Regina v Anderson

[2002] NSWCCA 141

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Miscarriage of justice
5. › Cross-examination of accused
6. › Right to silence
7. › Whether cross-examination impermissibly invited adverse inference from failure to mention defence at time of arrest
8. › Whether trial judge's directions adequate to cure prejudice
9. › Evidence Act 1995 (NSW), s 89
1. Evidence
2. › Criminal proceedings
3. › Right to silence
4. › Inference from silence
5. › Whether denial of credibility of late defence by reason of accused's earlier silence constitutes impermissible erosion of right to silence
6. › Evidence Act 1995 (NSW), s 89

Quick Take

Cross-examination of an accused that invites the jury to disbelieve a defence because it was not raised at the time of arrest constitutes an impermissible erosion of the right to silence under Petty v The Queen. A judicial direction on the right to silence given during summing up must be linked to the specific sting of the Crown's suggested inference — a general direction that the accused's exercise of the right to silence should not be held against them may be insufficient if it does not address the specific suggestion that the defence was fabricated because it was raised late.