Principle of legality

Hogg v R [2019] NSWCCA 323

In this sexual assault appeal, the accused said the principle of legality should prevent his right to silence during official questioning being eroded by any adverse inference drawn under s 89(1) of the Evidence Act 1995.  This was rejected (at [100]).

The principle of legality requires clear words in legislation to adversely impact fundamental rights7.  Both the provision here and extrinsic materials, however, expressly showed an intention to affect the right of silence.  As noted in Episode 13, the principle of legality cannot frustrate legislation that is ‘plain on its face’8.  The principle exists ‘to protect from inadvertent and collateral alteration of rights’9.

This case is from Episode 57 of interpretation NOW!


7 Lee [2013] HCA 39 (at [313]), cf Pearce 9th edition (at [5.1-5.4]).

8 WB [2020] NSWCA 7 (at [45]), cf Melco [2020] NSWSC 53 (at [49]).

9 NAAJA [2015] HCA 41 (at [81]), Caratti [2017] FCAFC 177 (at [25]).