Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Van der Vegt v R [2016] NSWCCA 279 Hearing dates: 15 August 2016 Decision date: 02 December 2016 Before: Hoeben CJ at CL at [1] Campbell J at [2] Button J at [15] Decision: (1) Leave to appeal granted. (2) Appeal against conviction dismissed. Catchwords: CRIMINAL – appeal against conviction – whether Crown Prosecutor invited jury to draw adverse inferences by reason of applicant's silence about certain matters – whether right to silence infringed Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules 1912 (NSW), r 4 Evidence Act 1995 (NSW), ss 89, 89A Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Category: Principal judgment Parties: Brenton James Van der Vegt Regina Representation: Counsel: G Brady SC (Applicant) C McGorey (Applicant) M Cinque SC (Respondent) Solicitors: Maggie Orman Pty Ltd (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2012/42054 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 June 2014 Before: DCJ Toner SC File Number(s): 2012/42054 Judgment 1. HOEBEN CJ at CL: I agree with Button J and the orders which he proposes. 2. CAMPBELL J: I agree with the orders proposed by Button J and with his Honour's reasons. 3. What I have written is supplementary to and in no way contradictory to Button J's reasons. My reasons assume familiarity with his. As his Honour has pointed out, the applicant's complaint was clearly covered by the principles discussed in Petty v The Queen; Maiden v the Queen (1991) 173 CLR 95; [1991] HCA 34. This is not a case where the applicant exercised his right to silence at all. Notwithstanding the provision of the usual caution by police at the commencement of the lawful search (Exhibit B pp 3 - 4), the applicant chose to engage in dialogue with the officers throughout, freely answering their questions. At no stage did he refuse to answer a question. 4. During the process, the applicant said that his ex-wife knew where the key to the gun safe was and had access to it (Exhibit B pp 29, 30) and some of the items in the safe belonged to his ex-wife (Exhibit B p 33). When being asked whether there was anything in the former main bedroom he wished "to declare before we start": "see [the ex wife] came in here when I was away, … [I] don't know if she put anything in the safe when I was not here, because [she] would have known where the keys were." He then identified some items in the bedroom which he said had been in the safe "before I went away" (Exhibit B p 35). That his ex-wife had access to the safe was part of the explanation he gave at the trial for saying that he had no knowledge of the six incriminating DVDs in the gun safe (219.15T; 220.45 – 221.5T). However, he had said to police, somewhat inconsistently, that he put items in the gun safe "so the [ex-wife] can't take it" (Exhibit B p 27). 1. As Button J has pointed out, the Crown Prosecutor in cross-examination drew the applicant's attention to the passage I have referred to at the end of [3] (230.35T) and sought to show that he accessed the gun safe with some regularity (230.45T); was aware when the police were questioning him that "there's probably porn in there, that it was all just adult" (231.10T); that the adult pornography and the child pornography were "intermingled" (231.45 – 232.10T); the discs were in similar containers and labelled in his handwriting (232.15T; 233.10T); and that he could not say if any one of the discs had anything to do with his ex-wife (233.15T). 2. The point made to the jury by the prosecutor (5 June 2014 14.5 - .40T) was that six of the DVD's in the locked gun safe contained pornographic images of children, but when the DVDs were laid out during the search "at no point did he say 'I've never seen that before', because he knew what was in them and he knew what was on them". The main thrust of the cross-examination I have referred to was that the jury should not believe the applicant when he said he had no knowledge of the discs containing child pornography found in the gun safe (219.20T). The argument suffered somewhat, with respect, from a tendency to elide the explanation for the images on the computer: that this material had been downloaded inadvertently and he believed his ex-wife had deleted it; with the explanation for the material in the safe: that he had no knowledge of it, his wife had access to the gun safe, and a motive for planting it there. They were in fact discrete matters. But the effect of what was put to the jury was that they should reject both explanations. The Crown Prosecutor reminded the jury that acceptance or rejection of the evidence of the applicant was a matter for them, although she argued that they should "reject it completely out of hand". 3. The evidence of the applicant's ex-wife was contrary to his. She said that she found child pornography on the applicant's computer on one occasion and did in fact delete it. She said this occurred on 20 October 2011 after their separation (165.30T). She denied it was in June 2010 while they were still together (132.5 - .20T). She denied any knowledge of the gun safe, apart from the applicant "talking about getting" one (135.15T). She had "no idea" where the keys to the safe were kept (125.20T). She was adamant that she had not "had access to the gun safe". Nor had she even "seen the gun safe" (136.30T). 4. The ex-wife admitted entering the applicant's home in his absence, and without his permission, on 22 December 2011, to take some items of property. She gained access by inveigling a key from the real estate agent. She accepted that she may have modified items, which she said were personal items, on the computer by deleting them that day, "deleting all … history" (149.45T). She accepted she had the capacity to access a computer and to burn images onto a "CD" (161.35T); that she could delete things (162.20T); and on the occasion on which she deleted child pornography she did not "search through absolutely every single file" (162.45T). 5. She agreed that when she said she found the images on 20 October 2011, she and the applicant were negotiating a settlement of their matrimonial property. Even though she was a child care worker and a mandatory reporter for child sex offences, she decided not to exercise her duty to report the matter at that stage because she didn't want to prejudice the property settlement (165.30 – 166.5T). She denied she threatened the applicant's parents (166.15 - .35T). She again denied having access to the gun safe, saying the gun safe was not in the house when she lived there (166.45T). She accepted that she eventually reported the child pornography to the police within two or three days after the property settlement was finalised (168.45 – 169.15T). 6. Defence counsel strongly put to the jury that the evidence of the ex-wife should not be believed. It was put that she was not a witness of truth (24.20T). It was put that she was a manipulator (26.20T) and she had the capacity to operate the computer. The defence case was that the ex-wife had planted the material for the purpose of ruining the applicant. 7. It's obvious that the credibility of each the applicant and his ex-wife were very much put in issue at the trial. The learned trial judge directed the jury in perfectly conventional terms that the applicant "did not have to give evidence in the case … he could have sat mute" (summing up T 15); that he bore no onus of proof; and was presumed to be innocent unless and until the crown proved to the jury's satisfaction beyond reasonable doubt he was guilty as charged. The jury were told that if they accept the evidence of the applicant, he must be acquitted (summing up 16T). The jury was also instructed: "It is not the position that you have to believe the accused is telling the truth before the accused is entitled to be acquitted. As I have previously emphasised to you throughout the whole of this case, it remains the position the Crown must establish beyond reasonable doubt the charges which it brings against the accused and it is never for the accused to prove that he is not guilty except in the very limited circumstances that I have described including that he is not guilty". The jury were told that they did not have to accept the accused's evidence to acquit him. Even if they did not accept his account, they must acquit if they are "still left with a reasonable doubt as to whether the Crown has proved its cases beyond a reasonable doubt". 1. His Honour also reminded the jury of the defence case in relation to the ex-wife's motivation to ruin or destroy the accused (summing up 28T). His Honour reminded the jury that the ex-wife was prepared to lie to the real estate agents to gain access to the applicant's home in his absence. 2. As I have said, I agree with Button J that the conduct of the trial by the Crown Prosecutor did not abrogate the accused's right to silence and notwithstanding some elision of the different explanations given by the accused for the material the subject of each count, there was no departure from the legal standard of a fair trial. The issues for determination by the jury were clearly defined by the conduct of the case on the part of each party and the jury, in my opinion, were adequately instructed as to their legal obligations in resolving those issues. The question of the guilt or innocence of the accused turned on disputed questions of primary fact, the resolution of which depended in no small part on the view the jury formed of the credibility of the applicant and his ex-wife, bearing in mind where the onus lay and the criminal standard of proof. It was well open to the tribunal of fact to reject and accept different parts of the evidence of each of them. 3. These were commonplace issues and my review of the evidence and arguments at trial is not suggestive of any error depriving the accused of a fair possibility of acquittal. 4. BUTTON J: Background 1. On 2 June 2014 in the District Court of New South Wales at Sydney, Brenton James Van der Vegt (the applicant) was arraigned before Judge Toner SC and a jury panel. The indictment contained two counts. Each of them averred that, on 8 February 2012 at Bourke, the applicant had possessed child abuse material. The applicant pleaded not guilty to both counts, and the trial commenced immediately. 2. At the end of the trial, the jury returned a verdict of not guilty on the first count (which related to material found on a computer at the home of the applicant), but guilty on the second count (which related to material found on computer discs found in a gun safe at his home). 3. The applicant was subsequently convicted and sentenced to a term of imprisonment. There is no application for leave to appeal against that sentence which, by the time of the hearing before this Court, had been completely served in any event. Review of evidence relevant to ground 1. The Crown case at trial may be shortly stated, as follows (of course, in recounting the Crown case with regard to the first count, I do so for the purposes of context only, and give full weight to the presumption of innocence with regard to that allegation). 2. On 8 February 2012, the police executed a search warrant at the home of the applicant. They did so after having been informed that the applicant may have child abuse material at that location. At the time, the applicant was living there alone, he and his wife having separated as a result of the breakdown of their marriage. 3. Found on the computer were files that were child abuse material. As I say, I approach that fact on the basis that the applicant is innocent of possessing that material. 4. Found inside a locked gun safe were a number of discs. Some of the discs contained sexual material depicting unknown adults, some of the discs contained sexual material depicting the applicant and his wife, and some of the discs unquestionably depicted young children in sexual settings, and constituted child abuse material. 5. The entirety of the execution of the search warrant was recorded on a video camera, and the disc of that recording became Exhibit A in the trial. A transcript of that disc became Exhibit B, and was provided to the jury. 6. The applicant spoke at length to the police whilst they were executing the search warrant. A portion of that video was relied upon by senior counsel for the applicant in support of the ground of appeal. The video was played in the hearing before us, and made available after the hearing as well. 7. The following is the transcript of the central portion, derived verbatim from Exhibit B, but also annotated by me with regard to the times at which things were said and at which events occurred, based upon my repeated viewing of the video. SENIOR CONSTABLE JONES said, "There's a gun safe in here." (37:36) BRENTON VAN DER VEGT said, "Yeah. I don't have the guns because they got taken back to the station." SENIOR CONSTABLE CAMPBELL said, "Yeah I am aware of that, the .22. Is that right" BRENTON VAN DER VEGT said, "Yeah." SENIOR CONSTABLE CAMPBELL said, "We will need to though, have you got the keys on you to access that because we will need to inspect to make sure?" (37:49) BRENTON VAN DER VEGT said, "Not sure to be honest, not sure what's in there, I am not sure what I put in the safe from last time, probably is videos and CD's and things in there so the missus cant take it." SENIOR CONSTABLE JONES said, "Is there a trick to opening that." (38:27) BRENTON VAN DER VEGT said, "No turn, turn to the right then the handle, yeah. Yeah there is some CD's down the bottom there." SENIOR CONSTABLE CAMPBELL said, "I'll just take a. I'll just take an image as is." [video shows unidentifiable items in bottom of safe, and photos being taken of them] (39:13) BRENTON VAN DER VEGT said, "And that will probably be porn but its just adult." SENIOR CONSTABLE CAMPBELL said, "Ok." [Senior Constable Jones obtains something from safe off screen] BRENTON VAN DER VEGT said, "You know. As far as I know. That's a scope." SENIOR CONSTABLE CAMPBELL said, "Yep." SENIOR CONSTABLE JONES said, "Do you want photo's like that or just do it outside." SENIOR CONSTABLE CAMPBELL said, "Just open them up yep. Ok that first one and second one titled mixed video." [Senior Constable Jones opening disc cases and showing discs] (39:51) BRENTON VAN DER VEGT said, "Yeah its all just mixed photo's and video's like I said mate as far as I am aware mostly adult by the look of it its adult." SENIOR CONSTABLE CAMPBELL said. "Yep, so pornography but you say adult." (40:01) BRENTON VAN DER VEGT said, "Yep, yeah." SENIOR CONSTABLE CAMPBELL said, "Ok." (40:03) BRENTON VAN DER VEGT said, "Because I think there you will probably find one with D & B written on it which is a copy of us." [Senior Constable Jones opening disc cases and placing them on the carpet] SENIOR CONSTABLE CAMPBELL said, "Ok." (40:17) BRENTON VAN DER VEGT said, "I can't even remember what's on them." SENIOR CONSTABLE CAMPBELL said, "So these ones here that the officer is putting out now same with that." [Senior Constable Jones sealing disc cases and placing in a pile] [40:42 – Senior Constable Jones produces further disc cases from safe] BRENTON VAN DER VEGT said, "Same thing." (40:51) SENIOR CONSTABLE CAMPBELL said, "Yep." (40:56) BRENTON VAN DER VEGT said, "It's the new what do you call it umm videos then instead of magazines and the ex was into a bit of swinging so. [officer lays out discs] (41:03) Oh more ones. (41:26) I need to get more cases. (41:37) Yeah see that's a back up, that's our personal." SENIOR CONSTABLE CAMPBELL said, "Oh yep, the D & B." (41:41) BRENTON VAN DER VEGT said, "Yeah." SENIOR CONSTABLE CAMPBELL said, "Ok that's fine." (41:55) BRENTON VAN DER VEGT said, "Actually I thought there was a flash with that on it. It should be there somewhere." SENIOR CONSTABLE JONES said, "There is, I just have not pulled it out yet." (42:01) BRENTON VAN DER VEGT said, "Oh yep was it in there as well was it?" SENIOR CONSTABLE JONES said, "Yep." [USB stick produced in palm of Senior Constable Jones and photographed] (42:13) BRENTON VAN DER VEGT said, "Same thing back up of our stuff, the flash needs to come on maybe." SENIOR CONSTABLE CAMBPELL said, "Yeah it's fine." 1. Subsequently, the police located a fingerprint of the applicant on one of the disc cases that contained a disc featuring child abuse material. 2. In short, the Crown case at trial was that one could readily infer that the child abuse material was in the possession of the applicant on the day in question: he was the only person who resided at the home at that time; the discs containing the child abuse material were found in a locked safe; and one of the relevant disc cases bore his fingerprint. 3. The accused gave evidence denying that he possessed the child abuse material. The alternative hypothesis put forward in the defence case was that the estranged wife of the applicant could have entered his home in his absence, disabled the alarm (she knowing its code), located the key to the safe (it not being secreted), and placed the unlawful material in the safe. The hypothesis was that she could well have done that as an act of revenge, bearing in mind the bitterness surrounding the breakdown of their marriage. Conduct of Crown Prosecutor 1. In cross-examination, the Crown Prosecutor asked the applicant a number of questions about what he was recorded as having said to the police when the discs were produced from the safe during the execution of the search warrant. The following verbatim portions of the cross-examination (4 June 2014, TT 232.22-41) were relied upon by senior counsel for the applicant before us: Q. Now, as the police were pulling the CDs out of the safe, you were telling them what was on them. A. I was referring to the DVDs and the CDs as having adult material, yes. Q. Then there was a DVD called D and B and you explained to the police what was on that. A. Yes. Q. You continued as the police pulled out the videos, what was on them. A. I don't think I specifically said on every single DVD what was on it, no. Q. Police laid them out on the floor. You didn't at any time say to the police, "Look, I've never seen that DVD before in my life," did you? A. I didn't see the labels when they were putting them out, sorry, Crown. Q. You saw them all lined up on the floor. A. No, I didn't see the labels. Q. You didn't say, well, "That's not my CD. I've never seen that before." A. No. 1. The following portions of the final address of the Crown Prosecutor (5 June 2014, TT 14.5-28) were relied upon by senior counsel for the applicant before us: At no time as the police are taking the CDs out – the accused is sitting right next to them while this is happening. All the CDs are laid out on the floor. At no time did the accused say I've never seen that before, never seen that before. They were laid out in front of him. He knows exactly what – he's labelled all his adult porn with labels. At no point in time did he say I've never seen that before, never seen that before, because he knew what was in them and he knew what was on them. Then have a look at what he told the police in the search warrant video and compare that to what he says in the witness box. In my submission he says completely different to what he initially told police. If the accused had in fact innocently inadvertently downloaded the child porn why wouldn't he simply say to the police, oh look, this is what happened, I was looking for adult porn, I inadvertently downloaded it but my wife tried to delete it and deleted it. Why wouldn't he tell them that? Members of the jury, the accused was caught red-handed with child porn on his computer and on six DVDs locked in a safe, a gun safe in his house. There's no doubt about that. He's stuck with that. I'd suggest he's realised that he has to come up with some other version to explain why it's on his computer in the first place. At no time did he tell police this innocent version that he said in the witness box, look, I inadvertently downloaded it, not one mention of it. You're the judges of the facts. You make up your own minds as to whether you accept what he says. 1. Thereafter, defence counsel addressed, and his Honour summed up. At no time did defence counsel at trial complain to the learned trial judge about any aspect of the cross-examination that I have extracted. Nor did trial counsel make any complaint whatsoever about the portion of the final address of the Crown Prosecutor that I have extracted. Ground 1. A single ground was pressed at the hearing of the application: The trial miscarried by reason of the Crown Prosecutor inviting the jury to draw adverse inferences against the applicant by reason of his silence about particular matters during the execution of the search warrant on 8 February 2012. 1. In a nutshell, senior counsel submitted that, in cross-examining the applicant and thereafter addressing the jury with regard to that cross-examination, the Crown Prosecutor had impugned the applicant's right to silence. It was said that the jury was asked to draw an inference from the silence of the applicant with regard to the discs containing the child abuse material when he was being questioned by the police. 2. It was further submitted that that was contrary to the explicit prohibition to be found in s 89 of the Evidence Act 1995 (NSW). That section is as follows: 89 Evidence of silence generally (1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused: (a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. (2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. (4) In this section: inference includes: (a) an inference of consciousness of guilt, or (b) an inference relevant to a party's credibility. (There was no suggestion that s 89A of the Evidence Act had any application to this trial.) 1. Furthermore, to the extent that the Crown Prosecutor submitted in her final address that "at no point in time did he say I've never seen that before, never seen that before, because he knew what was in them and he knew what was on them", the submission was that that could only be understood as a submission that the applicant had demonstrated a consciousness of guilt by reason of his silence. Senior counsel submitted that the judge had never directed the jury about how to use that alleged evidence of consciousness of guilt, although he did acknowledge that the Crown Prosecutor had never used the phrase "consciousness of guilt". 2. Senior counsel for the applicant rejected the way in which he asserted the Crown had incorporated the applicant's lack of response into its case. He relied upon Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34 for the proposition that a jury must not use silence as evidence of guilt (except in very unusual circumstances, none of which apply here), and must not be invited to do so. 3. Senior counsel for the applicant submitted that the entire process of displaying the discs only took a short period: approximately three to four minutes. He submitted that it was important that the applicant was not shown each individual disc for comment; rather, the discs were displayed in a more general way. He submitted that the applicant had subsequently put the explanation before the jury that he had not seen those specific DVDs, and that was the reason why he had not made any comment differentiating them. 4. He submitted that it would have been appropriate for the Crown to raise the issue of allegedly contradictory statements before the jury, highlighting whether the applicant said something in the search warrant video that was inconsistent with the version he put forward at trial. But he submitted that the silence of the applicant, as opposed to any alleged inconsistency in his version, could not be used against him. 5. Finally, senior counsel for the applicant accepted that r 4 of the Criminal Appeal Rules 1912 (NSW) stood in the way of the success of the ground. But he submitted that the right to silence, and the need for it to be fully respected in trials by jury of alleged crimes, are so fundamental that the position adopted by trial counsel could not stand in the way of the conviction being quashed, if this Court were satisfied that a miscarriage of justice had occurred. Determination 1. Turning to my determination, I do not accept that any miscarriage of justice has occurred in this case. That is because, having watched Exhibit A more than once, I do not accept that the applicant exercised his right to silence at all during the search warrant. For that reason, I do not consider that the Crown Prosecutor was asking the jury to draw any inference from silence on the part of the applicant. It follows that I am not persuaded that that right has been wrongly impugned. 2. As I have said, I have added to the extract from Exhibit B the times at which the applicant said various things to the police, and the events then occurring. It can be seen that the conversation between the applicant and the police was a continuous one, during which there was no significant pause whilst the applicant stopped speaking. In particular, it is not the case that the applicant spoke freely with regard to the discs that showed sexual activities of adults (whether strangers, or himself and his wife), but then remained silent with regard to the discs containing child abuse material. To the contrary, as I have said, there was a flow of conversation between the applicant and the police as Senior Constable Jones produced the various items from the gun safe. 3. It is perfectly true that, for many years, the criminal justice system has firmly set its face against drawing inferences from a suspect or accused exercising his or her right to silence, whether outside the courtroom (Petty v The Queen; Maiden v The Queen) or within it (RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25). 4. But that was not the case here. As I have said, as a matter of evidence the applicant exercised his right to silence neither completely (that is, by saying nothing at all about the contents of the safe), nor even partially (that is, by commenting on some items as they were produced, but not others). As I have said, there was a flow of discussion on his part. And at no time during those discussions did the applicant say to the police that he did not recognise any of the discs produced from the safe. 5. For that reason, I do not accept that the submissions made by the Crown Prosecutor to the jury in final address impugned the right to silence. To the contrary, when seen in the context of what actually occurred during the execution of the search warrant, those submissions must be understood as being that the version given by the applicant in the witness box was inconsistent with the earlier version given by the applicant to the police at his home. In particular, they must be understood as being a submission that the version given by the applicant at trial (that he had never seen the discs in question before, and that they must have been planted in the locked safe in his house) was not consistent with the version originally given to police (that the discs produced depicted adults, drawing no distinction between discs that he recognised and discs that he did not). 6. For the same evidential reasons, nor do I consider that the slightly more refined question of whether one may be entitled to draw an adverse inference from the selective exercise of the right to silence arises in this application. That is because, as I have said, watching the disc does not reveal any period during which the applicant remained silent. 7. Furthermore, the fact that neither defence counsel nor the trial judge himself interpreted the final address of the Crown Prosecutor in the way contended for in this Court strongly supports my interpretation. By that I mean, if either of them had considered that the right to silence was being impugned by a Crown Prosecutor in a trial by jury, I believe that the Crown Prosecutor would have been the subject of prompt and valid criticism. 8. In other words, the silence of defence counsel does not merely play a role with regard to r 4 of the Criminal Appeal Rules. It also plays a role in me coming to the view that the Crown Prosecutor was, in truth, drawing a distinction between two inconsistent versions, not between silence and a version subsequently given. 9. Finally, I do not interpret the final address of the Crown Prosecutor as being that the applicant had done something or said something as a result of a consciousness of guilt on his part. Rather, I interpret what was said as being a submission that the jury could use the allegedly inconsistent versions given by the applicant as part of reasoning towards a verdict of guilty. There is nothing wrong with such a submission. 10. For those reasons, founded upon the evidence placed before the jury, I am not persuaded that any miscarriage of justice occurred in this case. As a result, neither r 4 of the Criminal Appeal Rules nor the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) requires consideration. Proposed orders 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal against conviction dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2016