Silence may be golden no longer

Federal Agent Phil Kowalick looks back at the origins of the ‘Right to Silence' and some legal precedents which may herald that Australia is following England in placing some limits on that Right.

This work is a summary of a Grad. LL.B Honours Thesis written last year by Federal Agent Kowalick who is now completing the Graduate Diploma in Legal Practice and is the Executive Staff Officer to Commissioner Mick Palmer. A complete copy of the thesis is available from the AFP Library at the Barton Training Facility in Canberra.

The power to compel an accused person to take an oath swearing to tell the truth regarding the commission of a suspected offence was established by The Court of the Star Chamber in England in 1487.

In the five centuries since then, the concept of the Right to Silence has evolved so that today in Australia, an accused person is not required to answer questions.

This could perhaps be seen as an over-reaction to the tyranny of the practices of the Court of the Star Chamber, but which also now hinders properly conducted criminal investigations and provides organised criminals with a shield against justice.

Limitations to the Right to Silence were introduced by the UK Parliament in 1994 so that the “court or jury is permitted to draw inferences from the defendant's failure, when questioned or charged, to mention a fact later relied on in defence which the defendant could reasonably have been expected to mention when questioned”.1

Introduction

The Privilege Against Self-Incrimination (the Privilege) produces three evidentiary rules2: the accused (and originally the accused's spouse) is an incompetent witness for the prosecution (and originally also for the defence); the accused has a right to remain silent, both at trial and when examined by law enforcement authorities before trial; and witnesses and citizens generally, have the right to refuse to answer questions or produce documents that might be self incriminatory.

The Right to Silence (the Right) is a recent invention3, having come of age following the introduction of the Criminal Evidence Act 1898 and the Judges Rules in 1912. It was well known in the early 19th Century although its scope and the circumstances under which it could be applied were uncertain. That confusion may have arisen from the imprecise use of the terms ‘right to silence' and ‘privilege against self–incrimination'.

The Right may not be ‘in the interests of the Criminal Justice System'4 because it creates an unreasonable advantage for the criminal. Paul Schramm asserts that, for example, where a person is charged with being unlawfully in possession of money they may exercise the Right during police questioning only to provide what the courts consider to be a satisfactory explanation when the matter eventually comes to trial. The community is entitled to expect that person to give an account to police so that proper investigation can be made into the circumstances surrounding the money before the matter goes to trial.

Deane J expressed concern about the problems associated with the integrity of a confessional statement,5 obtained from a suspect while in police custody, where the confessional statement was unsigned and there was no independent corroboration that it had been freely made. He was most concerned about the intimidation the suspect may feel whilst in the police station; the fact that police are practiced witnesses in court and the suspect is not necessarily as accomplished; and that police practices in the police station are not as transparent as those adopted in the court room and therefore are open to question.

Police practices however have been substantially amended in the past 25 years and following the decision in McKinney v R6 and the introduction of legislation in all jurisdictions, police interrogations of suspects are video and/or audio-taped wherever possible. Audio-taping interviews between police and suspects is standard procedure and in many police stations, all watch-house movements are video-taped.

The Privilege only arises where a witness in court proceedings could render themselves liable to penalty for treason or an indictable offence if they answer the questions put to them.7 The accused may choose to remain silent for a number of reasons, including seeking to protect another person, or not wanting to upset or embarrass themselves.

History of the Right to Silence

In 1994 the British Parliament8 amended the Right. The judge can now direct the jury on the ‘proper use'9 of witnesses' silence during official questioning either pre-trial or at trial. The amendment acknowledges that a jury will consider the witnesses' failure to answer questions where an answer may rebut prosecution allegations.

The High Court's decision in Petty and Maiden v The Queen10 in 1991 preserved the common law with respect to the Right to Silence. Two years later in Weissensteiner v The Queen11 the same Court approved greater judicial comment on the accused's failure to speak at trial.

The decision in Weissensteiner's case12 recognises limitations to the Right. It indicates that the High Court is prepared to consider reform acknowledging that judicial comment may be appropriate in cases where the accused has knowledge peculiar to them but remains silent at trial. Section 2013 provides the statutory basis for the trial judge to comment to the jury about the silence of the accused at trial.

Development of the Privilege Against Self-Incrimination

Before the emergence of the Privilege, accusations and swearing an oath played an integral role in determining the guilt of the accused. The accuser was required to make an accusation in very specific terms14 and the accused was able to establish his innocence by two witnesses swearing their good character on oath.15 If good character was established the accused was considered trustworthy and free of previous accusation and he would be able to establish his innocence simply by swearing it on oath. If his innocence was not established he would face trial by ordeal. By 116616 this defence had become unpopular because securing an acquittal was too easy.

The Court of the Star Chamber

In the Court of the Star Chamber the accused was tried summarily by affidavit and interrogation once a charge had been brought by the Attorney-General. Torture was used to secure confessions and fine, imprisonment, pillory, branding or loss of ears were usual punishments. The Ecclesiastical Courts adopted the inquisitorial system and the King's Council employed it in criminal cases.17

In 1350 a statute18 was passed which provided that "[F]rom henceforth none shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law . . .” Then in 1368 another statute19 was passed which said that no man should “be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land . . .”


Torture was used to secure confessions and fine, imprisonment, pillory, branding or loss of ears were usual punishments.

[pic: www.odyssy.net/users/erica/
wicca/torture.htm]

The Trial of John Lilburne [e] and John Wharton for the Printing and Publishing of Siditious Books (1637) 3 How State Tr 1316

There is no evidence that the common law courts of the 16th Century opposed the idea that the accused could be required to testify in his own trial but there had to be an accusation made in the proper form.

John Lilburne would not have refused to answer questions put to him because he did not object to being compelled to testify. His objection centred on the fact that he was being interrogated on matters where there was no Bill of Presentment.20 This reasoning forms the cornerstone of the modern Privilege because the community does not expect a person to be their own betrayer.

It was only after Lilburne's case21 that the Privilege became known. The rule was very broad but essentially the witness22 “is protected from answering questions, or interrogatories,23 and producing documents.”24 The Privilege is a personal one and does not extend to a witness claiming it where answering questions will incriminate another person, or in cases such as the production of public documents in a person's possession.

The competence of the accused to give evidence

In the period between the abolition of the Star Chamber in 1641 and the end of the 19th Century, the accused in criminal proceedings was considered not competent to give evidence. It was thought that to allow the accused to play an active role would lead to a greater incidence of perjury.

The common law proposed “to safeguard tribunals from error by restricting them from taking the evidence of certain classes of witnesses who were supposed by reason of their antecedents, or their relation to the matter at issue, to be more likely to mislead than to aid the tribunal in its search for the truth”.25 Nineteenth Century legislation26 rectified this situation and today almost all persons are competent to give evidence.

The Privilege Against Self-Incrimination

John T McNaughton27 writes that the Privilege developed out of the opposition to the ex-officio oath of the ecclesiastical courts and the opposition to incriminating questions in the common law courts.

The basic privilege that no-one should be forced to be his own betrayer28 is extended to every citizen. It is the basis of the doctrine that the prosecution must prove its case. Section 12829 reflects the common law position that is the foundation of our legal system. The Privilege operates to keep what may otherwise be relevant evidence out of court, is based on public interest grounds30 and on the doubt surrounding the obtaining of confessions by police for admission into evidence.31

Invoking the Privilege however is not without difficulty. Leave of the court must be sought and before the Privilege is exercised the court must be satisfied that there are reasonable grounds to believe that the answer may incriminate the witness; 32 and that the claim is bona fide. Where the witness has already made admissions that may be proved against them, it may be difficult to ensure that the claim is for their benefit and not for the benefit of the defendant.33

In Breber v Perry34 a witness called for the prosecution, in respect of charges against his friend, had already made a statement which implicated both himself and the accused in the offence. At the trial he sought to claim the protection of the Privilege however, the court held that the claim must be valid and legitimate. Since he was not invoking it to protect himself, but to protect another person, the claim could not stand.

The Right to Silence distinguished

The Right to Silence and the Privilege against Self-Incrimination are terms often used interchangeably, yet they are distinct propositions applied in different ways that have different limitations. The Right in Australia operates pre-trial so that the accused does not have to answer questions at the police station. It also applies at trial so that the suspect does not have to give evidence in support of their defence at trial.

The doctrine has been criticised for many years, notably by Jeremy Bentham in 1825, when he said ‘If all criminals of every class had assembled and framed a system after their own wishes, is not this rule the very first which they would have established for their security?

Innocence never takes advantage of it. Innocence claims the right of speaking, as guilt invokes the privilege of silence.'35

Pre-trial silence in Australia

Concern arises where a suspect is detained by police for the purpose of questioning in relation to an alleged offence. The matters raised by Deane J in Carr v The Queen36 relate to the intimidation, fear and powerlessness the suspect may feel during detention and the possibility that those feelings will translate to the suspect allegedly giving a confessional statement. The accuracy and integrity of that confession is highly questionable when there is no corroboration or where the confession is not signed by the suspect.Judicial warnings to the jury to be cautious in considering the evidence of an uncorroborated and unsigned confessional statement may operate to avoid a ‘perceptible risk of injustice arising from the circumstances of the case'.37

Carr v The Queen (1988) 165 CLR 31

This case concerned an alleged confessional statement of the accused that was unsigned and was uncorroborated by an independent source. A second police officer averred that “the interrogation procedure book” had been followed. The point is that police testimony of disputed confessions cannot be trusted, not because police are inherently liars, but because the suspect is often alone and unsupported in the police station. The decision in Carr's case38 was split 3:2 holding that a direction to the jury about the dangers of accepting at face value the uncorroborated confession was inadequate in the circumstances.

Deane J argued that the corroboration warning should be mandatory in cases where the police alleged the confession was made while the suspect was compulsorily detained.

Duke v The Queen (1994) 180 CLR 508; (1989) 63 ALJR 139

Duke's case39 is linked to the fairness discretion40 and the exclusion of a confessional statement made by a suspect where it would be too unfair to the accused to admit it. In his judgment Deane J was concerned that fairness to the detained person was the key factor and therefore an independent record of the questioning should be kept.

In considering section 9041 Stephen Odgers42 observes that “the High Court has held that it would be good reason for exercise of this rule if a trial judge considers that police conduct may have brought about an unreliable admission”.

In R v Coombe the Court said that43 “Upon the issue of unfairness, the appellant must establish that [the confession's] reception into evidence resulted in the trial being unfair to him McDermott v R (1948); R v Lee (1950); McPherson v R (1981); Cleland v R (1982); Foster v R (1993) in that the conduct of police either affected the reliability of the evidence or led to a confession which would not otherwise have been made Duke v R (1989) and Foster v R (1993)”.

McKinney v R (1991) 171 CLR 468; 98 ALR 236

The High Court formally acknowledged that police verballing by way of fabricated confessional statements necessitated specific judicial action.44 Brennen, Dawson and Toohey JJ dissenting, argued that in the interests of ensuring a fair trial to the accused the jury should be warned about the weakness of disputed confessional evidence. The warning contained in McKinney's case45 is not based on the assumption that police evidence in cases of disputed confessional statements is unreliable per se. It is based on the lack of corroboration for the accused who seeks to substantiate a claim that the confession was not made at all.

The High Court established a general rule of application where a warning must be given where the disputed confession of the accused, (made to a police officer whilst the accused is in police custody), is not reliably corroborated and where the confession is the only, or substantially the only,46 basis for finding that the guilt of the accused has been established beyond reasonable doubt.

The High Court held the view that video and/or audio-taping confessions was sufficient to corroborate the making of the statement. The limitations on the application of the general rule seems to be that the confession must be the only, or substantially the only, basis for finding the guilt of the accused.

Statutory provisions excluding uncorroborated confessional statements from evidence

Legislators in various jurisdictions have enacted statutory provisions47 to provide a level of protection for suspects with regard to the admissibility of confessions or admissions in certain circumstances. Recording confessions either by audio or video-taping or a combination of both is the focus of those statutes.

Statutory provisions prohibiting comment on the accused's silence pre-trial

In Australia section 8948 prohibits comment on the silence of the witness pre-trial. In Petty and Maiden's case49 the High Court strongly reasserted the right of the accused to say nothing in the face of police interrogation and the general prohibition on the judge and the prosecutor saying anything in relation to the exercise of the Right.

In Weissensteiner's case50 the High Court ruled that a court could more safely draw an adverse inference where the accused failed to comment on evidence put before the court by the prosecution on matters that were peculiarly in their knowledge.

The introduction of legislation in Britain,51 including the amendment to the criminal caution, is said to put immense pressure on the suspect to speak to police. The amendment, of itself, does not affect the individual's right to silence but the court may draw an adverse inference from that silence, not an inference that silence is an admission of guilt, only an inference as to the credibility of the witness.

At trial silence in Australia

Pursuant to section 2052 the judge may comment to the jury about the failure of the accused to testify at trial. Comment is restricted by the propositions set out in Weissensteiner's case53 and in R v OGD.54

Under a Weissensteiner construction, comment by the judge in criminal proceedings may vary according to the jurisdiction. In the Commmonwealth and NSW jurisdictions the direction cannot contain comment regarding the accused's failure to testify as in some way suggesting that his or her failure to testify is because “the defendant was, or believe that he or she was, guilty of the offence concerned.”55

The Right to Silence in Australia and Britain

Until recently, the jury was not permitted to draw any inference of guilt from the suspect's silence when questioned by police, it was permitted to draw inferences adverse to the defendant's credibility. This distinction has been harshly criticised, notably by Professor Cross who labeled it “gibberish”.56

The Right to Silence at trial in Australia

In Australia comment by the judge is restricted to circumstances where the accused is silent at trial. Elizabeth Stone recently wrote of the decisions in Petty and Maiden v R57 and Weissensteiner v R58 that the “Two major decisions of the High Court on the Right to Silence have raised questions as to the extent to which Australian courts will protect that right. On balance, it appears that Australia is following England (perhaps with some reluctance) in placing some limits on the Right to Silence.”59

Petty and Maiden v The Queen (1991) 173 CLR 95

The High Court rejected the distinction between inferring consciousness of guilt from silence and denying credibility to a late defence by reason of earlier silence. “A person who believes on reasonable grounds that he or she is suspected of having been 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 they played . . . An incident of that Right to Silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the Right to Silence or render it valueless.” 60

The defendant produced an explanation for the first time at trial that was accepted by the court (the ‘late defence'). The prosecution argued that it should not be believed because it had not been offered earlier and the jury should be free to infer that the explanation was false.

The majority61 said that it would be unrealistic to expect juries to recognise and apply the distinction correctly and that it was in itself an erosion of the Right. Brennan and Gaudron JJ, in separate judgments stated that the distinction was illusory and the majority, with Brennan J, accepted that to permit adverse inferences would be to erode the Right or render it valueless.

The result in Petty and Maiden's case was that no adverse inference could be drawn from the exercise of the Right pre-trial. The decision supports policy considerations for rejecting inferences from the accused's silence during police interrogation raised by Deane J in Carr v R62 and Duke v R.63 In those cases consideration was given to the appropriateness of directions to the jury to avoid a miscarriage of justice where police evidence consists of an unsigned confession allegedly provided while the suspect was in police custody.

Weissensteiner v The Queen (1993) 178 CLR 217; 117 ALR 545

Two years after deciding Petty and Maiden v R,64 the High Court revisited the issues of the Right albeit on different facts. Andrew Palmer65 observed that it is “a little surprising” that the High Court revived the distinction between inferences of guilt and inferences adverse to credibility. Weissensteiner's case66 is distinguished from Petty and Maiden67 in that it involved at-trial silence. Arguably, it could also be distinguished on the basis that in Queensland a trial judge is not precluded from making comment on the failure of the accused to give evidence, as judges are in other jurisdictions.68

The High Court indicated that the accused's failure to testify “could, in certain circumstances and for certain purposes, be relied on by the tribunal of fact in determining whether or not guilt had been proved beyond reasonable doubt.”69 This clearly creates a conflict for those jurisdictions where the law forbids the judge from making comment to the jury on the silence of the accused.

Weissensteiner led no evidence and did not testify at trial. The trial judge instructed the jury that they might more safely draw an inference of guilt from the evidence on the basis that he had not given evidence of facts he appeared to have personal knowledge of.

On appeal the High Court said that “the silence of the accused may bear upon the probative value of the evidence led by the Crown, particularly in cases in which the accused has not supported any hypothesis which is consistent with innocence from facts which are perceived to be within his or her knowledge.”70 If an inference of guilt is otherwise available on the evidence, that inference could more safely be drawn where the accused failed to provide an innocent explanation.

The Right to Silence in Britain

In 1972 the Criminal Law Revision Committee reviewed the Right and in 1989 the Home Office Working Group on the Right to Silence issued a report that contributed to the introduction of the Criminal Justice and Public Order Act 1994.

In recommending that an adverse inference should be permissible from the accused's silence pre-trial the Committee said: “In our opinion it is wrong that it should not be permissible for the jury or magistrates' court to draw whatever inferences are reasonable from the failure of the accused, when interrogated, to mention a defence which he puts forward at his trial. To forbid it seems to us to be contrary to common sense and, without helping the innocent, to give an unnecessary advantage to the guilty. Hardened criminals often take advantage of the present rule to refuse to answer any questions at all, and this may greatly hamper the police and even bring their investigations to a halt.”71

The Commission acknowledged that:

  1. There may be reasons, consistent with innocence, for the accused to elect to remain silent, however those reasons should not render silence irrelevant. The Committee argued that the tribunal of fact would need to take the existence of such reasons into account in deciding whether or not an adverse inference should be drawn. “The exercise of the Right of Silence (specifically, failure to mention a defence which is relied on at trial) is relevant and relevant evidence ought to be admissible.” 72
  2. Abuse of the Right was commonplace among ‘hardened criminals', “there is now a large and increasing class of sophisticated professional criminals who are not only highly skilful in organising their crimes and in the steps they take to avoid detection but are well aware of their legal rights and use every possible means to avoid conviction if caught. These include refusal to answer questions by the police and the elaborate manufacture of false evidence”.73
  3. Police investigations may be hampered by the use of the Right by suspects.74
  4. The Right no longer serves a useful purpose because conditions have changed significantly in the conduct of criminal investigations. The Committee said that “criminal investigations and prosecutions are now conducted in a manner which offers far greater protections to the accused so that previous forms of protection — such as the Right to Silence — are no longer necessary”.75
The Right to Silence pre-trial and at-trial in Britain

The Committee76 recommended that “where a prima facie case is made out against the accused he or she should be required to give evidence in all ordinary cases.”77 The trial judge and the prosecution should be permitted to comment on the accused's failure to testify. The Committee was in no doubt that the recommendation was intended to be a strong inducement to the accused to testify.

The effect of the Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994 (the Act) does not abolish the Right, rather it empowers a judge to direct the jury on the proper use of the accused's pre-trial and at-trial silence. There are limitations to its application so that the power balance has not shifted and the accused may still exercise their right.

Statutory safeguards and limitations

Under the old criminal caution a suspect could refuse to answer questions without penalty and the judge was prohibited from commenting to the jury about any adverse inference available from the accused's failure to answer questions at the police station.78

Rosemary Pattenden79 explained that the “Application of any of the Right to Silence provision requires the court to determine questions of fact relating to the fulfilment of the statutory pre-condition and questions of discretion: what inferences may be drawn and is it, in the circumstances, appropriate to draw them? These discretions are likely to be a continuing source of difficulty for the courts long after the initial issues of statutory are resolved”.The inferences that can be drawn from the accused's silence are limited to ‘inferences . . . as appear proper.'80 The thrust of these limitations will turn on the Court's interpretation of the word ‘proper' and in Britain the Court of Appeal Criminal Division will have that responsibility because “the failure of most magistrates” courts to give reasons limits the opportunity for an appeal from these courts to the Divisional Court on the manner of the discretion's exercise.'81

Permitted inferences required by the British amendments

The British amendments removed the unfair advantage the accused may have had over the State while providing meaningful safeguards. The guilt of the accused cannot be inferred simply from silence.

In Murray v DPP 82 the “decision was emphatic that guilt cannot be inferred from the accused's absence from the witness box per se. A prima facie case must be erected from other evidence.”83

The Crown must make out a “clear prima facie case”,84 or in the words of Kelly L.J.85 “a strong prima facie case”, before an inference is considered ‘proper'. Failure by the accused to contradict a ‘clear' or a ‘strong' prosecution case gives rise to the probability that an adverse inference can be drawn.86

“[W]here the prosecution has established a prima facie case . . . it is not in every situation that an adverse inference can be drawn from silence, the more so because in all but the simplest case the permissible inferences may have to be considered separately in relation to each individual issue. Everything depends on the nature of the issue, the weight of the evidence adduced by the prosecution upon it . . . and the extent to which the defendant should in the nature of things be able to give his own account of the particular matter in question.”87

Relevant considerations required by the British amendments

The Report of the Working Group on the Right to Silence88 described the considerations relevant in deciding whether to infer anything from the accused's silence pre-trial.89 Those considerations are whether:

  • The accused's previous failure to mention a fact is capable of an innocent explanation and whether he has offered one.
  • The accused knew the fact in question at the relevant time and whether it was reasonable to have expected him to disclose it in the light of all the circumstances prevailing at the time, including the extent of his knowledge of the case against him.
  • The police complied with the Code of Practice for the Detention, Treatment and Questioning of Persons.
  • There was proper cautioning, tape recording, access to legal advice and special treatment of the handicapped and juvenile.90
The prosecution's onus

The onus of proof remains with the prosecution and the right to a fair trial appears to be unaffected by the British amendments. Where the prosecution is unable to present sufficient admissible evidence they will have failed to discharge the obligation and the case will fail.

“Opponents of the Right to Silence generally do not suggest that a suspect or defendant should be compelled to speak, either by answering police questions or testifying in court. Rather, their criticism is aimed at the prohibition upon drawing from that silence inferences adverse to the defendant. There has been much confusion however, as to when adverse inferences are permitted, and for what purpose such inferences may be used.”91

Adrian Zuckerman92 asserts that the inevitable demise of the Right to Silence will “. . . merely remove a largely illusory protection because, the Right to Silence has been of little value to suspects in the police station . . . by allowing inferences only from silence that follows the provision of adequate information to the suspect, the courts could ensure that the process of interchange in the police station, the give and take, is gradual and mutual”.

The fair trial

The Honourable Sir Anthony Mason, AC, KBE recently said93 “The notion of what is fair is not written in stone for all time”. The ideal of continually refining our concept of what is fair, to which our courts attempt to conform, has been described by Brennen J as “the onward march to the unattainable end of perfect justice”.94

Achieving a fair trialIn a recent article,95 Greg Walsh said “It is a fundamental precept of our criminal justice system that a person accused of a crime be convicted only after a fair trial according to the law”.

The question is whether there can be a fair trial without the truth. If evidence is relevant and if it has been properly obtained what justification exists for denying it to the tribunal of fact?

The jury will always draw inferences from the silence of the accused, whether directed by the judge or not. Little is achieved by prohibiting the judge instructing the jury on what use they may make of the accused's silence.

Elements contributing to the accused receiving a fair trial

Abolition of the Right in Britain, Ireland and Singapore seems not to have adversely affected the right of the accused to a fair trial. The statute and the judicial system require other mechanisms to be observed which protect the accused.

The presumption of innocence

The presumption of innocence is the cornerstone of the adversarial system of justice and amendments implemented by the Criminal Justice and Public Order Act 1994 do not alter this.

D J Harvey96 argues that it would be unsound to use evidence of silence based on the standard of proof because “If a fact finder is entitled to attach evidential significance to the fact that the accused remained silent, the advantage to the prosecution is that it may obtain a conviction as a result of inaction by an accused extrinsic to the evidence that has been advanced to establish guilt, and thus may establish guilt on a standard less than beyond a reasonable doubt”.

Silence is not extrinsic, it may have evidential significance and as such it becomes evidence. Elizabeth Stone97 submits that “if silence is of ‘evidential significance' then it is evidence. In that case, silence is not ‘extrinsic to the evidence that has been advanced to establish guilt'. Rather it is part of the evidence advanced to establish that guilt. It is no different from any other evidence which goes towards establishing guilt; and it is thus no wonder that evidence of silence may ‘take it over the threshold'.”98

Probative value of silence

The courts will invoke a number of doctrines if the Right threatens to exclude potentially probative evidence. Many people would consider silence to be an indicator of guilt and silence may be conclusive of guilt in circumstances where a proper explanation is not given at an early stage.

The majority in Weissensteiner's case99 found that in certain circumstances silence has probative value. The court was not prepared to allow silence to operate to exclude probative evidence.

In Murray v Director of Public Prosecutions100 Lord Mustill said: “ . . . the fact finder is entitled as a matter of common sense to draw his own conclusions if a defendant who is faced with evidence which does call for an answer fails to come forward and provide it. . . . [But it] is impossible to generalise, for dependant upon circumstances the failure of the defendant to give evidence may found no inference at all, or one which is, for all practical purposes, fatal”.

The caution

When a police officer in any jurisdiction in Australia decides to arrest a person, they must advise the person that they are under arrest and must caution the person that they do not have to say anything.

The caution adopted in Britain101 employs different language since the statutory amendment of the Right.102 The amendment was necessary to enable the judge to instruct the jury that it may draw an adverse inference in situations where the accused exercises the Right, either pre-trial or at trial.

The judges rules

Until 1912 the Right was accepted, but confusion about its application and effect was evident in the conflicting judicial decisions concerning its vesting in the accused and the right of the police to question a suspect.

The Home Secretary (UK) requested the King's Bench to consider the issue of police questioning and a code of practice was developed to guide police. The original rules were reviewed in 1930 and in 1964 new rules and new administrative directions replaced the existing rules.

The Judges Rules are persuasive administrative directions and statements obtained contrary to the spirit of the rules may be excluded from evidence.103

Judges discretion to exclude evidence where to adopt it would be unfair to the accused

Involuntary confessions are excluded, regardless of whether the judge believes they are accurate or not and regardless of the reason it was obtained.

Voluntary confessions are subject to the discretion of the judge and although voluntariness is a legal requirement, and fairness is a discretionary consideration, they are both designed to ensure the propriety of police actions. The fairness discretion includes consideration of the will of the suspect being overborne.

In R v Lee104 the fairness discretion was couched in terms of whether, considering the conduct of the police and all the other circumstances of the case, “it would be unfair to use his own statement against the accused”.105 The question revolves around the issue of whether it is fair to use the evidence against the accused, not whether it was fairly obtained.106

A confessional statement may be excluded from evidence on the basis that it was obtained unfairly107 or where a Bunning v Cross108 discretion exists in circumstances where the confession was obtained by police acting with impropriety109 or illegally. The confession may also be excluded if the prejudicial effect outweighs its probative value.110

General unfairness discretion to exclude evidence

The court may reject evidence of an admission it perceives would be unfair to use against the person who made it. In some circumstances the court will admit confessions, even where the accused has indicated a desire not to answer questions.111 In R v Ireland112 Barwick CJ, argued that where police continue to question after the accused has indicated a desire not to answer that action “will afford a ground for considering the exercise of a judicial discretion to exclude such evidence”.113

The Anunga Rules

In the context of the fairness discretion,114 Justice Brennan in Collins v R115 considered the discretion to exclude evidence gathered by police in a way that may have been unfair to the accused. The police persuaded a number of Aboriginal youths to re-enact a murder it was alleged they had committed. Photographs of the re-enactment were submitted as confessions. Brennan J referred to the Anunga Rules,116 as the embodiment of standards of fairness applicable to police questioning of Aboriginal or Torres Strait Islander people.

Relevant evidence

Section 55117 admits relevant evidence and proposes that evidence is not taken to be irrelevant only because it relates to the credibility of the witness. The Right hampers the search for the truth where the court is denied access to what may otherwise be relevant evidence.

Control mechanisms that impact on police investigations to ensure the rights of the accused are preserved

Amendments to the Right are not made to shift the balance, rather they are to ensure that remaining silent is taken into account along with all other aspects of the case, either supportive or prejudicial. Amendments are about recognising the probative value of the accused's silence where an answer would rebut the prosecution's evidence.

Integrity testing police procedures

Internal Investigation units within police services, the Ombudsman and anti-corruption bodies have a role investigating complaints from persons who believe they have been harshly or improperly treated by the police at any phase during a criminal investigation.

An integrity investigation into police practices, where a complaint of improper conduct by the police is substantiated, will result in either disciplinary action against the officers concerned or, in some cases, criminal charges against them. In any event, the evidence obtained in circumstances of improper police practices will be tainted. Disciplinary action taken against the officers concerned may lead to dismissal from the police service.

Criminal charges such as ‘perverting the course of justice' may follow allegations of improper conduct against offending police officers and will incur a penalty of imprisonment or fine. They will invariably lead to the dismissal of the officer or officers concerned from the police service.

These measures enhance the transparency of police practices and bring incidents of malpractice into the public domain for scrutiny.

External pressures ensuring police maintain high ethical standards

Royal Commissions and other reviews into policing in Australia provide the impetus for law enforcement organisations, and others, to constantly review processes, to ensure that recommendations of the Royal Commissioners and Government are satisfied. This will often include reviewing procedures, including the treatment of suspect(s) during official questioning by police.

There is an argument that what happens in the police station is not open to public scrutiny and therefore, there should be no requirement that the suspect answers questions. Police are subject to procedural guidelines issued by the Commissioner of each police service dealing with the manner in which police interact with suspects.

Video and audio-taping interviews conducted by police

Trial decisions have a significant impact on police practices and following the decision in McKinney's case,118 police in New Zealand and Australia embarked on a program of video-taping and audio-taping all confessions. Today all police interviews, wherever possible, are video and audio-taped, so as to provide the court with the best evidence of the interview.

Coercive powers of investigating agencies and the impact on the accused's Right to Silence in Australia

The pre-trial Right in Australia has been limited in a number of ways. These limitations do not adversely affect the right of the accused to a fair trial although they do apply pressure to the accused to answer questions.

The National Crime Authority, Independent Commission Against Corruption (NSW), the Australian Taxation Office and the Australian Securities and Investments Commission all have coercive powers. Various disciplinary authorities, permanent and ad hoc commissions set up to investigate malpractice and police services are afforded greater powers. A suspect is obliged to answer questions and failure to do so will attract a penalty. Where a suspect or witness does provide incriminating evidence, it cannot be used in criminal proceedings against them.

The National Crime Authority Act 1994119 does not allow the accused to refuse or fail to produce documents and other things which might tend to incriminate corporations and business records (past and present) which in turn, might tend to incriminate persons. A witness at a hearing cannot, without reasonable excuse: fail to attend; refuse to take an oath or make an affirmation; refuse or fail to answer a question; or refuse or fail to produce a document or thing. The right to refuse to answer questions survives because the potential for self-incrimination is a reasonable excuse.

Coercive powers were introduced to combat particular elements of criminality, for example, corruption and organised crime. Amendments were introduced to the Right in Britain and Ireland to combat terrorism and organised crime. Authorities in Singapore began applying legislation recently with respect to the Right in response to the vigour of the government in acknowledging that the law had been skewed unreasonably in favour of the accused.

Time for a change

In a recent article120 Ian Dennis explored the tension developing between the position now taken in the UK with respect to the Privilege and that taken by the European Convention on Human Rights. The tension arises because in England the Right has been abolished, thereby restricting the Privilege even further, whereas the European Court of Human Rights has argued that the Privilege is an essential element of the right to a fair trial.121 Dennis argues that the “privilege should be regarded as no more than an instrumental protection for certain interests of defendants in the criminal process”.122

Mr Justice Marks123 wrote of the British Parliament's attitude in developing the concept of the Privilege today. He said that the Privilege is abrogated in many situations, but not all. “The debate continues in relation to violent and other conventional crime and drug trafficking, as though in these areas the right of the individual only is under threat. As a result the law is not even-handed; the privilege exists in many areas and is excluded in many others”.

Uneven development has resulted in a hierarchy of offences and crimes giving the accused far greater protection with respect of some offences than others, and as compared to the community as a whole. He said: “The truth is, I think, that a transcending constitutional right to withhold information confuses the task of justice”.124

Marks J asserted that antisocial or criminal behaviour was a threat to government and that legislation would not cure the defect if it required some to give evidence but not others. Certainly, “. . . The fact remains that those who know most about illegal activities are those involved in them”.125

Civil liberties and the argument to retain the Right to Silence

In arguing for the retention of the Right to Silence Mr Robert Richter, QC (Victorian Council for Civil Liberties)126 said “Sir Thomas More's admonition in Bolt's A Man For All Seasons, that in silence lies safety, was not the cry of some criminal about to be unmasked. Rather it was the protestation, in the face of overwhelming State authority, that he was entitled to take refuge in what he understood an Britishman's birthright to be: to say nothing that might get him into trouble”.

The Evidence Act 1995 (C'th) and (NSW)

The introduction of the uniform evidence legislation in NSW and the Commonwealth jurisdictions presented an opportunity for Australia to weigh up the position taken in Britain, Ireland and Singapore with respect to the Right. Amendments consistent with those adopted in other countries could limit the unintended use of the Right by organised crime figures.

Pre-trial silence however remains particularly problematic due to the lack of legislation and the observance of the public policy considerations advanced by Deane J127 concerning the vulnerable suspect.

NSW Law Reform Commission Discussion Paper 41: The Right to Silence

On August 1, 1997, the NSW Attorney requested the Law Reform Commission to consider the law relating to the Right. The discussion paper was released in May 1998.128

The Commission recommended the retention of the Right on public policy grounds and fairness to the accused. The research explored the amendments to legislation in Britain, but ultimately decided that there are too many reasons, consistent with innocence, that the accused may seek to rely on the Right.

The arguments in support of the LRC position include that:

  • Permitting judicial comment may be a subtle compulsion for the suspect to speak.
  • The suspect may distrust police.
  • The suspect may be reluctant to repeat an explanation previously given that was not accepted.
  • The suspect wishes to protect others such as family or friends.
  • That the suspect may fear being branded a police informant.
  • The suspect may seek to remain silent to conceal sexual or political activities that may tend to embarrass them.

Other arguments suggest that the suspect may feel unable to sort out the facts, for fear of making a mistake. This argument ignores the fact that the suspect may have indeed committed the offence and merely seeks time to fabricate a story so as to evade arrest and prosecution.

Discussion Paper 41 is critical of police and fails to acknowledge that modern investigative practices, police guidelines, legislation and regulations, and integrity testing of police have corrected many prior bad practices. It also fails to consider the impact of organised crime on Australian society and the fact that it is often organised criminals who rely on the Right to Silence during police interrogation or at trial.

Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence

On November 11, 1997 the Attorney-General of Victoria, Jan Wade, requested The Scrutiny of Acts and Regulations Committee of the Parliament of Victoria to inquire into the use of the Right.

The review recommended the retention of ‘The Right to Silence' in Australia, on the basis that to remove a fundamental right of the accused may adversely affect the right to fair trial. Many public policy considerations were canvassed and notwithstanding all of the other protections available, the review was not convinced that the rights of the accused were sufficiently protected. This was so even though the statistics cited in research demonstrated that those typically relying on the Right are not the ones most in need of its protection.

The need for safeguards

There is no doubt that there are people in the community who need the protection of the legal system. It is often stated that the ones who will suffer from amendments to the Right are those who are at the greatest disadvantage. Opponents to reform argue that the legal system has no mechanism for protecting the rights and interests of those less fortunate and that the only way to safeguard them is to retain the Right.

The legal system provides ample safeguards for those in our society who are at a disadvantage. There are abundant protections without resorting to the Right and the judge in criminal proceedings will, where they believe the confessional statement is unfair to the accused, exercise the overriding discretion and exclude it from evidence.

The Evidence Act 1995 (C'th) and (NSW) provides protection for people in these categories by way of the competence provisions and the general discretion available to a judge to exclude evidence.

Statistical analysis of the use of the Right to Silence

Statistics often quoted129 show that only about 7-9 per cent of people charged with crimes exercise the Right to Silence. Tony Parsons130 proposes that “The attack on the fundamental right represents a serious erosion of a foundation principle of our criminal justice system with potentially very costly consequences”.

Mr Parsons asserts that there are very few people who claim or exercise the Right to Silence. He suggests that any modification of the Right would not significantly affect conviction rates131 and therefore there is no pressing need to amend the Right in Australia. His assessment and consideration of the benefits or disadvantages of amending the Right fail to establish the nature of the crimes committed or the type of criminals that go to make up the “few per cent” who rely on it. The statistics he uses are inconclusive but it is possible to infer that the less well-educated or more vulnerable people in the community are not the ones who rely on the Right.

The crimes referred to may be minor and would attract only minimal penalty, and they may have only modest repercussions within the community. However it is more likely that the crimes committed by the small percentage of people who rely on the Right are crimes associated with systematic, organised criminal activity.

Conclusion

This paper raises issues about the Right to Silence and its application in the modern day common law judicial system, and questions whether the Right is needed or relevant when considered alongside the multitude of other protections in place for the suspect in criminal proceedings.

The British amendments require that a strong or clear prima facie case be made out against the accused so that without doubt substantially more evidence is required than simply a confessional statement. The amendments also ensure, by the limitations they contain, that the interests of the accused are protected and are balanced against the needs of the community. This is also the case where amendments have been made to the Right in other common law countries.

The Right affords an advantage to the accused that is difficult to justify today. It developed out of the Privilege in a time when the State exercised all the power and applied it without consideration of the rights of the accused.

Organised crime is a problem in Australia, outlaw motor cycle gangs, Asian Triads, drug importation, people smuggling, murder, extortion and money laundering are all everyday facts of life today. Stronger resolve is required to provide community safety and there has been uncompromising support in other countries where the Right has been amended in support of the majority of the community rather than the few who seek to rely on the Right.

The Right should remain part of the criminal justice system but those who choose to exercise it should be aware that the Court will consider their silence and weigh it as part of the evidence in all of the circumstances.

References

  1. New South Wales Law Reform Commission, Discussion Paper 41, The Right to Silence, May 1998, p. 30
  2. Andrew Ligertwood, Australian Evidence, Butterworths 1998 at 305
  3. Paul Schramm, The Right to Silence: Maintaining the Balance, Police Journal 79 (1) 1998 at 8-9
  4. When Silence is Golden, Police Review, 1991: Paul Schramm, The Right to Silence: maintaining the balance, Police Journal 79 (1) January 1998, pp 8-9
  5. Carr v The Queen (1988) 165 CLR 31; Duke v The Queen (1989) 180 CLR 508
  6. (1991) 171 CLR 468
  7. s 29 Evidence Act 1959 (Vic)
  8. Criminal Justice and Public Order Act 1994 (UK)
  9. Id per s. 34(20, s. 35(3), s. 36(2) and s. 37(2)
  10. (1991) 173 CLR 95
  11. Weissensteiner v The Queen (1993) 178 CLR 217; (1993) 68 A Crim R 251
  12. Ibid
  13. Evidence Act 1995 (C'th) and (NSW), Comment on failure to give evidence
  14. Ed Ratushney Self-incrimination in the Canadian Criminal Process, The Carswell Company Limited, Toronto, Canada, 1979 pp 159-161; Dooms of Aethelred (980-1016) By the Lord before whom this holy thing is holy, I thus bring my charge with full folkright, without deceit and without malice, and without any guile whatsoever, that stolen from me was this property, N., which I claim and which I seized in the possession of N.; Stephenson and F Marcham, Sources of British Constitutional History, (1937) p 25
  15. Stephen J, 1 A History of the Criminal Law in England, (1883) pp 23-4: Ed Ratushny, Self-incrimination in the Canadian Criminal Process, The Carswell Company Limited, Toronto, Canada, 1979 pp 160
  16. Assize of Clarendon
  17. 35 Select Cases Before the King's Council (1243-1482) (I.S.Leadam and J.F. Baldwin, ed. 1918; Ed Ratushney, Self-incrimination in the Canadian Criminal Process, The Carswell Company Limited, Toronto, Canada, 1979 p 166
  18. 25 Edw. 3, c. 4
  19. 42 Edw. 3, c. 3
  20. (1637) 3 How State Tr 1316 at p 1318
  21. The Trial of John Lilburne [e] and John Wharton for the Printing and Publishing of Siditious Books (1637) 3 How State Tr 1316
  22. Howard M N, May, Richard & Buzzard, John Huxley, Phipson on Evidence, Twelfth Edition, The Common Law Library Number 10, Sweet and Maxwell, London, 1976, pp 256-257
  23. Triplex Saftey Glass Co. v Lancegaye Safety Glass [1939] 2 KB 395
  24. Spokes v Grosvenor Hotel [1897] 2 QB 124: Civil Evidence Act 1968, s. 14(1)
  25. R v White (1899) 20 LR (L) (NSW) 12 at 22-23 per O'Connor J
  26. Crimes Act 1900 (NSW), s 407; Evidence Act 1898 (NSW) ss 5-6; Oaths Act 1900 (NSW) s 13; Evidence Act 1958 (Vic) ss 22, 24, 26, 102; Crimes Act 1958 (Vic) ss 399-400; Evidence Act 1977 (Qld) ss 6-8; Oaths Act 1867 (Qld) ss 17-19; Oaths Act Amendment Act 1884 (Qld) s 2; Evidence Act 1929 (SA) ss 6-7, 9, 12, 15-16, 18, 21; Evidence Act 1906 (WA) ss 6-10, 97, 99, 100A; Justice Act 1902 (WA) s 70; Evidence Act 1910 (Tas) ss 82-86, 126; Evidence Act 1971 (ACT) ss 53-54, 66; Oaths and Affirmations Act 1984 (ACT) s 15
  27. Wigmore on Evidence, McNaughton Revision, Vol. 8 1961 at 2250ff
  28. Nemo debet prodere se ipsum
  29. Evidence Act 1995 (C'th) and (NSW)
  30. The Trial of John Lilburne [e] and John Wharton for the Printing and Publishing of Siditious Books (1637) 3 How State Tr 1316
  31. Carr v The Queen (1988) 165 CLR 31; Duke v The Queen (1989) 63 ALJR 139; (1994) 180 CLR 508
  32. Evidence Act 1995 (C'th) & (NSW) Section 128(2)
  33. Brebner v Perry [1961] SASR 177
  34. [1961] SASR 177
  35. J Bentham, Rationale of Judicial Evidence, in 7 The Works of Jeremy Bentham (Bowring ed. 1843) p 452; quoted extensively in 8 Wigmore on Evidence (McNaughton rev. 1961) 2251; quoted Edison Haines J in Future of the Law of Evidence – The Right to Remain Silent - Two Views, in Studies in Canadian Evidence (R Salhany & R Carter ed 1972) 322 at pp 322-3; Ed Ratushney Self-Incrimination in the Canadian Criminal Process, The Carswell Company Limited, Toronto, Canada, 1979 at p 5
  36. (1988) 165 CLR 314
  37. Longman v Ryan (1989) 168 CLR 79 at 86
  38. Carr v The Queen (1988) 165 CLR 31
  39. Duke v The Queen (1994) 180 CLR 508; (1989) 63 ALJR 139
  40. See discussion at Chapter 4, 4.1.5
  41. Evidence Act 1995 (Cth) and (NSW)
  42. Uniform Evidence Law, Second Edition, The Federation Press, 1997 at p 152
  43. April 1997, NSW CCA, unreported, per Hunt CJ at CL (McInerney J concurring)
  44. McKinney v R (1991) 171 CLR 468 at 473 per Mason CJ, Deane, Gaudron and McHugh JJ
  45. McKinney v R (1991) 171 CLR 468
  46. R v Small (1994) 33 NSWLR 575 at 599-604 (CCA)
  47. Evidence Act 1971 (ACT) s. 68; Police Powers and Responsibilities Act 1997 (Qld) s. 104; Criminal Law (Detention and Interrogation) Act 1995 (Tas) s. 8; Crimes Act 1958 (Vic) s. 464H; Crimes Act 1914 (C'th) s. 23V
  48. Evidence Act 1995 (C'th) and (NSW) Section 89 Evidence of Silence
  49. Petty and Maiden v The Queen (1991) 173 CLR 95
  50. Weissensteiner v The Queen (1993) 178 CLR 217
  51. Criminal Justice and Public Order Act 1994
  52. Evidence Act 1995 (C'th) and (NSW)
  53. Weissensteiner v The Queen (1993) 178 CLR 217
  54. June 1997 NSW CCA Unreported
  55. Section 20(2)
  56. R Cross The Evidence Report: Sense or Nonsense [1973] Criminal Law Review 329 at 333; Elizabeth Stone, Calling a Spade a Spade: the Embarrassing Truth about the Right to Silence, Criminal Law Journal, Volume 22, February 1998, pp 17-35 at 20
  57. Id
  58. (1993) 178 CLR 217; 117 ALR 545
  59. Elizabeth Stone, Calling a Spade a Spade: the Embarrassing Truth about the Right to Silence, Criminal Law Journal, Volume 22, February 1998, pp 17-35 at 17
  60. (1991) 173 CLR 95 at 99
  61. Per Mason CJ, Deane, Toohey and McHugh JJ at 99-103
  62. (1988) 165 CLR 314
  63. (1988) 63 ALJR 139
  64. (1991) 173 CLR 95
  65. Silence in Court – The Evidential Significance of an Accused Person's Failure to Testify University of New South Wales Law Journal, Vol 18 no 1, 1995 pp 130-150 at 130
  66. Weissensteiner v The Queen (1993) 178 CLR 218; 117 ALR 545
  67. (1991) 173 CLR 95
  68. Crimes Act 1900 (NSW) s. 407(2); Crimes Act 1958 (Vic) s. 399(3); Evidence Act 1939 (NT) s. 9(3)
  69. Scrutiny of Act and Regulations Committee, Inquiry into the Right to Silence, Government Printer for the State of Victoria No 40 Session 1998 at p 98.
  70. Sir Anthony Mason AC, KBE, Fair Trial, Criminal Law Journal Volume 19, February 1995 at 10
  71. Criminal Law Revision Committee, Eleventh Report (General) (Cmnd 4991, London: HMSO, 1972), [30]
  72. Ibid at [35]
  73. Ibid at [21]
  74. Ibid at [21]
  75. Ibid at [43]
  76. Criminal Law Revision Committee
  77. Scrutiny of Act and Regulations Committee, Inquiry into the Right to Silence, Government Printer for the State of Victoria, No 40 Session 1998, at p 72
  78. R v Christie [1914] 1 WLR; Hall v R [1971] 1 WLR 298
  79. Inferences from Silence, Criminal Law Review, August 1995 pp 602-611
  80. s.34(2); s. 35(3); s. 36(2); s. 37(2)
  81. Rosemary Pattenden, Inferences from Silence, Crim Law Review 1995, p 604; The prospects for an appeal to the Divisional Court from the Crown Court, sitting as an appellate court, are better. A judge sitting with justices must give reasons; R v Crown Court at Harrow, ex p. Dave [1994] 1 All ER 315 at p. 323
  82. Murray v DPP (1993) 97 Crim App R 151
  83. Rosemary Pattenden, Inferences from Silence, Crim Law Review 1995, p 605
  84. Ibid, per Lord Slynn at p 161
  85. R v Murphy NICA unreported, April 2 1993, cf Lord Taylor CJ Parliamentary Debates, HL Vol 555, May 23, 1994, col. 520
  86. R v Muckain unreported, December 2, 1994, per MacDermott LJ - “[W]e have come to the definite conclusion that we do not consider that those facts require an answer from the appellant with sufficient cogency for the court to draw an adverse inference from his failure to give one at trial.”
  87. Murray v DPP (1993) 97 Crim App R 151 at 155 per Lord Mustill
  88. (London, 1989) para. 65 and Appendix D; Rosemary Pattenden, Inferences from Silence, Crim Law Review 1995, p 608
  89. The reform brought about by The Criminal Justice and Public Order Act 1994 permits the court to draw inferences from the defendant's failure, when questioned or charged, to mention a fact later relied on in defence which the defendant could reasonably have been expected to mention when questioned.
  90. In Australia this will also include consideration of the special requirements with respect to questioning indigenous Australian and the need to comply with rule which require an interview friend or relative to be present when ever the suspect is with police.
  91. Elizabeth Stone Calling a Spade a Spade; the Embarrassing Truth about the Right to Silence Criminal Law Journal Vol. 22 February 1998 pp 17-35
  92. The Inevitable Demise of the Right to Silence, New Law Journal, August 5 1994, pp 1104-1105
  93. Criminal Law Journal Volume 19, February 1995 at 7
  94. Jago v District Court (NSW) (1989) 168 CLR 23 at 54
  95. The Right to Silence, Law Society Journal, April 1999 pp 40-45
  96. The Right to Silence and the Presumption of Innocence [1995] New Zealand Law Journal 181 at 184
  97. Calling a Spade a Spade: The Embarrassing Truth about the Right to Silence February 1998 Criminal Law Journal Volume 22 pp 17-35 at p 20
  98. Noble [1997] 1 SCR 874 reaffirmed the right to silence and the breadth of its protection under Canadian law, Sponika J at 929 said ‘If a case against an accused has been adduced that is capable of supporting an inference of guilt, it may be a wise strategy for the accused to testify in order to refute the case to meet; this does not involve a shift in the legal burden of proof to the accused, but rather involves a shift of strategic burden.' Despite this the majority of Australian judges and other commentators have rejected it on this basis. See, inter alia, Mason CJ and Toohey J in Environment Protection Authority V Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 503; JB Robertson, ‘Rights and Responsibilities in the Criminal Justice System' (1992) 7 Otago Law Review 501 at 507; G Williams, ‘The Tactic of Silence' (1987) 137 New Law Journal 1107 at 1108; CR Williams, ‘Silence in Australia: Probative Force and Rights in the Law of Evidence' (1994) 100 Ltrw Quarterly Review 629 at 643; and comments by Sir Harry Gibbs reported in ‘Sir Harry Gibbs Calls for Change in Law on Questioning of Suspects' (1987) 22(8) Australian Law News 11 at 12. See also the Court of Appeal's rejection of such an argument in Cowan [1995] 3 WLR 818 at 822, per Lord Taylor CJ.
  99. Weissensteiner v The Queen (1993) 178 CLR 217 at 229 per Mason CJ, Deane and Dawson JJ; at 235 per Brennen and Toohey; at 244-245 per Gaudron and McHugh.
  100. (1992) 97 Cr App R 151 at 155
  101. ‘You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.'
  102. Criminal Justice and Public Order Act 1994 (UK)
  103. R v Voisin [1918] 1 KB 531, 539 per Lawrence J; R v Roberts [1970] Crim LR 464 (CA).
  104. (1950) 82 CLR 133
  105. Ibid at 154
  106. See R v Swaffield; Pavic v R (1998) 151 ALR 117 per Toohey, Gaudron and Gummow JJ where this approach was endorsed
  107. R v Lee (1950) 82 CLR 133
  108. (1978) 141 CLR 54
  109. Duke v The Queen (1989) 63 ALJR 139; (1994) 180 CLR 508
  110. R v Christie [1914] AC 545
  111. Basto v The Queen (1954) 91 CLR 628; R v Lee (1950) 82 CLR 133 at 139,157
  112. (1970) 126 CLR 321
  113. Ibid at 333
  114. R v Lee (1950) 82 CLR 133
  115. (1980) 31 ALR 257 (FC)
  116. R v Anunga (1976) 14 SASR 463; R v Anderson (1991) 105 FLR 25
  117. Evidence Act 1995 (C'th) and (NSW)
  118. McKinney v The Queen (1991) 171 CLR 468
  119. Subsection 30(9)
  120. Rectitude Rights and Legitimacy: Reassessing and Reforming the Privilege Against Self-incrimination in British Law, Israel Law Review: Volume 31 Numbers 1-3, Winter-Summer 1997
  121. Article 6.1 of the European Convention
  122. Rectitude Rights and Legitimacy: Reassessing and Reforming the Privilege Against Self-incrimination in British Law, Israel Law Review: Volume 31 Numbers 1-3, Winter-Summer 1997
  123. Thinking up about the Right to Silence and Un-sworn Statements, delivered to the Supreme Court Conference, January 1994
  124. Ibid
  125. Id
  126. National Crime Authority & Victorian Council For Civil Liberties, National Conference, Liberty, Law Enforcement & Accountability, April 18, 1993 at 13-14
  127. Carr v R (1988) 165 CLR 314; Duke v R (1988) 63 ALR 323
  128. NSW Law Reform Commission, Discussion Paper 41: The Right to silence, May 1998
  129. Greg Walsh, The Right to Silence, Law Society Journal, April 1999 pp 40-44 at p 42; Tony Parsons, Right to Silence Under Review, Law Institute Journal, December 1998 at pp 46-48 at p 47
  130. Right to Silence Under Review, Law Institute Journal, December 1998 at 46-48
  131. Ibid, at 47