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509


Texts Cited:

Attorney General Hansard Legislative Assembly 17 May 1990, 3694.


Report of the NSW Law Reform Commission, 1999, Number 93, Review of s 316 Crimes Act


Category:

Principal judgment


Parties:

Imo Sagoa - The appellant


The Crown


Representation


- Counsel:

Mr S Boland - Appellant



- Solicitors:

Mr T Gunter, DPP - Crown


File Number(s):

2010/251843


JUDGMENT


Introduction


1. On 23 May 2010 a party at Dee Why ended abruptly when a young man, Edan Brown was stabbed. Mr Brown died of his injuries soon after being taken to hospital. That morning investigating police arrested and tried to interview a number of partygoers. They refused to answer questions, on legal advice. Other partygoers were identified. Police suspicions as to the identity of the stabber soon centred on Anthony Jones or 'AJ' but their inquiry was a broad one. Imo Sagoa, also known as 'junior,' was identified as a person of interest: exhibit 6.


2. On 26 May 2010, Mr Sagoa, the appellant, made a formal statement to police: exhibit 5. In it he said he was at the party but had left, very drunk, before the fight and gone to stay with his Uncle Terry. The statement on its face appears far from convincing. It was soon contradicted by other information received by police.


3. On 10 June 2010 the appellant participated in a recorded witness interview: exhibit 8. He was told he was not under arrest but was cautioned that anything he did say would be recorded and could be used in evidence. During the interview he maintained his initial story. He said he did not know Jones or AJ, despite being confronted with telephone call records showing communications between his phone and Jones' on 23 May 2010. Detective Ferns put to him that he was with Jones at a McDonalds after the stabbing. He denied any memory of this: Q & A333 -340. For reasons, obvious from a reading of the interview, Detective Ferns was not impressed with Mr Sagoa's account, prompting these comments:

"But I don't want you misleading us and getting us to go on different lines of inquiry, when we should be focussing our inquiry on who did this: Q & A 341 & 342."


4. This apparently referred back to some earlier questions:


Q 322 See, I'd rather you, if you're, if you're intentionally lying to me that's unforgivable. If you know something and you don't want to tell me I'd rather you just say Jason, I don't want to tell you because then that way that doesn't put me on other lines of inquiry and it doesn't create more time to have to spend chasing up your lies, I'd rather you just say, Jason, I don't want to tell you. So is Uncle Terry a lie or is he true?


A I don't know, I really don't know.


Q 332 " ... I don't want to start searching all the pubs at Manly and the northern beaches... trying to find a bloke called Uncle Terry if it's false."


To which Mr Sagoa replied:


A "Maybe it is false, I don't know. I was that drunk that day, can't remember anything":


Q 355 I think you can remember what happened because people have put you at the party there at the time of the fight. Simple as that.


A Why would they? I was at the party ...


Q 356 That's why you're in a police station talking to two detectives on a murder investigation, that's why you're here, mate, because your story or your little statement that you made to Alf Lombardo isn't consistent with what other people told us. That's why you're sitting in the seat right there. People wouldn't say that you were there, they wouldn't, there would be no reason for them to lie would there? But unless you were involved in the murder or in the stabbing or the fight that you would have a reason to lie, yeah? That's only sensible isn't it?


A Why?


Q357 I don't know, mate.


A I wasn't even there.


5. On 27 July 2010 Mr Sagoa was arrested for 'affray' and 'conceal serious offence'. He participated in a formal interview: exhibit 7 at Q 7. He was aware of his right to silence and exercised it. I do not however, because of his responses to the independent adopting officer, believe he was aware of his right not to participate in the interview at all. As he told the Sergeant "I had no choice did I?" exhibit 7 Q &A 241-242.


6. During the interview Detective Sergeant Pooley and Detective Matenga explained what an affray was: Q & A 63- 69. They explained their view that Mr Sagoa appeared unconcerned someone had been murdered: Q & A 157. It was put to Mr Sagoa that he fled the scene with AJ: Q & A 162. It was also put that later AJ told him and others he had stabbed Brown: Q & A 187-194.


7. Sergeant Pooley then said. "We've also been told that you take, took some form in the assault on the victim" (sic): Q 195. The Sergeant then told him, wrongly, that the punishment for conceal a serious offence was the same as that for the crime concealed, here murder: Q & A 199-203. Throughout the interview Mr Sagoa maintained his right to silence in the main responding to questions with a "no comment."


8. After the interview Mr Sagoa was not charged with affray. He was charged with three offences:

(1) Concealing a serious offence, being the stabbing murder of Mr Brown by Jones: s 316 Crimes Act 1900.

(2) Hindering the police investigation of Jones: s 315 Crimes Act 1900, and

(3) Knowingly making two false and misleading statements to police on the 26 May 2010 and 10 July 2010: s 307B Crimes Act 1900.


9. The charges did not proceed to hearing until after Mr Jones' conviction for Mr Brown's murder. Jones' initial trial before Justice Hall resulted in a hung jury. Jones entered a guilty plea on 23 November 2012 during a trial before Justice Barr and jury. He received a substantial sentence of imprisonment: exhibit 2.


10. Mr Sagoa gave evidence at the trial before Justice Hall and a jury: exhibit 4. He maintained his story that he was at the party. He said that he was very drunk and had left before the fight. He did however say he was friends with Jones and had seen him at the party. The Crown Prosecutor was given leave to cross-examine him and put to him that he was there during the fight that he was aware of the stabbing that he had left with Jones and that later Jones had admitted to him in the presence of others that he, Jones, had stabbed Mr Brown. Mr Sagoa stuck to his original version of events.


11. Mr Sagoa came for trial before Magistrate Stevenson at the Downing Centre on 27 February 2013. The hearing continued on the 28 February, 1 March, 8 March, 13 March, 10 April, 15 April, 16 April, 7 May, 23 July, 6 November and 5 December 2013. On 5 December 2013 Mr Sagoa was convicted of the s 315 and s 316 Crimes Act offences. The s 307B Crimes Act matter, being a backup charge to the hinder matter, was withdrawn and dismissed. Mr Sagoa was sentenced to 2 years imprisonment on each count. Each sentence was made concurrent with the other.


12. Mr Sagoa, as is his right, appealed his convictions and the severity of the sentences imposed: s 11 Crimes (Appeal and Review) Act 2001.


The Appeal


13. Mr Boland, who appeared on appeal and in the court below, put forward two bases for the Appeal. The first was that on a review of the evidence I would find that the Magistrate erred in refusing his application that the proceedings be stayed and that I on revisiting the application would grant the stay sought. The second was that a review of the evidence would cause me to find the accused not guilty on each charge.


14. An application to call fresh evidence, being the sentencing remarks of Justice Barr and the opening statement of the Crown prosecutor at the trial of Jones, was rejected as not being in the interests of justice: s 18(2) Crimes (Appeal and Review) Act 2001. The matters sought to be relied on from the proposed tenders were already in evidence and the Crown Prosecutor's address was not evidence. Further, evidence of a decision or finding of fact in earlier proceedings is not admissible to prove the existence of a fact that was in issue in those proceedings: s 91 Evidence Act 1995.


An Appeal against conviction


15. The Crimes (Appeal and Review) Act and the language of that particular statute govern this appeal. An Appeal against conviction is a rehearing based on the transcript and exhibits in the court below: s 18 Crimes (Appeal and Review) Act 2001. While submissions may be made that there was error in the court below it is for the Judge on appeal to resolve afresh the ultimate issue. The District Court has power to rehear issues at trial: Gianoutsos v Glykis [2006] NSWCCA 137.


16. If the appellant is to succeed the only orders available to me are to set aside the convictions: s 20 Crimes (Appeal and Review) Act. It has been observed that there are "natural limitations" in any case where the appellate court proceeds wholly on the basis of the record: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23]. A rehearing does not involve the District Court conducting an exercise of judicial review: DPP v Emanuel [2009] NSWCCA 42.


Power to stay proceedings


17. The District Court has no express power to stay a conviction. The question then is whether a power to make the orders sought is necessarily implied by the conferral of criminal appellate jurisdiction to the Court. The basic principles governing implied powers were set out by Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, at 16-17and Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23. The court in Jago held that the District Court had a power to stay matters before it on Indictment.


18. In John Fairfax and Another v District Court of NSW [2004] NSWCCA 324, the Chief Justice, in the context of considering powers to close the court, reviewed the various powers given the court to try a matter on Indictment. At [35], after making reference to Grassby, the Chief Justice emphasised that "the test of implication ...is a test of necessity".


19. In DPP v Emanuel at [61], and later in DPP v Burns [2010] NSWCCA 265, at [80], Basten JA, without deciding the point, noted that it is arguable that the jurisdiction of the District Court extends to setting aside a conviction invalidly obtained. He reasoned that an intermediate appellate court which identified procedural unfairness invalidating a conviction in the court below would itself fall into jurisdictional error were it not to do so: citing Kirk and another v Industrial Court of NSW and another [2010] HCA 1; (2010) 239 CLR 531 at [108].


20. It seems from the statutory scheme and the authorities noted that where the District Court, having given proper consideration to all of the evidence presented in the Local Court, forms the view that a procedural unfairness has occurred such that it is necessary in the interests of justice that the proceedings no long continue, it can and should set aside the convictions, effectively ending the prosecution in the same manner as a permanent stay.


Should the proceedings be stayed?


21. Mr Boland provided a copy of his two written submissions in the Local Court to supplement extensive oral submissions made on 14 and 15 April 2014: MFI 1 - respectively 15 pages and 39 pages. There was also a short written submission for this appeal dated 11 April 20104: MFI 2 - 3 pages. In summary, he submitted that a stay was necessary and compelled because the bringing of the proceedings amounted to an abuse of process and that the abuse was compounded by the failure to accord the appellant procedural fairness in the court below.


22. He submitted this was because the evidence disclosed that the appellant had a reasonable belief that to give the police information about Mr Brown's death would incriminate himself in that or related matters. A stay was necessary to protect his rights as:

(1) There was an explicit unfairness in being prosecuted for what was in effect his bona-fide assertion of the privilege against self-incrimination: relying on Petty & Maiden v The Queen [1991] HCA 34 at [2] and the Report of the NSW Law Reform Commission, 1999, Number 93, "Review of s 316 Crimes Act".

(2) A decision not to give evidence of the reasonable excuse available to him was a proper exercise of that right, given that by giving evidence he might possibly implicate himself in matters much more serious than those then before the court.

(3) For the prosecution to deliberately put him in such a position where the exercise his right would deny him the opportunity of defending himself was an improper use of the court process.

(4) The impropriety extended to both charges as the appellant could not properly defend the hinder charge alone as he could not split his evidence and waive his right to silence on one charge and not the other.

(5) It was also fundamentally unfair to, in effect, compel him to waive his privilege and give evidence as once he sought to defend either charge by giving evidence he would be exposed to cross-examination thereby possibly implicating him in the more serious matters, where he remained a suspect.

(6) He could not seek to avoid those consequences by reliance on s128 Evidence Act 1995. That section does not allow an accused when adducing evidence in chief revealing the commission of criminal offences other than the one charged to object to evidence or to be given a certificate: Cornwall v The Queen [2007] HCA 12; (2007) 231 CLR 260 at [111].


23. Further, it was submitted that the manner in which the prosecution was conducted in the court below "egregious" breaches of the prosecution's obligations of disclosure including:

(1) The prosecution failed to disclose until very late that a critical witness, Mr Uhi, had received a letter of comfort: see Grey v The Queen [2001] HCA 65 at [21].

(2) A statement by a critical witness, Tia Rowe, was not disclosed till very late.

(3) The police had failed to properly respond, at all or in time, to subpoenas issued to them to produce relevant material and the defence was not informed two witnesses had given evidence in the Jones trial that Mr Uhi had confessed to fabricating evidence: see R v Mills [1997] UKHL 35; [1998] AC 382.


24. These errors below he submitted had such a detrimental impact on the Local Court that they not be corrected on appeal. A similar submission was made in relation to a claim that the proceeding below had been attended by apprehended bias in the Court below.


25. Accordingly, it was submitted the appellant should not be prosecuted at all and that to allow the prosecution to continue would be for this Court to fall into jurisdictional error.


Determination - stay issue


26. A failure to afford procedural fairness during a hearing may amount to jurisdictional error: Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCCA 79; Kirk and another v Industrial Court of NSW and another at [60]. So too is "a failure to comply with an essential precondition or limit to the valid exercise of a power, whether either the precondition or power arises under the general law or under statute": Spanos v Lazaris [2008] NSWCCA 74, Basten JA at [15].


27. In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520, Mason CJ, Dawson , Toohey and McHugh JJ identified two fundamental policy considerations which must be taken into account when dealing with an alleged abuse of process in the context of criminal proceedings. Their Honours' said:


"The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure can lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice."


28. I must form my own view of the facts, recognising the advantage that the Magistrate had who saw and heard the witnesses called in the Local Court: see Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39; Fox v Percy. This appeal involves a rehearing. Accordingly I must consider issues relating to potential prejudice bias and procedural unfairness and where possible remedy them. I must read the evidence of critical witnesses in the light of criticisms made of them, fully conscious of the problems late or no disclosure caused the defence. When I do so, I apprehend neither bias, the appearance of bias, or irremediable prejudice to the appellant.


29. Petty and Maiden v The Queen, confirmed as a fundamental rule of the common law that a person who believes on reasonable grounds that he or she is suspected of being a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. The court recognised however that there were specific statutory modifications to that rule. Having cited relevant authorities the plurality concluded at [2]: "it is, in our view, clear that silence about an offence on the part of a person liable to be suspected of being criminally involved in its commission cannot constitute misprision of felony."


30. Misprision was the common law predecessor to s 316 Crimes Act. That section was introduced in 1990: The Second Reading Speech stressed the public's duty to assist police in the execution of their duties. "Not to do so should be a crime": Mr Dowd, Attorney General Hansard Legislative Assembly 17 May 1990, 3694.


31. Section 316 Crimes Act was again amended in 1999 following the Law Reform Commission's Report; in clear recognition of what was said in Petty and Maiden v The Queen. The section provides for a 'defence' of " reasonable excuse ."


32. In Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454, Brennan CJ, Toohey, McHugh and Gummow JJ discussed the terms 'reasonable grounds' and ' reasonable excuse ' and the distinctions between them. They said, at 464:

"The term " reasonable excuse " has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of " reasonable excuse " is an exception."


33. There is also a useful discussion of the term 'reasonable grounds' in a statutory context in R v Bikic [2001] NSWCCA 537 at [13] - [15], per Giles JA. His Honour, referring to s 128 Evidence Act 1995, "reasonable grounds for an objection must pay regard to whether or not the witness can be placed in jeopardy by giving the particular evidence."


34. Drawing from the authorities I note, a reasonable excuse could involve reliance on the entitlement to remain silent when a person believes on reasonable grounds that he or she is suspected of having been a party to an offence but as the NSW Law Reform Commission noted in Report 93, at 3.14, "self incrimination would not always excuse concealment of an offence at common law particularly where there is a gross discrepancy between the magnitude of the offence and the apprehend prosecution."


35. Where the legislature has made a specific provision for a defence that provision must be respected. When a person is charged it is not for the prosecution to predict what a defence might be nor is it incumbent on them to respect the privilege against self-incrimination. That privilege is for an accused to claim or waive: see Em v The Queen [2007] HCA 46; (2007) 232 CLR 67. That the prosecution, as broadly defined (s 4 Criminal Procedure Act 1986), might seek to gain an advantage in the investigation of another offence by laying charges that may compel waiver of the privilege is not an abuse of process. It is for the accused not the prosecution to determine how best to defend a charge. Only the accused can know if there is a reasonable excuse . And, only the defence can decide whether it ought to be relied on.


36. If there is no evidence of a reasonable excuse the prosecution have no duty or obligation to rebut it. If the defence wish to avail themselves of the 'defence' the reasonable excuse must be raised in or by evidence: He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523; CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440.That said, it is not essential that an accused give evidence to meet that evidentiary burden.


37. Here the prosecution had evidence sufficient to prove each charge, at the very least to a prima facie level. It was not for them to anticipate what, if any defence, might be raised. They had a proper basis to believe, based on the evidence and other material available to them, that the appellant's story to the police and at the trial of Jones was false. Given what was said to the appellant in his interviews, I can draw a clear inference that the police believed that the truth, if told, would implicate the appellant in more serious offences arising out of Mr Brown's death.


38. But this finding does not necessitate a stay. The appellant's privilege is his to waive or not. While privilege is often couched in the language of rights it does not bring with it any positive obligation on another person or institution including the prosecution. It must be respected by a court and no negative inference can be drawn from silence but the extent of the 'right' and the immunities it offers vary: see Jones v R [2005] NSWCCA 443: Sanchez v R [2009] NSWCCA 171.


39. In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 630, Gaudron A-CJ, Gummow, Kirby and Hayne JJ at [22] noted that that the expression "right of silence":

"... is a useful shorthand description for a number of different rules that apply in the criminal law. But referring, without more, to the 'right to silence' is not always a safe basis for reasoning to a conclusion in a particular case; the use of the expression 'right to silence' may obscure the particular rule or principle that is being applied."


40. Silence on the part of the accused cannot fill in any gaps in the prosecution case; it cannot be used as a makeweight: The accused is entitled to maintain his or her silence and it is not evidence of either guilt or innocence: Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 at [33]. As the plurality said in RPS v The Queen at [27] & [28]:


"... it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion, which the prosecution seeks."


As was said in Weissensteiner v The Queen [27]:


"[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." (Emphasis added)"


41. The High Court there recognised that in a criminal trial, not only is an accused person not bound to give evidence; it is for the prosecution to prove its case beyond reasonable doubt. However, the principles there stated also recognise that it is not an impropriety for the prosecution to present a case when one is available to them If that case in effect compels the accused to give evidence in order to raise a hypothesis consistent with innocence or risk a finding of guilt, so be it.


42. As Mr Gunter, Solicitor, for the Director, submitted simply:

(1) The police had discretion to bring a charge where they had evidence to support it.

(2) In relation to each charge they had such evidence.

(3) That evidence was presented to the court, and

(4) That evidence, if accepted would, and in fact did, prove each offence.


Accordingly, he said, nothing raised compels or necessitates a stay.


43. It was also submitted that that the prosecution was so infected by impropriety that the statements and interviews should be excluded pursuant to sections 90 and 138 Evidence Act. The submission made below and on appeal that the police did not have grounds to charge the appellant until they in fact did is supported by the evidence and accepted by me. I accept and agree with the reasoning of Magistrate Stevenson on 7 May 2013 on these points. For the reasons outlined above there was no police impropriety justifying consideration of the various matters set out in sections 90 or 138.


44. While strictly I do not need to decide the bias issue given the submissions made I should add that I could detect no bias or grounds to apprehend bias on the part of the Magistrate. Her Honour concluded the hearing by remarking:


" I do not think I have ever had a matter before me in all my years on the bench, or that I have seen in my 40 odd years in and about the courts, that has been as difficult convoluted and stressful" (Transcript, 5/12/13 at 14).


45. That stress led at times to expressions of exasperation and frustration at how long the proceedings were taking and the manner in which the issues were presented. Having read the transcript I can sympathise with her Honour but I can only conclude that nothing said or done by her Honour indicated anything other than a fair hearing was given the appellant.


46. If I can give one example: On 10 April 2013, the 5th day of hearing, her Honour was moved to ask "...but what's the defence? That he was a suspect at the time he was questioned and hence he didn't have to say anything?" She then carefully articulated that possible defence.


47. Mr Boland, who appeared below and on appeal, took her back to his apparently sole contention that the defence involved the asserted abuse of process "there being no need to say anything if a suspect" and that "one should not be prosecuted for asserting the right to silence": see transcript 10/4/2013 pages 10 & 11.


48. Her Honour was, I strongly suspect, trying to get the accused to focus on the elements of the offences, the evidence said to support them and the defences available to the charges. This was a perfectly proper attempt to focus the mind of counsel on the real issues that troubled her. The offer to raise the defences possibly available was not taken up: see her Honour's judgment 16 April 2013 pages 4 and 5.


49. It is true that the prosecution failed at times to meet their duty of candour and openness and had to be compelled belatedly to do so: Grey v The Queen. And this may have impeded the cross-examination of some witnesses. When I reviewed the transcript I compensated for any possible disadvantage to the defence of any strategic advantage gained by the prosecution. Such directions are routinely given in both jury and judge alone trials.


50. The relevant principles applicable to an assessment of how a miscarriage of justice could occur when a witness is not called by the prosecution are set out in The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575 and were applied in R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450. Here the witnesses not called were not essential to the unfolding of the narrative rather they went to a collateral issue; the assessment of the credibility of a witness. Section 102 Evidence Act 1995 would need to have been considered. In any event the Magistrate was satisfied the Prosecutor below had formed the view that the witnesses should not properly be called in the police case on the basis of their unreliability as assessed by Sergeant Pooley, the OIC in the murder investigation: see transcript 16/4/2013 page 12.


51. I also note that no application to call fresh evidence to meet this asserted disadvantage was made on appeal. If a submission is to be made that disadvantage was occasioned by non-disclosure generally the interests of justice could be met by an order that fresh evidence be called: s 18(2) Crimes (Appeal and Review) Act 2001.


52. The applications for setting aside the convictions on the basis that to continue the proceedings would be an abuse of process and involve jurisdictional error are therefore rejected.


The appeal on its merits


53. It is important to note that in the court below the focus of the defence case and defence cross-examination was based on the hypotheses initially put forward by the appellant Sagoa that he was not at the party when the affray and stabbing occurred and that he was not present when Mr Jones allegedly made admissions he was responsible for the stabbing. Only in final submissions below, after the refusal of the stay and other applications, was a defence of lawful excuse to the s 316 Crimes Act charge raised. Only then was it submitted that the elements of the offences had not been proved beyond reasonable doubt. That does not and cannot preclude the defences and points now being raised on appeal. Where a defence is available on the evidence a court is obliged to consider it.


54. In her judgment below Magistrate Stevenson referred to s 417A Crimes Act: 5/12/13 page 4. I do not believe that section applies here but if it does it is procedural only and accord with basic principle. The law, as correctly stated by her Honour, is that where a statute or the common law allow for lawful, reasonable or other such excuses to be raised an evidentiary burden falls on the defence before the prosecution have the legal onus to negative or displace it.


55. In He Kaw Teh, a case involving defence of honest and reasonable mistake, the High Court decided that the presumption that the establishment of mens rea is a prerequisite to conviction for a grave criminal offence was not displaced by the statutory provision in issue in that case. Dawson J at [85] noted:


"No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted." (emphasis added.)


56. A similar point was made in CTM v The Queen, where however it was held by the majority at [39] "A tentative out-of-court suggestion by the appellant ...which would have been consistent with his case, was shown by the evidence to be wrong. The evidential burden was not satisfied."


57. As is obvious the appellant did not give evidence. No inference could or should be drawn from that fact. When one examines the evidence relating to what he has said, his version of events is that he had nothing to say or tell investigating police about Jones' crime because he was not with Jones before, during or after Mr Brown's stabbing.


Conclusions - evidence


58. The Crown here, and in the Local Court, relied upon the evidence given by police investigators, Ms Maxwell, Mr Uhi, Ms Rowe and Ms Noble. That evidence establishes they submit that Mr Sagoa had information. He concealed that information and what he said to police was false and was intended to and did hinder their investigation of Jones' crime.


59. The defence submitted, below and here, that for various reasons these witnesses, particularly Mr Uhi, Ms Rowe and Ms Noble, had agenda's of their own and were, neither, credible, reliable, accurate nor honest. As a consequence, Mr Boland said I would reject their testimony or at the very least adopt considerable caution before accepting anything they said.


60. Magistrate Stevenson had concerns about the credibility of Mr Uhi but found both Ms Rowe and Ms Nobel to be "highly credible witnesses": Judgment 5/12/13, page 6. Nothing in my reading of the transcript caused me to reach a different conclusion.


61. Taking those matters into account, and noting the cautions required by s 165 Evidence Act, a review of the transcript leads me to the following inferences and conclusions, which I do not believe can be seriously disputed and I find proved beyond reasonable doubt:

(1) The appellant was with Jones before Mr Brown was stabbed.

(2) He was present at the party when Jones was stabbed.

(3) He left the party immediately after the stabbing with Jones before the arrival of police and ambulance.

(4) He was with Jones at other places that night.

(5) He was present when Jones admitted to others that he had stabbed a person.

(6) He was present when Jones was told Brown had died.

(7) The appellant was aware police were investigating the death of Mr Brown when he made his statement on 10 May 2014: exhibit 5.

(8) That statement contained important omissions and lies.

(9) The appellant was aware police were investigating the death of Mr Brown when he gave his interview on 10 July 2014; exhibit 8.

(10) That interview contained important omissions and lies.

(11) At Jones' trial the appellant maintained the lie he had left the party before the stabbing

(12) The appellant became a person of interest to police soon after the stabbing: exhibit 6. He was not arrested until 28 July 2010.

(13) It can be reasonably inferred that police were aware his statement of 10 May 2010 was not accurate soon after it was made.

(14) On 10 July 2010, Police put to him he was lying and had a motive to lie.

(15) It was the police thesis that the appellant lied and the only reason he had to lie was he was involved in the death of Mr Brown.


62. From these facts the following conclusions can be drawn:

(a) Having found he lied to police on 26 May and 10 June 2010 it is open to infer that he lied either because he knew that the truth would convict him and or that he wished to protect his friend Jones.

(b) The police had and have evidence to suggest at the very least the appellant was prima facie guilty of involvement in the affray and was an accessory after the fact to the murder of Mr Brown.

(c) The evidence before me suggests that conclusion was the correct one.

(d) The appellant undoubtedly had a right to stay silent in the face of police questioning but he did make a statement to police on 26 May 2010 and he did answer questions put to him on 10 June 2010.

(e) The statements that he left the party before the stabbing and was not with Jones after the stabbing were false.


Section 315 Crimes Act - Hinder Investigation


63. The prosecution case relies, so far as the s 315 Crimes Act offence is concerned, on evidence they submit establishes beyond reasonable doubt that the assertions made by the appellant in his statement of 26 May 2010 (exhibit 5) and his interview of 10 July 2010 (exhibit 8) were false and were made intending to hinder the investigation of a serious criminal offence committed by another person, here the murder by Anthony Jones of Mr Brown. It is enough that the police were hindered in "any way."


64. Section 315 Crimes Act requires some unlawful action be proved. Here the prosecution must prove that the appellant did something to hinder the investigation or discovery of evidence of the serious indictable offences committed by Jones.


65. The questions to be resolved are:

(1) Was there a false statement?

(2) Was it made with the necessary intent?

(3) Did it hinder the police investigation of the murder of Mr Brown by Jones?


66. I find beyond reasonable doubt that the appellant's assertions in his initial statement, his interviews and his evidence at Jones' trial that he left the party before the stabbing and had no contact with Jones that evening to be false.


67. The offender did not have to speak to police. He could have said nothing. Magistrate Stevenson concluded page 6 that: "The only inference to be drawn ...is that he intended to hinder police in their investigation of Mr Brown's death: Transcript 5/12/2013. I agree. However, importantly, s 315 Crimes Act speaks of hindering an investigation of discovery of evidence of a serious indictable offence committed by "another person."


68. The evidence before me leads to three alternative hypotheses. The appellant made the false statements intending to:

(1) Hinder the investigation of his own crime

(2) Hinder the investigation of Jones' crime, or

(3) Hinder the investigation of both their crimes.


69. When I consider what was actually said by the appellant in his statement, exhibit 5 and interview exhibit 8 it is clear that option 1 is the most likely. Certainly it remains a reasonable possibility, a possibility the prosecution have not displaced.


70. There is some evidence the police considered and made enquiries of a superficial nature to ascertain if there was any truth in the appellant's assertion he left the party early and went to Uncle Terry's. But, in reality, the actual hindering was the failure to provide an honest and accurate account of what occurred that night and what he and Jones did.


Section 316 -Conceal serious offences


71. As to s 316 Crimes Act the Prosecution submit the evidence establishes each element of the offence. The questions to be resolved are:

(1) Did the appellant know Jones committed a serious criminal offence?

(2) Did the appellant have information, which might be of material assistance in securing either Jones' apprehension and/or conviction?

(3) Is there an evidentiary foundation for a claim of reasonable excuse?

(4) If so has the Crown displaced that was there a reasonable excuse for his failure to do so.


72. There is no dispute that Jones committed a serious indictable offence. The evidence before me establishes at the very least Jones told the appellant what he had done. The evidence also establishes that the accused accordingly had information, which would have materially assisted the conviction of Jones.


73. The appellant did not give evidence. He gave an exculpatory account. It was not believed, as it was not credible. I have to assess the evidence before me. I am not confined to the case put by the appellant in the Local Court. An analogy can be drawn with trials involving the impact of intoxication on an accused's capacity to form the necessary intent: see Bellchambers v R [2008] NSWCCA 235. A trier of fact must consider the whole of the evidence. If a 'defence' is available and has not been negatived the appellant must have the benefit of the doubt.


Resolution


74. Section 315 and s 316 Crimes Act indicate the clear policy distinction drawn by parliament between unlawful action and unlawful inaction: see El- Zayat v R [2002] NSWCCA 138. Section 315 Crimes Act requires some positive action with the necessary intent. Section 316 Crimes Act punishes failure to act.


75. I can understand why Detective Ferns put this proposition to the appellant on 10 June 2010, at Q 356:


"That's why you're sitting in the seat right there. People wouldn't say that you were there, they wouldn't, there would be no reason for them to lie would there? But unless you were involved in the murder or in the stabbing or the fight that you would have a reason to lie, yeah? That's only sensible isn't it?"


76. If, as the evidence strongly suggests the appellant was present with Jones before and after the murder; and, if, as the evidence suggests, he was present with Jones during the murder, then despite his denials to police and evidence at Jones' trial, it can reasonably be inferred that the appellant had a powerful motive to conceal both his crimes and, as a consequence, Jones' murder of Mr Brown. He also had a powerful motive to hinder the police investigation of his own crime or crimes by making false statements.


77. As this evidence was reasonably available from the prosecution case it provides an evidentiary basis for, so far a s 316 Crimes Act is concerned, a lawful excuse - that the appellant did not wish to incriminate himself, and for the s 315 Crimes Act charge - that he was seeking to hinder the investigation of himself not Jones. On a review of all the evidence those reasonable hypotheses have not been excluded. As the appellant must have the benefit of any doubt he must be acquitted of each count.


Orders


78. The conviction appeal is upheld. I set aside the conviction and all other orders of the Court below.


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