AFTER spending a year in Long Bay jail, disability advocate David Hogg has had his conviction for an historic sexual assault quashed, and been acquitted of the charges against him in a Court of Criminal Appeal decision handed down yesterday.
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While the three judges sitting as the NSW Court of Criminal Appeal agreed that Mr Hogg had suffered a miscarriage of justice in his trial, only two of them, Justice Richard Weeks White and Justice Robertson Wright, ordered his acquittal.
The third judge, Justice Helen Wilson, said in the written judgement that the Crown case was "relatively strong" and she would have returned the matter to the District Court.
The presiding judge, Justice White said the trial miscarried for two reasons. First, the jury should not have been allowed to draw an "adverse inference" from Mr Hogg exercising his right to silence when first questioned by police, because the prosecution had not challenged this during the trial. Second, the prosecution "improperly undermined" evidence of Mr Hogg's good character but was not corrected by the trial judge.
Mr Hogg's defence team had not objected at the time but Justice White said the trial miscarried regardless. Mr Hogg was sentenced in June 2018 and appealed in February 2019. Having served his 12-month non-parole and a "significant part" of his parole was a reason it was "not in the interests of justice, in its wider sense", for a new trial over an "alleged offence" from more than 30 years ago.
As founder of Hunter disability group Lifestyle Solutions, Mr Hogg suffered an extraordinary fall from grace when he was convicted in February 2018 of sexual intercourse without consent with a 16-year-old schoolgirl who'd been in his care for work experience when he was a married 35-year-old Baptist minister in western Sydney in 1988.
Yesterday, Mr Hogg said the judgement showed he had been treated unfairly in the trial and not given the opportunity to defend himself properly because of directions to the jury.
"I have said throughout this process that I am not guilty of the charges I was accused of, so obviously I am very pleased about the vindication of the court judgement today," Mr Hogg said. "However I cannot replace what I have lost through this process - my reputation and my career, not to mention the financial costs of defending myself.
"I am thankful to my family and many friends who have stood with me in this. I now have to try and put my life back together. There are no winners in all of this."
Mr Hogg said he held "no malice" against the woman who accused him, Helen McMaugh, of Queensland, who applied to have her identity made public after the trial. He said it was clear from her trial evidence she had suffered at the hands of someone, but it "wasn't me".
Ms McMaugh said she was devastated by the decision, and asked why it was handed down "without warning" between Christmas and New Year's Day." She believed "they should have ordered a retrial as Justice Wilson said".
"This was never about sending David Hogg to jail, but I did feel I had to speak out because I believed the same thing had happened to other people. This decision doesn't question any of my evidence, it's just the way it's been summed up."
In last year's trial, Mr Hogg agreed he had gone for a drive with Ms McMaugh (at that stage Year 11 Carlingford High student Helen Cassis) but denied they had stopped under the Sydney Harbour Bridge, as she alleged, or that he had sexually assaulted her by digital penetration.
In saying she would have sent the case back to the District Court, Justice Wilson said she disagreed with Justice White's description that the "offence charged was on the lower end of the spectrum of seriousness of possible sexual offences".
"The alleged offence is very serious," Justice Wilson said. "It involves an allegation of sexual assault by a man in a position of authority upon a teenager who was vulnerable to abuse in the circumstances in which the assault is said to have occurred."
She said some of Ms McMaugh's evidence was confirmed by "apparently credible witnesses", with evidence she was distressed and had complained to others at the time. She said there was evidence Mr Hogg was at the school the next day or so, although he denied it.
"This would be a relatively short trial, and the expense of the proceedings modest," Justice Wilson wrote. "Were the appellant to be found guilty by a jury, he would be entitled to have the sentencing court take into account the time already served relevant to the conviction now set aside.
Justice Wilson said the chance of Mr Hogg being returned to custody were "negligible" given he had finished his non-parole period.
"The fact of a conviction being recorded, were there to be a verdict of guilty from a jury, is of itself a significant matter, which has a broader importance in the context of child protection," Justice Wilson wrote.
Justice White had said there was "certainly evidence to justify a conviction" and that "an acquittal arising from errors in the conduct of the trial" would not vindicate Mr Hogg nor meet Ms McMaugh's "entitlement to have her accusation determined by a jury.
"If this appeal had been able to be heard and determined immediately after the appellant's conviction in the District Court, I would have set aside the conviction and ordered a new trial," Justice White wrote.
"But that has not happened."
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Ian Kirkwood
Reporting journalist at the Newcastle Herald since 1987. Editorial writer, general reporter, industrial relations, industry and coal.
Reporting journalist at the Newcastle Herald since 1987. Editorial writer, general reporter, industrial relations, industry and coal.
