Scrutiny of Acts and Regulations Committee

Sixth Annual Report,
May 1999

Ordered to be printed
By Authority.  Government Printer for the State of Victoria.
No. 47 Session 1999

7.1 Reference – Review of the Right to Silence

On 13 November 1997, the Governor-in-Council referred to the Committee a Reference to Review the Right to Silence.

7.2 Terms of Reference

The terms of reference are set out:–

Under the powers found in Section 4F(1)(a)(ii) and Section 4F(3) of the Parliamentary Committees Act 1968 the Governor-in-Council refers the following matters to the Scrutiny of Acts and Regulations Committee—

The issue of right to silence encompasses two categories—the right of a suspect not to answer questions before trial (pre-trial silence) and the right of an accused not to give evidence at trial (at-trial silence).

In 1994 the United Kingdom introduced the Criminal Justice and Public Order Act which provides that the court may draw "whatever inferences appear proper" if the accused fails to mention facts later relied on in his defence when he or she is questioned by police or charged. The court may also draw "whatever inferences appear proper" where an accused refrains from testifying after the trial judge has informed the accused in court that he or she can give evidence and that if he or she does not testify the court can draw whatever inferences appear proper.

Across Australian jurisdictions there are various approaches to the issue of allowing comment where an accused person exercises his or her right to silence. In all jurisdictions there is an absolute right to silence at the police questioning stage of proceedings. In relation to at-trial silence, Commonwealth and New South Wales legislation allows the judge or any other party (other than the prosecutor) to comment on the failure of the defendant to give evidence.

South Australia, Western Australia, the Australian Capital Territory and Tasmania have legislation to the effect that the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution. The Northern Territory and Victoria have legislation which forbids comment on an accused's silence at trial by either the judge or prosecutor. Queensland's legislation is silent on the matter of commenting where an accused is silent at trial. Therefore comment can be made by a prosecutor as well as a judge or any other party.

There is a perception that people who are innocent will provide an explanation for their actions and that silence is used as a shield by criminals. This must be viewed in the context of ensuring that persons charged with offences receive a fair trial.

The Committee is requested to inquire into the issue of the right to silence, examining issues including the appropriateness of allowing comment, and the type of comment, that might be made where an accused remains silent. The Committee is asked to consider the desirability of introducing legislation equivalent or similar to the English scheme.

The Committee is requested to make its final report to Parliament by the first day of the 1998 Spring Parliamentary sittings.

7.3 The Right to Silence Subcommittee

Pursuant to section 4L of the Parliamentary Committees Act 1968, the Committee established the Right to Silence Subcommittee in December 1997, composed of the following members:–

• Mr Peter Ryan MLA, Chair;
• Ms Mary Gillett MLA;
• The Honourable Peter Katsambanis MLC;
• Mr Tony Plowman MLA; and
• Mr Murray Thompson MLA.

7.4 Discussion/Issues Paper

With the view of fostering public debate and community consultation focused on the issues raised by the terms of reference, the Committee appointed Mr Andrew Palmer, Senior Lecturer in the Law School at the University of Melbourne to develop a discussion paper. The paper was released for public distribution in July 1998 and was simultaneously made available on the Committee's Internet Home Page.

7.5 Call for written submissions

By public advertisement in "The Age" on 11 and 18 July 1998 the Committee called for written submissions related to the review of the Right to Silence Inquiry. The public notice was also carried in 4 (four) regional newspapers. The Committee also faxed over 100 prominent organisations involved in law and human rights issues advising of the inquiry and calling for submissions. The Committee is appreciative of the assistance given to publicise the inquiry and public hearings by the Victorian Bar Council and the Law Institute of Victoria.

Whilst a deadline for receipt of written submissions was set for 3 August 1998 the Committee received and considered submissions well into early September 1998. The list of individuals and organisations who made written submissions to the Committee appears as Appendix 4.

7.6 Public hearings

Individuals and organisations making written submissions to the Committee were invited to give oral evidence before the Committee at public hearings, held on 18 and 19 August 1998 at the Legislative Council Committee Room at Parliament House. The hearings were open to the public and notices advising the date and location of the hearings were carried in the `Age' on 12 and 15 August 1998. The list of individuals and organisations who gave oral evidence to the Committee appears as Appendix 5.

7.7 Overseas inquiry

The Attorney-General's terms of reference specifically asked the Committee "to consider the desirability of introducing legislation equivalent or similar to the English scheme."

The English scheme includes sections 34-38 of the Criminal Justice and Public Order Act 1994 (UK) (the Act) which came into force on 10 April 1995. The relevant provisions of the Act relate to the at-trial inferences that may arise from the exercise of the right to silence by an accused person. The four principal sections concern the:–

• effect of an accused's failure to mention facts when questioned or charged being facts which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned and which are later relied on at trial in his or her defence (section 34);
• effect of an accused's silence at trial (section 35);
• effect of accused's failure or refusal to account for objects, substances or marks (section 36); and
• effect of accused's failure or refusal to account for his or her presence at a particular place (section 37).

Similar legislation to sections 36 and 37 of the Act are also found in the Republic of Ireland in sections 18 and 19 of the Criminal Justice Act 1984.

To benchmark or road test the English and Irish legislation four members of the Committee travelled to the United Kingdom and the Republic of Ireland from 15 June to 24 June 1998. The Committee's appointments in the United Kingdom and the Republic of Ireland appears as Appendix 6.

7.8 The Committee's findings

The Chairman of the Committee tabled the final report on the first day of the Autumn Session of Parliament, 23 March 1999. The Committee's recommendations are listed below. Copies of the full text of the report are available on the Internet at http://www.parliament.vic.gov.au/sarc and on request from the Scrutiny of Acts and Regulations Committee. In the Final Report to Parliament the Committee made the following recommendations:–

Recommendation 1

The Committee recommends that no changes be made to the law relating to pre-trial silence. In the Committee's view, it should continue to be the law that no adverse inferences may be drawn from an accused person's failure to answer questions put to him or her by investigating officials such as the police. Legislation based on the provisions of the Criminal Justice and Public Order Act 1994 (UK) should not therefore be introduced in Victoria.

Recommendation 2

The Committee recommends that legislation be introduced which would allow the prosecution to re-open its case in order to meet a defence which was not disclosed until after the close of the prosecution case, and which the prosecution could not reasonably have anticipated.

Recommendation 3

The Committee is concerned about the apparent ineffectiveness of the pre-trial discovery and disclosure provisions currently operating in Victoria under the Crimes (Criminal Trials) Act 1993, and therefore supports the work being undertaken by the Department of Justice to make this legislation effective.

Recommendation 4

The Committee recommends that s. 399(3)* of the Crimes Act 1958 (Vic) be repealed, and replaced with a provision based on s. 20(2)* of the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW). This would allow the trial judge to comment on an accused person's failure to testify, and so direct the jury in accordance with the common law as it would otherwise apply in Victoria.

For reference purposes the relevant sections provide:–

Crimes Act 1958 (Vic), s.399(3)

399(3) The failure of any person charged with an offence to give sworn evidence shall not be made the subject of comment to the jury by either the prosecution, or by the presiding judge.

Evidence Act 1995 (Cth), s.20(2)

20(2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

Last Updated 18/8/99 ©Parliament of Victoria