Scrutiny of Acts and Regulations Committee

The Right to Silence, Final Report
Chapter 3 - At-Trial Silence

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The Committee is satisfied that there is a case for the reform of the law relating to judicial comment about an accused person's failure to testify.

3.1 THE PROHIBITION ON COMMENT IS IRRECONCILABLE WITH WEISSENSTEINER

The law relating to the use which may be made of, and the comments which may be made about, failure to testify in Victoria was outlined in detail in the Issues Paper. The salient points, however, are that the accused has a right to not testify in Victoria, and that if the accused chooses to not testify, neither the judge nor the prosecutor may comment on the accused's failure to testify. The prohibition on comment is imposed by s 399(3) of the Crimes Act 1958 (Vic). Notwithstanding the prohibition on judicial and prosecutorial comment, however, the decision of the High Court in Weissensteiner v R (1993) 178 CLR 217 establishes that at common law the jury are entitled to make use of the accused's failure to testify in certain limited circumstances. The nature of these circumstances will be discussed later in this Report.

The point of significance for the moment, however, is that in those circumstances a Victorian jury is currently entitled to make use of the accused's failure to testify in reaching its verdict, but the judge is prohibited from telling the jury this. Indeed, the combined effect of s 399(3) and Weissensteiner is that it is currently an appealable error of law for a judge to accurately direct the jury about how it may and how it may not use the accused's failure to testify in reaching its verdict.[41] The Committee agrees with one Victorian judge's description of this position as 'an absurd fetter upon the right to inform or remind the jury of what the law is',[42] and the Committee accordingly believes that one or other of two paths must be taken:

• either Weissensteiner should be overruled by statute so as to make the situation with respect to at-trial silence the same as that which applies in respect of pre-trial silence; namely, that no adverse inferences may be drawn from the accused's failure to testify, and the judge should be required to direct the jury accordingly when requested to do so by the defence; or

• the prohibition on comment should be lifted, so that the judge is permitted to direct the jury in accordance with Weissensteiner, and so direct it about the circumstances in which, and purposes for which, it may use the accused's failure to testify in reaching its verdict.

After deliberation, the Committee has decided to recommend the second of these paths. The reasons for this recommendation will be detailed after the proposed model for reform has itself been outlined.

3.2 THE RECOMMENDED MODEL FOR REFORM

3.2.1 The adoption of s 20(2) of the Evidence Act 1995 (Cwth)

The Committee recommends that s 20(2) of the Evidence Act 1995 (Cwth) and Evidence Act 1995 (NSW) should be used as the basis for reform in Victoria. The adoption of s 20(2) was recommended by the Committee in its earlier report on evidence,[43] and the Committee is satisfied that s 20(2) represents a better model for reform of the law in Victoria than does s 35 of the Criminal Justice and Public Order Act 1994 (UK). The reasons for this are fairly simple; first, s 20(2) appears to be a well-drafted provision which is operating without problem in several Australian jurisdictions; and secondly, the adoption of s 20(2) would, for reasons to be discussed shortly, permit the continued application and development of the common law principles currently applying in this area.[44] Section 20(2) is in the following terms:

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.

The language and terminology used in the current Victorian provisions are slightly different from that used by s 20 of the Evidence Act 1995, so that some changes to the precise wording of s 20(2) might be thought desirable for the sake of consistency. Such minor changes aside, the Committee recommends that s 20(2) should simply be substituted for the present s 399(3) of the Crimes Act 1958 (Vic), which is in the following terms:

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 counsel for the prosecution, or by the presiding judge.

3.2.2 Comment by the various parties

3.2.2.1 Comment by a co-accused

Under the law currently applying in Victoria, in joint trials one person standing trial in the proceedings is permitted to comment on the failure of another person standing trial in the proceedings to testify. In making that comment, counsel for the co-accused is not restricted by the decision in Weissensteiner, and can therefore suggest that the non-testifying co-accused has failed to testify because he or she is guilty. The proposed reform would not modify an accused's right to comment on a co-accused's failure to testify in any way whatsoever.

3.2.2.2 Comment by the prosecutor

The prosecutor is not currently permitted to comment on an accused person's failure to testify. If the Committee's recommendation is accepted this position would again remain unaltered. It has been held that the prohibition in s 20(2) on prosecutorial comment extends to implied comments. In R v Mansour (Supreme Court of New South Wales, 26 November 1996), for example, it was held that a prosecutor's claim that the evidence of prosecution witnesses was 'uncontradicted by other evidence at-trial' was prohibited by s 20(2) because of the implication it made about the accused's failure to testify.

3.2.2.3 Comment by the judge

The Committee's recommendation only changes the law relating to comment by the trial judge. The substitution of s 20(2) for the present s 399(3) would remove the prohibition on judicial comment on an accused person's failure to testify.

Although s 20(2) does not prescribe the form which such comment must take, it does prohibit a particular type of comment, namely comment suggesting 'that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned'. Such comment is in any case forbidden at common law, so that this aspect of s 20(2) merely gives 'statutory support' to existing common law principles.[45] The failure to prescribe the nature of the comment which is permitted also means that comment under s 20(2) is regulated by the common law. In short, s 20(2) basically leaves the question of how the judge should direct the jury to the common law. In order to understand how s 20(2) would operate, therefore, one needs to examine the current common law position on the evidential significance of failure to testify.

3.2.3 The nature of the permissible comment

In the recent case of R v OGD (1997), the New South Wales Court of Criminal Appeal reviewed the operation of the principles in Weissensteiner v R (1993) in light of the enactment of s 20(2) of the Evidence Act 1995 (NSW). The court confirmed that the following principles determined the nature of the comment the judge was entitled to make about an accused person's failure to testify:

First, the failure of an accused person to give evidence cannot be treated as an admission, by conduct, of guilt. The reason is that, if it were otherwise, the legal right to silence would be negated.

…

Second, it is commonly appropriate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown.

…

Third, it is ordinarily necessary to warn a jury that there may be reasons unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent.[46]

The first of these principles is that which is given 'statutory support' by the prohibition in s 20(2) on comment suggesting 'that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned'. This principle means that failure to testify cannot be used to fill any gaps in the prosecution case, because it does not in itself amount to evidence. One of the effects of this is that failure to testify can only become significant if the prosecution case - evaluated without reference to the failure to testify - is capable of establishing the accused's guilt beyond reasonable doubt. If the judge is going to comment on the failure to testify, the judge should also usually remind the jury of the fact that the accused is not under any obligation to testify, and that the onus of proving guilt remains on the prosecution.

The second principle is broader in one respect than the principle stated by the High Court in Weissensteiner v R (1993), because it clearly contemplates the application of these principles in cases based on direct evidence of guilt, whereas the language of some of the judgments in Weissensteiner suggested that the principles in that case could only be applied in cases based primarily on circumstantial evidence. The fact that R v OGD was itself a case based primarily on direct evidence - namely the testimony of the complainant - confirms this view. However, the principle as stated shares with Weissensteiner the essential feature that failure to testify can only be used to assist in the evaluation of the prosecution case, not as additional evidence of guilt.

In giving effect to the third principle, the judge would of course enumerate the possible reasons for failure to testify.

3.3 THE PROHIBITION ON COMMENT MAY DISADVANTAGE THE ACCUSED

The Committee is also concerned that the present prohibition on comment has the potential to disadvantage the accused in a number of ways, and is aware of a number of judicial statements to that effect:

• the jury may read more into an accused person's silence than it should;[47] furthermore, if the jury seeks guidance from the judge about how it might use the accused's failure to testify, it is an error of law for the judge to give that guidance;

• the judge is unable to inform the jury of the many reasons consistent with innocence why an accused person might choose to not testify; and

• as a co-accused is permitted to make adverse comment about the accused's failure to testify, the prohibition on judicial comment prevents the judge from setting those comments in context and redressing any possible unfairness in them.[48]

3.4 AT-TRIAL SILENCE IS DISINGUISHABLE FROM PRE-TRIAL SILENCE

The Committee is also satisfied that there are a number of justifications for differentiating between pre-trial and at-trial silence.

• Although the Committee acknowledges the point made by several submissions, that testifying in a public courtroom can be an intimidating experience for many persons accused of crime, the Committee believes that there is a significant difference between questioning in a police station and questioning at-trial. Questioning at-trial obviously takes place in public and under judicial control, and this means that there is no room for coercion, unfair questioning or for disputes about what was said and done by the various persons involved. The need for the protection offered by silence is consequently less at-trial than it is during the course of the investigation.

• It is unfair to expect the accused to respond to police questioning before the accused has had the opportunity to receive legal advice about his or her situation and at a time when, for a number of reasons, the accused may not do him or herself justice. By the time of the trial, however, the accused will obviously have had the opportunity to obtain such advice, and will therefore be in a far better position to make an informed and well-considered decision about whether or not to testify.

• Another reason why it may be thought unfair to expect a suspect to answer police questions is that at the time at which that expectation arises the suspect will not necessarily have been made aware of the full details of the allegations against him or her; nor will the police necessarily have disclosed the evidence which is being used to support those allegations. This is clearly distinguishable from the situation at-trial: as the accused cannot testify until after the close of the prosecution case, that case will obviously have been fully disclosed by the time the accused has to make a final decision about whether or not to testify.

• Although the jury will often become aware of the fact that the accused exercised his or her right to silence pre-trial, it is not inevitable that it will do so. By contrast, where at-trial silence is concerned the jury can hardly fail to notice that the accused has not testified. It also seems inherently likely that the jury will take account of this failure to testify in some way. Indeed, even those who oppose the drawing of adverse inferences from silence at-trial cannot deny the truism that uncontradicted evidence is more readily accepted than contradicted evidence. This means that the accused's failure to testify will almost inevitably play some role in the assessment of the prosecution case; any disagreement is simply as to the extent of the role it should play. It also means that the adverse use of failure to testify is less a means of compelling the accused to testify than an acknowledgement of the reality that failure to testify makes it easier for the jury to accept the prosecution case.

3.5 PERMITTING COMMENT HAS NOT CAUSED PROBLEMS IN OTHER AUSTRALIAN JURISDICTIONS

Any doubts that the Committee might have had about the wisdom of its recommendation to allow judicial comment on failure to testify are assuaged by the fact that such comment is currently permitted in the majority of Australian jurisdictions. In New South Wales, Western Australia, South Australia, Tasmania, the Australian Capital Territory, and in federal courts, the judge is permitted to comment on the accused's failure to testify, although the prosecutor is not. In Queensland, both judge and prosecutor may comment on the failure to testify. Victoria and the Northern Territory are, then, the only jurisdictions in Australia in which both judicial and prosecutorial comment on failure to testify is prohibited. In those jurisdictions where judicial comment is permitted, no particular type of comment is prescribed; instead, the questions of the use to which failure to testify may be put, and the comments which may therefore be made about it, are regulated by the common law, as discussed above.

No compelling evidence was presented to the Committee to show that the provisions in those jurisdictions where judicial comment is permitted have created an unacceptable risk of miscarriage of justice. Indeed, it is notable that in the review of the right to silence currently being conducted in New South Wales, the New South Wales Law Reform Commission did not even raise the possibility of prohibiting comment by the judge, although its terms of reference would certainly have allowed it to do so. Instead it focused on the question of whether the New South Wales provisions should be broadened so as to permit 'unrestricted comment by the trial judge, the prosecution, or both'.[49]

Given the apparently uncontroversial and unproblematic operation of provisions permitting judicial comment on an accused person's failure to testify in a significant majority of Australian jurisdictions, it is difficult for the Committee to accept that the arguments for retaining Victoria's prohibition on comment can be anywhere near as compelling as those relating to the retention in its present form of the pre-trial right to silence.

Scrutiny of Acts and Regulations Committee
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