Scrutiny of Acts and Regulations Committee

The Right to Silence, Final Report

Recommendations

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The Scrutiny of Acts and Regulations Committee makes 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The Committee recommends that s 399(3) of the Crimes Act 1958 (Vic) be repealed, and replaced with a provision based on s 20(2) of the Evidence Act 1995 (Cwth) and Evidence Act 1995 (NSW).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.