Scrutiny of Acts and Regulations Committee

The Right to Silence, Final Report

Chapter 2 - Pre-Trial Silence

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The Committee's view is that the law relating to the pre-trial right to silence in Victoria should not be changed. In explaining why the Committee has reached this view, the Report will attempt to address the issues raised in the Committee's Issues Paper.

2.1 THE EXERCISE OF THE RIGHT TO SILENCE IS NOT RELEVANT TO THE QUESTION OF GUILT

The argument that it should be permissible to use a suspect's silence as the foundation for an adverse inference is obviously premised on the belief that a suspect's exercise of their right to silence is relevant to the question of their guilt. The Committee's Terms of Reference thus refer to `a perception that people who are innocent will provide an explanation for their actions'. Although some submissions argued that silence was indeed relevant to guilt,[1] several other submissions pointed out that there are so many reasons for exercising the right to silence which are consistent with innocence that failure to answer police questions cannot provide a safe foundation for an inference of guilt.[2] Among the reasons submitted were the following:

• a desire to conceal embarrassing but non-criminal facts, or to conceal offences not under investigation;

• a desire to protect others;

• a negative or distrustful attitude towards the police, including the fear that the police may distort anything the suspect says or may be unwilling to accept the suspect's explanation;

• a belief that the allegations are so absurd or offensive that they should not be dignified with a response;

• the fact that the suspect may be shocked or confused by the allegations;

• the fact that the suspect may lack confidence in the use of the English language;

• the fact that the suspect may be tired, intoxicated, under the influence of drugs, suffering from a psychiatric illness or intellectual disability, or otherwise in an unfit state to do justice to themselves;

• the fact that the allegations may be vague or unclear;

• the view that the police may be unwilling to disclose to the suspect and/or his or her legal adviser enough of the evidence against the suspect for the suspect to be in a proper position to evaluate and/or answer the case against him or her;

• the fact that the events which have given rise to the allegations may be so factually complex or the issues upon which guilt will turn so fine, that the suspect may take the view that it would be unwise to answer any questions until they have had the opportunity to review their situation with the aid of a lawyer; and

• the fact that the suspect may have been advised by his or her solicitor to refuse to answer questions, such advice being justified by any of the reasons referred to above.

In the end, the Committee is satisfied that there are so many reasons why an innocent person might choose to exercise their pre-trial right to silence that the `perception' referred to in the Terms of Reference is not always accurate. Accordingly, the Committee believes that a suspect's refusal to answer police questions does not provide a safe foundation for an adverse inference.

2.2 THE RIGHT TO SILENCE STILL SERVES A USEFUL PURPOSE

Some submissions argued that the enactment in Victoria of a number of provisions designed to protect suspects from unfair methods of investigation and to ensure the reliability of evidence gathered by the police meant that the circumstances which gave rise to the need for the right to silence no longer existed.[3] Several other submissions, however, argued that the right to silence still has a useful purpose to serve in Victoria.[4] These submissions pointed out that the provisions currently applying in Victoria fall short of the `package' of measures now applying in the United Kingdom, a matter discussed below in the context of the discussion of the Criminal Justice and Public Order Act 1994 (UK). These submissions also argued that the right to silence helps to redress the power and resource imbalance which exists between the state as represented by the police and an individual suspect; that it protects the vulnerable; that it ensures that the burden of proof rests on the state; and that its removal would expose suspects to unfair investigative methods. Each of these suggestions is discussed in more detail under the headings below; for the moment, however, the Committee notes that it is satisfied that the right to silence has not been rendered redundant by improvements to the law governing police investigation.

2.3 THE RIGHT TO SILENCE DOES NOT CREATE ANY SIGNIFICANT PROBLEMS

The Committee accepts that those who advocate change to the right to silence bear the onus of establishing that the right creates significant problems for the criminal justice system. The Committee is not satisfied that that onus has been met. Indeed, those submissions which argued that it should be permissible to draw adverse inferences from a suspect's failure to answer police questions generally based their submissions on the claim that such a failure is relevant to guilt, and that relevant evidence ought, as a general proposition, to be submitted for the consideration of the jury. On the whole, these submissions did not, however, identify any significant problems to which the prohibition on drawing such adverse inferences gives rise; and where such problems were identified, there was a lack of compelling evidence to show that the problems really were, in a practical sense, of any real significance to the administration of justice in Victoria. On the other hand, many of the submissions went to considerable trouble to refute any claims that the potential problems identified by the Committee in its Issues Paper were indeed problems in Victoria.

2.3.1 The hampering of police investigations

Although common sense suggests that the exercise of the right to silence must hamper police investigation in some cases, no evidence was presented to the Committee to suggest that this is a significant problem. No doubt this is in part a reflection of the fact that very few suspects actually exercise the right to silence. Australian studies on the incidence of the exercise of the right to silence by suspects have arrived at figures ranging from 4% to 9%.[5] Although there is some evidence suggesting that the introduction of the provisions of the Criminal Justice and Public Order Act 1994 (UK) has reduced the number of suspects exercising their right to silence in England and Wales,[6] the fact that the vast majority of suspects in Victoria choose not to exercise their right to silence clearly limits the capacity of the right to hamper police investigations.

2.3.2 Abuse of the right by hardened criminals

The submissions were generally dismissive of the idea that the right to silence is `abused' by `hardened' criminals.[7] This dismissal was based variously on the idea that if the right to silence is indeed a right, then its exercise cannot amount to an abuse; rejection of the notion that there is such a category as `hardened' criminals; and the claim that suspects with a lengthy criminal record are no more likely to exercise their right to silence than those without such a record. This last claim is actually at odds with English studies which have confirmed that suspects with a criminal record are indeed more likely to exercise their right to silence than those without;[8];but even if suspects with a criminal record do exercise their right to silence at a higher rate than those without, this does not mean that it can safely be assumed that they do so because they are guilty of the offence under investigation. Indeed, as Leng has pointed out, persons with a criminal record are far more likely to be arrested and questioned on minimal or speculative evidence than are persons without such a record.[9] Finally, the Committee believes that if one accepts - as the Committee does - that suspects should have a right to silence, then this right must be available to suspects with a criminal record just as it is available to suspects without a criminal record, and the fact that the former may choose to exercise the right at a greater rate than the latter cannot provide a justification for removing the right.

2.3.3 Ambush defences

Submissions were generally dismissive of the idea that 'ambush' defences cause a problem, with the Victorian Director of Public Prosecutions, for example, conceding that 'the "ambush" defence may be more theoretical than real'.[10] This is consistent with the English research which suggests that 'ambush' defences are relied on in somewhere between 1.5% and 10% of contested cases.[11] The higher of these estimates are arguably over-inclusive, in that they may take an excessively broad interpretation of the concept of the 'ambush' defence.[12] The defining characteristic of an 'ambush' defence is not just that the defence is not disclosed until trial; it is that the defence could not reasonably have been anticipated by the prosecution, so that late disclosure has effectively prevented the prosecution from being able to investigate the defence. For this reason, the mere denial of an element of the offence - such as a defence of consent in a rape trial - cannot amount to a true 'ambush' defence because such a defence could reasonably have been anticipated by the prosecution.

Of course, the classic example of an 'ambush' defence is an alibi which is revealed for the first time after the close of the prosecution case in chief. This particular problem has been dealt with by s 399A of the Crimes Act 1958 (Vic), which requires that the defence give advance notice of an alibi. Another example was given in one of the submissions to the Committee, namely an innocent explanation for an apparently incriminating set of circumstances which was withheld until after the close of the prosecution case, and which the prosecution could not reasonably have anticipated.[13] Perhaps of greater significance than the low incidence of reliance on 'ambush' defences, however, is the fact that reliance on an 'ambush' defence does not appear to increase the chances of acquittal. Indeed, in one of the English studies, every defendant who relied on an 'ambush' defence was convicted. [14]

On the weight of the material before it, the Committee is therefore satisfied that the use of 'ambush' defences is a problem which occurs in only a small number of trials. Nevertheless, the Committee believes that in that small number of cases where the defence does rely on a defence or explanation which is not disclosed until after the close of the prosecution case, and which the prosecution could not reasonably have anticipated, the prosecution should be permitted to re-open its case in order to respond to the defence. The Committee is aware of the fact that at common law the trial judge does already have a discretion to permit the prosecution to re-open its case in special or exceptional circumstances;[15] and the Committee is also aware of the existence of s 15(4) of the Crimes (Criminal Trials) Act 1993, which gives the trial judge a discretion to permit the prosecution to reply to evidence adduced by the defence which, given the defence response served, 'could not reasonably have been foreseen' by the prosecution. However, the Committee is concerned that the common law discretion may be too demanding; and that s 15(4) of the Crimes (Criminal Trials) Act 1993 is not, in any practical sense, available as a remedy to this problem, given the fact - discussed below - that the Act is not currently being applied.

The Committee therefore recommends that legislation should be enacted allowing 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.

2.3.4 Effect on conviction rates

The Issues Paper posed the question whether the right to silence leads to an excessively high rate of unjustified acquittals? Again, the Committee has not been presented with any evidence which would support such a claim. Several submissions pointed out that conviction rates in Victoria leave little room for a claim that the rate of acquittal is excessive.[16] The Victorian Aboriginal Legal Service, for example, presented evidence suggesting that the conviction rate in contested cases in the Magistrates' Court - which deals with the vast bulk of criminal matters in Victoria - was 95%; when guilty pleas are taken into account, the conviction rate rises to 98%.[17] While it is generally accepted that the conviction rate in the superior courts is slightly lower, one study nevertheless found the overall conviction rate in Victorian superior courts to be 89%.[18]

In any case, it is yet to be established that a suspect's exercise of their right to silence has any effect on their chances of being charged and convicted. In his oral evidence to the Committee, the Victorian Director of Public Prosecutions conceded that changes to the right to silence would probably have no effect on the conviction rate.[19] This concession seems to be consistent with the research. One English study, for example, found that the exercise of the right to silence had no statistically significant effect on the outcome of an investigation.[20] The key determinant of whether or not the suspect was charged was the strength of the prosecution evidence; and if exercise of the right to silence had any effect on the decision to charge it appeared to make charging more likely. Of course, the vast majority of persons charged with a crime plead guilty; according to the study, however, defendants who had exercised their right to silence were actually more likely to plead guilty than those who had not. Finally, in contested cases, defendants who had remained silent were convicted at about the same rate as those who had not.

2.4 OTHER METHODS OF DEALING WITH THESE PROBLEMS

The Committee believes that many of the problems for which the right to silence is often blamed - such as the 'ambush' defence - could be better solved by the implementation of effective pre-trial disclosure and discovery provisions in criminal proceedings. To this end, the Committee supports the work currently being undertaken by the Department of Justice in reviewing the operation of the Crimes (Criminal Trials) Act 1993 (Vic). The Act has the aim of facilitating the efficient conduct of criminal trials by, among other things, ensuring that the points of genuine contention between the prosecution and the defence are identified before the trial. Among its provisions, the Act allows the judge to comment on any departure at-trial by the defence from the case disclosed prior to trial. In the Committee's view, enforcement of the Act would obviate any perceived need for adverse inferences to be drawn from pre-trial silence.

It seems, however, that the Act has failed to achieve its aims, hence the current review of its operation. The Committee strongly supports the idea that pre-trial discovery and disclosure procedures in criminal proceedings should be improved. The Committee also notes that there appeared to be an acceptance of the general philosophy behind the Crimes (Criminal Trials) Act 1993 (Vic) in a number of the submissions it received.[21]

2.5 CHANGING THE RIGHT TO SILENCE MAY HAVE UNDESIRABLE EFFECTS

The Committee is also satisfied that any curtailment of the right to silence would have a number of undesirable effects.

2.5.1 Lack of clarity in the law

The Committee believes that changes to the right to silence would create a lack of clarity in the law, and lead to laws which are difficult to apply. The reasons for this are discussed in detail below in the context of the discussion of the Criminal Justice and Public Order Act 1994 (UK). If the law is no longer clear this could create difficulties for suspects in deciding whether or not to answer police questions; for lawyers in deciding how to advise their clients; and for police officers engaged in the interrogation of suspects. The law might also be difficult for juries to apply.

2.5.2 Changes to the right to silence would threaten the vulnerable

Submissions to the Committee were able to advance a number of cogent and persuasive reasons why members of particular groups in society should be considered to be at particular risk of falsely incriminating themselves during police interrogation, and for whom the right to silence therefore represented a most important safeguard against the risk of wrongful conviction.[22] Among the groups at risk identified by the submissions were the following:

• Aboriginal Australians, whom it was said might be disadvantaged for a number of reasons including the fact that the historic relationship between the police and the Aboriginal community may make Aboriginal people fearful of the police; the low educational and literacy levels of many of the members of the Aboriginal community who have the most frequent dealings with the police; and the tendency on the part of some Aboriginal people to gratuitously concur with persons in authority.

• Young people, who, because of their immaturity, lack of verbal fluency, lack of experience, lack of knowledge about their rights, vulnerability to pressure and possible tendency to concur with adult authority figures, may find the experience of interrogation particularly intimidating and may find it difficult to assert themselves with the police.

• People with an intellectual disability, who are likely to be disadvantaged by their limited communication skills, tendency to answer questions with responses designed to please the questioner, limited ability to discern the 'leading' nature of questioning, limited ability to comprehend the significance of concepts such as those inherent in the caution, undeveloped understanding of complex concepts such as causation, and a tendency to attempt to conceal or deny their disability.

• People with a psychiatric illness may be disadvantaged in a number of different ways depending on the nature of their illness and any treatment they may be receiving for it. Because of their illness or the treatment they are receiving, the person might have an inaccurate perception or recollection of the events under investigation, be confused, disoriented or unable to concentrate during the police interview, or might be motivated by a desire to remove themselves from the custodial situation at any cost, including falsely inculpating themselves in the offence under investigation. In addition, many persons with a psychiatric illness have had such a negative experience of authority that they are unwilling to be frank; any adverse inference from silence in respect of such a person is therefore likely to be unsafe.

• People from a non-English speaking background who are obviously disadvantaged by their lack of fluency in English. This is especially true in cases where the question of guilt or innocence may turn on the accused's exact intentions. Where such persons have emigrated to Australia from a country with an oppressive policing regime their negative perceptions of law enforcement authorities may render the experience of interrogation highly intimidating and may make them particularly vulnerable to pressure.

• People disadvantaged because of the effect on their mental processes of drugs or alcohol.

The Committee is satisfied that the introduction of provisions based on the Criminal Justice and Public Order Act 1994 (UK) might indeed increase the risk that persons belonging to such vulnerable groups might falsely incriminate themselves during police interrogation.

2.5.3 Allowing adverse inferences to be drawn from silence would open a "Pandora's Box" of issues

In the Issues Paper, the Committee raised the question of whether allowing adverse inferences to be drawn from silence would open a "Pandora's Box", thereby lengthening trials and diverting the attention of the tribunal of fact away from the details of the alleged offence and towards arguably peripheral issues such as the accused's response to police questioning. As detailed below in the context of the discussion of the Criminal Justice and Public Order Act 1994 (UK), the evidence gathered by the Committee during its visit to the United Kingdom and the Republic of Ireland suggests that this would indeed occur.

2.5.4 Allowing adverse inferences to be drawn from silence would create an unacceptable risk of miscarriage of justice

Given the Committee's belief that changes to the right to silence could threaten the vulnerable, it seems clear that changes to the right to silence might create an unacceptable risk of miscarriage of justice. This risk could also arise from the fact that allowing adverse inferences to be drawn from silence would place pressure on suspects to talk and thereby reduce the reliability of any admissions that a suspect might make.

2.6 CHANGING THE RIGHT TO SILENCE WOULD BE INCONSISTENT WITH FUNDEMENTAL PRINCIPLES AND COMMUNITY STANDARDS OF FAIRNESS

A number of submissions argued that drawing adverse inferences from a suspect's exercise of their right to silence would be inconsistent with fundamental principles and community standards of fairness for several reasons, including the following:[23]

• If a suspect has a 'right' to silence then it is unfair to penalise him or her for exercising it. Indeed, allowing the drawing of adverse inferences from the exercise of the right to silence would significantly diminish that right.

• In a society such as ours, which places a high value on individual freedom and human dignity, requiring a suspect to incriminate themselves is considered unfair and inhumane. If adverse inferences could be drawn from a suspect's refusal to answer police questions, a suspect would effectively have the choice of either answering police questions and perhaps thereby incriminating themselves, or refusing to answer police question and thereby providing incriminating evidence against themselves in the form of their silence. In short, allowing adverse inferences to be drawn from silence would undermine the long-standing principle that no-one can be compelled to incriminate themselves.

• It is unfair to expect a suspect to disclose the facts which will provide the basis for their defence without first requiring the police to fully disclose the details of the allegations against the accused and the evidence which supports those allegations. As Lord Devlin once observed, this would be 'as startling as if, under our civil procedure, the defendant on receipt of a writ was required to call at the office of the plaintiff's solicitor to tell him what his defence was going to be to an undisclosed statement of claim, and to submit to questioning upon it'.[24]

The Committee shares these concerns about the fundamental fairness of any changes to the pre-trial right to silence.

2.7 THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT (1994) DOES NOT PROVIDE AN APPROPRIATE MODEL FOR REFORM

The Committee is also satisfied that if, contrary to its views, reform of the law relating to pre-trial silence in Victoria was considered desirable, the provisions of the Criminal Justice and Public Order Act 1994 (UK) ('the Act') do not provide an appropriate model for reform. The operation of the Act was described in some detail in the Issues Paper, and this Report will not cover that ground again; instead it will focus on those aspects of the Act which have been of particular concern to the Committee.

2.7.1 The Act was part of an overall 'package' of reforms

As the Committee itself became aware during its visit to the United Kingdom, and as a number of submissions pointed out,[25] the provisions of the Act were introduced as one of a number of legislative changes which had been enacted over a period of several years, and which effectively constituted a 'package' of reforms. Because of this the Committee is concerned that there may be dangers associated with introducing the provisions of the Act in isolation, without the other elements of that 'package'.

2.7.1.1 The Police and Criminal Evidence Act 1984

When the Act was introduced, the Police and Criminal Evidence Act 1984 (UK) ('PACE') and the various Codes of Practice developed thereunder had been in operation for 10 years. PACE and its associated Codes provide a degree of regulation and supervision over the investigative process which exceeds in its scope and detail the equivalent provisions of Part 3, Division 1, Subdivision 30A: Custody and Investigation of the Crimes Act 1958 (Vic). Any argument that the right to silence was rendered redundant in the United Kingdom by the enactment of these provisions does not, therefore, necessarily hold true for Victoria.

2.7.1.2 The duty solicitor scheme

Perhaps the most important of the rights introduced by PACE was a duty solicitor scheme which provided every suspect with a publicly funded right to legal advice prior to being interviewed in the police station.[26] All persons in police custody must be informed that they may at any time consult and communicate privately with a solicitor, either in person, in writing, or by telephone; and they must also be informed that independent legal advice is available free of charge from the duty solicitor. Given the comments we make below about the complexity of the case law to which the Act has given rise, and the difficulties associated with the caution, the Committee is firmly of the view that the introduction in Victoria of provisions based on the Act in the absence of a publicly funded right to free legal advice would be fundamentally unfair.

Indeed, the Committee believes that the introduction in Victoria of provisions based on the Act should only be contemplated if a publicly funded right to free legal advice is introduced at the same time. The introduction of such a right would, however, prove extremely costly. In the United Kingdom, the cost to legal aid of funding this right has steadily grown over the last ten years, with both the number of suspects receiving assistance, and the average cost of providing that assistance, showing annual increases. In the 1987-88 financial year, for example, 271,848 suspects received legal advice at police stations, at an average cost of £85.38 per suspect, for a total cost to legal aid of £23.2 million. In the 1997-98 financial year, by contrast, 765,795 suspects received legal advice at police stations, at an average cost of £130.55 per suspect, for a total cost of £99.9 million.[27] The Committee queries whether the resources to fund such a right are presently available in Victoria.

2.7.2 The complexity of the provisions

The provisions of the Act have not been easy to implement and have consequently spawned a large and growing body of case law; indeed one leading commentator has suggested that 'There is enough in section 34, and section 35 … to keep the Court of Appeal in business for the foreseeable future'.[28] The result of this is that - according to the evidence gathered by the Committee during its visit to the United Kingdom - the provisions are actually seldom relied on; and that when they are relied on, they have the potential to considerably lengthen the trial due to the large number of collateral issues which they raise.

2.7.2.1 The admissibility of the record of interview

Before any question of drawing adverse inferences from failure to mention a fact subsequently relied on at-trial can arise, the record of interview must first be held admissible. The admissibility of the record of interview may be challenged on a number of grounds, most importantly for present purposes under s 78(1) of PACE, which provides that:

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

An increasingly common ground of challenge under s 78 is that the accused was not fit to be interviewed. The Codes of Practice stipulate that 'No person who is unfit through drink or drugs to the extent that he is unable to appreciate the significance of questions put to him and his answers, may be questioned about an alleged offence in that condition'.[29] Where there is a question of fitness for interview, the police surgeon or 'Force Medical Examiner' may be asked to examine the suspect and advise the investigating officers whether or not the suspect is fit to be interviewed. The Force Medical Examiner's opinion is not, however, conclusive on the question, and it is becoming increasingly common for the Force Medical Examiner's opinion to be challenged at-trial in an attempt to show that the accused was indeed unfit to be interviewed.[30]

Where the admissibility of the record of interview is challenged on such grounds, a voir dire must be held, and such a voir dire will often consume a day or more of the court's time, with a number of experts, and in particular medical experts, being called to give evidence. If the challenge to the admissibility of the interview fails, then all of the evidence called on the voir dire might be called again in the course of the trial itself, as part of an attempt to persuade the jury to not draw any adverse inferences from the accused's failure to answer police questions. The obvious effect of all this is to lengthen the trial.

2.7.2.2 Pre-conditions to the operation of the provisions

In Argent v R [1997] 2 Cr App R 27, 32-3 the Court of Appeal identified six pre-conditions to the operation of s 34:

1. there must be proceedings against a person for an offence;

2. the alleged failure to mention a fact must occur before a defendant is charged;

3. the alleged failure must occur during questioning under caution by a constable;

4. the constable's questioning must be directed to trying to discover whether or by whom the alleged offence had been committed;

5. the alleged failure must be to mention any fact relied on in his defence in those proceedings; and

6. the fact which the accused failed to mention must be one which in the circumstances existing at the time he or she could reasonably have been expected to mention when so questioned.

Similar pre-conditions apply in respect to ss 36 and 37, and it will be immediately apparent from the sheer number of these pre-conditions, that any attempt to rely on the provisions will inevitably raise a number of collateral issues which have the potential to be highly time-consuming, and which may require the judge to give lengthy and careful directions to the jury on the matter. The amount of time and effort consumed in this process is, in the Committee's view, likely to be quite out of proportion to the weight of any adverse inference which the jury might ultimately draw from the accused's failure to mention a fact.

2.7.2.3 The reasonableness of a failure to mention a fact

The sixth pre-condition above is, no doubt, the most difficult for the court to resolve, and the Court of Appeal indicated that there were a number of circumstances which might lead a jury to hold that it was reasonable for the accused to fail to mention a fact during questioning:

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons such as that he was tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.

In other cases, the jury may conclude, after hearing all that the defendant and his witnesses may have to say about the reasons for failing to mention the fact or facts in issue, that he could reasonably have been expected to do so.[31]

Again, it will be immediately apparent from these comments that evidence will need to be presented by the defence in order to explain the reasons for failure to mention the fact. In relation to failure to testify, for example, the Court of Appeal has stressed that evidence must be adduced to support any explanation for failure to testify which is advanced by the defence:

… we wish to make it clear that the rule against advocates giving evidence dressed up as a submission applies in this context. It cannot be proper for a defence advocate to give to the jury reasons for his client's silence at the trial in the absence of evidence to support such reasons.[32]

The same must presumably be true for failure to mention a fact during police questioning. As the accused will usually be the only person who is in a proper position to explain the reasons for his or her actions, this will place additional pressure on the accused to testify at-trial: failure to testify may not only result in adverse inferences being drawn from that failure to testify, it may also lead the jury to draw an adverse inference from the failure to mention a fact pre-trial. On the other hand, where the defence does choose to present evidence to explain the failure to mention a fact relied on at-trial, this obviously has the potential to become a time-consuming collateral issue.

2.7.2.4 The significance of legal advice to remain silent

One aspect of the reasonableness of failure to mention a fact which seems particularly problematic to the Committee is the significance of the fact that the accused may have been advised by his or her lawyer to remain silent. In Condron v R [1997] 1 Cr App R 185 the Court of Appeal held that an adverse inference could be drawn from failure to mention a fact relied on at-trial even in cases where the accused was acting on legal advice to remain silent. In other words, the mere fact that the accused has been advised to remain silent will not necessarily be regarded by the court as a good reason for him or her to have done so.

The Committee is concerned that this places a suspect in the invidious position of having to decide whether or not it is in his or her best interests to accept the advice of his or her lawyer. It might also expose legal practitioners to negligence actions arising out of the advice they gave the accused; such litigation would inevitably involve the re-litigation of many of the areas dealt with in the criminal proceedings, and could result in a person convicted of a crime receiving compensation for the damages suffered as a result of that conviction. In the Committee's view such litigation would be contrary to public policy in that it might bring the administration of justice into disrepute.

2.7.2.5 Effect of the provisions on legal professional privilege

A further concern arises from the fact that in order for the jury to decide whether or not it was reasonable for an accused who was advised to remain silent to do so, evidence will have to be given about the reasons for that advice.[33] Such evidence might be given by the accused or by the lawyer who gave the advice; in any case, as the Court of Appeal has made clear, the giving of such evidence may constitute a waiver of legal professional privilege.[34]The effect of this is that the defence is faced with another dilemma: either lead no evidence about the reasons for the legal advice with the consequence that the jury will probably draw an adverse inference from the accused's silence; or attempt to explain the reasons for the advice, and thereby lose privilege over the communications passing between the accused and his or her legal adviser at the time at which the advice was given. Specifically, the waiver of privilege might allow the prosecutor to ask the accused and/or his or her lawyer about any admissions the accused may have made to the lawyer. In the Committee's view this would be fundamentally inappropriate and unfair.

2.7.3 The difficulty of the cautions

2.7.3.1 The general caution under s 34

In accordance with s 34 of the Act, the police are now required to caution a suspect in the following terms: 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. The Committee has the following concerns about this caution:[35]

• it is difficult to understand;

• the implications of the caution are even more difficult to understand; in particular, the caution does not explain how a failure to mention something relied on in court might 'harm' the suspect's defence; however, if the police were to attempt such an explanation, the explanation would be meaningless unless the suspect was able to comprehend the difficult evidential concepts entailed in the drawing of an adverse inference from failure to mention a fact subsequently relied on at-trial;

• if the suspect does not appear to understand the caution, then the police are required to explain it in their own words;[36] this is likely to prove extremely difficult to do accurately, and any inaccuracies might well be seized on by the defence as the basis for an argument that the accused had been misled about his or her rights;

• evidence gathered by the Committee during its visit to the United Kingdom suggested that even when the caution had been explained, it was not generally understood; and

• the caution seems threatening and coercive, and might well be understood by a suspect as saying that questions had to be answered.

2.7.3.2 The more specific cautions under ss 36 and 37

In addition to the general caution required by s 34, additional warnings will be necessary if inferences are to be drawn under ss 36 and 37 of the Act. As the Issues Paper explained, these sections apply when the accused has failed to account for apparently incriminating objects, substances or marks in or on their person, clothing or footwear, or in their possession, or to account for his or her presence at a particular place.[37] In order for an adverse inference to be drawn from the accused's failure to account for such matters, the police officer must have informed the accused, in 'ordinary language', of the following matters:

• what offence he or she is investigating;

• what fact he or she is asking the suspect to account for;

• that he or she believes the fact may be due to the suspect's taking part in the commission of the offence in question;

• that a court may draw an inference if he or she fails or refuses to account for the fact about which he or she is being questioned; and

• that a record is being made of the interview and that it may be given in evidence if he or she is brought to trial.[38]

Again, these cautions involve difficult evidential concepts which are likely to prove difficult to translate into 'ordinary language'; moreover, the caution leaves entirely unexplained the nature of the inferences which may be drawn from failure to account for a fact.

2.7.4 Threatening the vulnerable

As a result of the concerns identified above, there is the further concern already noted in this Report that far from meeting its ostensible aim of targeting 'professional criminals, hardened criminals and terrorists who disproportionately take advantage of and abuse the present system',[39] the Act may actually threaten the most vulnerable members of society. Indeed the evidence gathered by the Committee during its visit to the United Kingdom suggests that the 'hardened criminals' have adapted very well to the changed circumstances brought about by the Act. But the Act, of course, is not limited in its scope to 'hardened criminals and terrorists'; it applies to all suspects, including those who are not strong, intelligent or articulate, and who are less able to deal with the complexities described above.

2.7.5 Differing circumstances in the United Kingdom and Victoria

Finally, the Committee notes that the Criminal Justice and Public Order Act 1994 (UK) and its equivalents in Northern Ireland and the Republic of Ireland, were in large part a response to circumstances which fortunately do not exist in Victoria. Specifically, the curtailment of the right to silence in these jurisdictions was largely justified by reference to the problem of terrorism, a problem which does not exist to any real extent in Victoria.[40] The Committee accepts that if terrorism ever did threaten to become a significant problem in Victoria then our present investigative regimes might prove inadequate, and special legislation might need to be introduced to deal with this specific problem. Until such time, however, the Committee is satisfied that circumstances in Victoria do not justify such a fundamental change to our criminal justice system.

Scrutiny of Acts and Regulations Committee
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