Scrutiny of Acts and Regulations Committee

The Right to Silence: An Examination of the Issues
Chapter 3 - The Right to Silence in Victoria

[Back to Table of Contents]

This part of the Issues Paper contains a detailed exposition of the right to silence as it currently applies in Victoria.

3.1 Pre-Trial Silence

The present position in Victoria is that:

• a suspect has a right to refuse to answer questions put to him or her by criminal investigators; and

• where a suspect chooses to exercise this right, the fact that he or she did so can not be used against him or her at any subsequent trial.

This position is explained in detail below.

3.1.1 The right to refuse to answer questions put by criminal investigators

In the context of criminal investigation, a suspect has a right to refuse to answer police questions. This right was expressed in the following way by Lord Parker in Rice v Connolly [1966] 2 All ER 649, 652:

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to the effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority.

The scope of this right was defined by the High Court in the case of Petty v R (1991):

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 which they played.[10]

Example: A person is suspected by police of committing an offence. He is interviewed by the police but refuses to answer any questions. By doing so he does not commit an offence.

This first aspect of the right to silence is not the focus of this inquiry. As the Australian Law Reform Commission commented in 1975:

No one can be heard to say that if a person questioned declines to answer he should be compelled by force to do so. The right to silence in this basic sense is not, and never has been, in issue in our society.[11]

The Committee will not, therefore, be considering whether it should be made an offence for a suspect to refuse to answer questions put to him or her by a person in authority. The focus of the Committee's inquiry in relation to pre-trial silence will instead be the issue of whether it should be permissible for a suspect's refusal to answer questions to be used in any way against him or her.

3.1.2 The consequences of exercising the right to refuse to answer questions

What is at issue in this inquiry is the consequences which can flow from the accused's exercise of their right to pre-trial silence. The orthodox view, confirmed by the High Court in Petty v R (1991) 173 CLR 95 is that the pre-trial right to silence can be exercised without penalty. To use the words of Brennan J, `It is a "right" which attracts an immunity from any adverse inference which might otherwise arise from its exercise'.[12] In other words, a suspect has both a right to refuse to answer official questions, and a right to not have that refusal used against him or her at trial. Thus the passage from Petty v R (1991) above was followed by these comments:

An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his failure to answer such questions or to provide such information. To draw such an inference would be to erode the right to silence or to render it valueless " That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.[13]

It is this aspect of the pre-trial right to silence which is controversial. When people talk about curtailing or abolishing the right to silence, they are not usually talking about forcing a suspect to answer official questions, or making it an offence not to do so; they are talking about allowing the fact that a suspect refused to answer official questions to be used against him or her at trial. Before turning to the ways in which the exercise of the pre-trial right to silence might be used, however, it may be helpful to explain the relationship between the right and the caution, and to distinguish the right to silence from the privilege against self-incrimination.

3.1.3 The right and the caution

The right to silence is a common law right. It has, however, been given a degree of statutory recognition by the Crimes Act 1958 (Vic). Section 464J, for example, expressly provides that none of the Crimes Act provisions dealing with custody and investigation affect `the right of a person suspected of having committed an offence to refuse to answer questions'. Section 464A(3) also requires that a suspect in custody must be informed `that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence', before they are questioned by an investigating official. In other words, suspects must be cautioned before questioning.

If a suspect has been cautioned, and then refuses to answer some or all of the questions asked, the courts will generally assume that the refusal is due to the person's exercise of the right of silence. There are, therefore, numerous judicial statements to the effect that no adverse inferences can be drawn from the silence of an accused person who has been cautioned. In Woon v R (1964), for example, Windeyer J commented that `no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak'.[14]

The more interesting question is whether an adverse inference can be drawn from silence before cautioning on the basis that silence before cautioning can not be regarded as an exercise of the right to silence. The courts have declined to accept this argument. In Hall v R (1971), for example, Lord Diplock pointed out that:

The caution merely serves to remind the accused of a right which he already possesses at common law. The fact that in a particular case he has not been reminded of it is no ground for inferring that his silence was not in exercise of that right, but was an acknowledgement of the truth of the accusation.[15]

Similarly, in the Victorian case of R v Bruce (1988), Gray J commented that `silence can never amount to an admission if the silence is occasioned by the conscious exercise of a known right to remain silent, whether the suspect has been told of this right or not'.[16] The real issue then in cases of silence before cautioning is whether the silence can be attributed to a conscious exercise of the right to silence. If it can, then no adverse inference can be drawn. If it can not, then an adverse inference may be open.

3.1.4 The right and the privilege against self-incrimination

The privilege against self-incrimination allows a person to resist what would otherwise be a compulsory request for information, on the grounds that the information would tend to be incriminating. It applies to information in the form of answers to questions, and to information in the form of documents in the person's possession. The privilege is in part a rule of evidence, which allows a witness in court proceedings to refuse to answer a question on the grounds that the answer to the question would tend to be incriminating. But the privilege also applies more generally - unless it has been clearly abrogated by statute - to any official request for information.

The privilege has been described by the High Court as being `in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them'.[17] The privilege is both broader and narrower than the pre-trial right to silence. It is broader in that it can be claimed by anyone, not just those who are the subject of a criminal investigation. It is narrower in that it can only be claimed on a question-by-question basis, or document-by-document basis. A suspect who exercises their right of silence can refuse to answer all questions regardless of their content. A person claiming the privilege against self-incrimination, on the other hand, can only refuse to answer a specific question on the grounds that the answer to that specific question would tend to incriminate him or her.

3.1.5 How might a refusal to answer questions be used?

There are two main ways in which an accused person's refusal to answer questions put to him or her by a person in authority could be used against him or her. The first is to say that the refusal to answer questions is behaviour consistent with guilt. This argument was famously put by Jeremy Bentham - albeit in the context of silence at trial - in the following way: `Innocence claims the right of speaking, as guilt invokes the privilege of silence'.[18] In other words, an accused's person silence is suggestive of guilt because innocent people are not silent. If this generalisation is true, then a refusal to answer questions clearly provides circumstantial evidence of guilt and could in theory be admitted for that purpose.

Example: The accused was interviewed by police but refused to answer any of their questions. The fact of the refusal could be admitted as circumstantial evidence of guilt. The jury would be invited to infer that the fact that the accused refused to answer police questions renders the inference of guilt more probable. The basis for this inference would be a generalisation to the effect that innocent people answer police questions.

The second main way in which an accused person's refusal to answer questions could be used is to undermine the credibility of a defence which was relied on at trial but which was not mentioned by the accused when questioned by the police. The assumption here is that if the defence were true it would have been mentioned by the accused during police questioning; the fact that it was not mentioned suggests that it is not true.

Example: The accused was interviewed by the police but refused to answer any of their questions. In particular, the accused was asked to explain certain incriminating circumstances, such as his presence at the scene of the crime, or his ownership of a weapon used in the commission of the crime. He declines to provide any such explanation. At trial the accused does put forward an innocent explanation for the incriminating circumstances. The jury might be invited to infer that if the explanation had been true it would have been given to the police; that it was not, suggests that it is false.

Both of these possible uses of silence are prohibited at common law. In Petty v R (1991), the High Court rejected a line of authority suggesting that there was a distinction `between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence', and that only the former was prohibited.[19] The Court commented that:

We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his exercise of the right of silence. Such an erosion of the fundamental right should not be permitted.[20]

The present position in Victoria, therefore, is that no adverse inference, of any sort, can be drawn against the accused by reason of his or her exercise of the pre-trial right of silence.

3.1.6 The jury may still find out about the silence

The fact that the accused's exercise of their right of silence can not be used as the basis for an adverse inference does not necessarily mean, however, that the jury will not find out that the accused exercised their right of silence. Indeed, one of the findings of an English study was that in a majority of cases where the accused had exercised their pre-trial right of silence, the jury were made aware of this.[21] Aronson and Hunter identify a number of reasons for why this happens, the most important of which are detailed below.[22]

When the fact of the accused's silence is disclosed for one of the reasons below, the jury should be directed that they must not draw an adverse inference against the accused because of the fact that he or she chose to exercise the right to silence:

... where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given - as soon as the evidence is given and, if necessary, again in the summing up - to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty ... It would usually be appropriate to remind the jury that (if it be the fact) the accused had specifically been cautioned by the police that he was not obliged to answer any questions, so as to avoid any suggestion of a familiarity by the accused with criminal investigation procedures.[23]

What happens in these cases, therefore, is that the rule which renders the accused's exercise of their pre-trial right of silence inadmissible against them is effectively converted into a rule about how juries should be instructed.[24]

3.1.6.1 Selective answering

In Woon v R (1964) 109 CLR 529, the High Court held that the selective answering of questions by an accused could, in the right circumstances, give rise to a consciousness of guilt inference. In Woon the accused, having been duly cautioned by the police, was being questioned in relation to a bank burglary. The accused answered some of the questions put by police, but declined to answer others. The questions which the accused declined to answer included the following:

Q: Do you deny breaking into the bank with the others?

A: I would say that you are going to charge me with this. I better not say any more.

Q: Is this money part of the money stolen from the bank?

A: Now that is a question that I should not answer.

Q: Is it not a fact that you have sent telegrams to a man at that address?

A: Now, that is something you might be able to check on. I will not say I have and I will not say I have not.

Q: Are you prepared to tell us the dates you were in Melbourne during the last twelve months?

A: I would rather not.

Q: Have you anything to say about the allegations which have been made against you?

A: I should not say too much, I am just trying to work out what I should do now.

The Court stressed that it would not have been entitled to infer guilt `from mere refusals to answer, or from statements that amounted only to refusals to answer'.[25] Nevertheless, a majority of the High Court (with Windeyer J in dissent) was satisfied that there was `ample room for the jury to find in some of the answers the applicant gave, considered in light of the facts he admitted " sufficiently convincing indications of a guilty conscience to satisfy them beyond reasonable doubt that he was in fact guilty'.[26] In other words, the Court was satisfied that there was more to the accused's selective silence than a `mere' refusal to answer; in the words of McHugh J in Petty v R (1991), the inference in Woon was `an inference of consciousness of guilt drawn from conduct or demeanour (which, of course, may include silence) when taken in combination with other evidence'.[27]

Subsequent cases have, however, been reluctant to follow the decision in Woon. In R v Towers (1993), for example, Handley JA approved a line of Victorian cases which had distinguished Woon, commenting that `If the jury are not entitled to draw adverse inferences from an exercise of the right to silence the position should be no different when the right has been exercised selectively'.[28] The situations where the inference in Woon may be drawn therefore appear to be rare, and in particular seem unlikely to include cases where the accused's selective refusal occurred after caution.

3.1.6.2 Setting the context for other evidence

In other cases where the accused has answered some questions but refused to answer others, the courts have admitted the entire record of interview on the basis that any editing of the record of interview to remove the unanswered questions might leave the record of interview too disjointed to be properly understood. As the New South Wales Court of Criminal Appeal commented in Plevac v R (1995), the questions and answers which do not contain admissions may be `relevant to set the other questions and answers in context'.[29]

3.1.6.3 Pre-empting speculation or criticism

Courts have sometimes said that evidence of a record of interview in which the accused exercised his or her right of silence should be admitted in order to avoid speculation by the jury about whether the accused had given any account of his or her actions to the police, or to anticipate defence criticism of the fairness of the conduct of the police. In R v Reeves (1992), for example, Hunt CJ at CL commented that:

... it ought reasonably to be foreseen that the fairness of the conduct of the investigating police officers may be criticised and in a way of which the Crown will not necessarily be forewarned ... during its case in chief. It seems to me, then, that the fact that such questions were asked of the accused is therefore usually admissible in order to meet (at least in part) such anticipated criticism ... Once the fact that the questions were asked is found to be admissible, the nature of the answers given must necessarily also be admissible - even if it discloses that the accused exercised his right to silence - for otherwise a very misleading impression may be conveyed, and one which would usually be detrimental to the accused.[30]

3.1.6.4 Failure to explain the possession of stolen property

There is also what might be described as an `exception' to the rule that adverse inferences can not be drawn from the accused's exercise of the right to silence. In cases where the accused is found in possession of recently stolen property, and does not provide an explanation for this when given an opportunity to do so, the jury may be entitled to infer that the accused is guilty of either theft or receiving. According to the High Court, this inference `will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation'.[31] In other words it is unexplained possession which justifies the inference, not lack of explanation per se. The High Court added that:

The accused must have had an opportunity to give an explanation in circumstances where, if he is innocent, an explanation might reasonably be expected. These circumstances do not encompass the situation where an accused, having been duly cautioned, declines to answer questions by the police in the exercise of his right to do so. On the other hand, the fact that the caution was not given or that the right to silence was asserted or exercised does not itself provide an explanation of the possession of recently stolen goods or necessarily negate the existence of circumstances of unexplained possession of such goods where such circumstances otherwise exist.[32]

3.1.6.5 Silence outside the investigative context

Finally, silence in contexts which do not give rise to the right of silence can be used as the basis for an adverse inference. It should be recalled that the right of silence was described by the High Court in Petty v R (1991) in the following terms:

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 which they played.[33]

It is implicit in this definition that a person does not have a `right to silence' when being questioned or confronted with accusations by persons who are not in authority. Thus inferences of guilt have been held permissible in cases where the accused failed to deny an accusation of guilt made by the mother of a woman he was alleged to have murdered;[34] and where the accused failed to protest his innocence during the course of conversations with his friends about the fact that he was suspected of having murdered his wife.[35] Silence in such situations can not be construed as an exercise of the right to silence and can therefore be used against the accused.

3.2 At-Trial Silence

The present position in Victoria is that:

• an accused has a right to not testify at his or her trial;

• if the accused chooses to not testify, the judge and prosecutor are prohibited from making any comment about that fact, and the failure to testify can not be used as evidence of guilt; however,

• in certain circumstances the accused's failure to testify can be used by the tribunal of fact when assessing the strength of the prosecution case.

This position is explained in detail below.

3.2.1 Right to not testify

In criminal prosecutions in Victoria, the accused is a competent but not compellable witness for the defence. Thus s 399(1) of the Crimes Act 1958 (Vic), provides that:

Subject to this section, where a person is charged with an offence he shall at every stage of the proceedings against him be a competent, but not compellable, witness in his own defence or in defence of any other person charged in those proceedings.

The effect of this section is that the accused:

• can not testify for the prosecution;

• can testify in his or her own defence, but need not do so; and

• can testify in the defence of a co-accused, but can not be compelled to do so.

In other words, the accused has a choice about whether or not to testify, and can thus be said to have a right to remain silent at trial. Until relatively recently, the accused also had the right to give unsworn evidence; that is, evidence which is not on oath and which is not subject to cross-examination. This right was abolished in Victoria in 1993: see Evidence Act 1958 (Vic), s 25. Norfolk Island is the only Australian jurisdiction in which the right to give unsworn evidence is still available.

3.2.2 Relationship with the privilege against self-incrimination

If the accused does testify, however, then he or she loses the privilege against self-incrimination which is available to other witnesses. Section 399(4) of the Crimes Act thus provides that:

A person charged and being a witness pursuant to this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged.

The point of this provision is to avoid the farce of an accused person choosing to testify, but then declining to answer questions in cross-examination on the grounds that the answers to the questions would tend to incriminate him or her in the offence charged. If the accused wishes to avoid such questioning, the only way of doing so is to choose to not testify at all. The accused is, however, generally protected from prejudicial questions revealing that `he has committed or been convicted of or been charged with any other offence other than that wherewith he is then charged, or is of bad character': s 399(5) of the Crimes Act.

3.2.3 Evidential significance of failure to testify

In Weissensteiner v R (1993) 178 CLR 217, the High Court confirmed a long line of authority which establishes that notwithstanding that the accused has a right to not testify, the exercise of that right can nevertheless be used against him or her.[36] At the very least, the accused's failure to testify may mean that prosecution evidence remains uncontradicted, and it is axiomatic that uncontradicted evidence is more easily accepted than contradicted evidence. In appropriate cases, the Court held that failure to testify could also be taken into account by the jury in determining whether or not the prosecution had discharged its burden of proof. In a case based on circumstantial evidence the requirement of proof beyond reasonable doubt means that the tribunal of fact must be satisfied that the evidence is such as to render unreasonable all hypotheses consistent with innocence. According to Weissensteiner, failure to testify can be used by the tribunal of fact as a basis for concluding that there are no reasonable hypotheses consistent with innocence, and that guilt has accordingly been proven beyond a reasonable doubt.

A majority of the Court stressed, however, that an accused person's failure to testify could never amount to actual evidence of guilt. In order for the accused's failure to testify to be used in the way sanctioned by Weissensteiner, the court indicated that three conditions would have to be satisfied:

• first, the prosecution case must already (that is, without taking into account the failure to testify) be able to support an inference of guilt;

• secondly, the accused must be seen to be in possession of some knowledge of the events forming the subject of the charge which is peculiar to him or herself;

• thirdly, it must be reasonable to expect that the accused would give that version of events - at trial - if he or she were innocent.[37]

The High Court did accept, however, that there could be innocent explanations for a failure to testify. For example, `the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution'.[38] In R v Mora (1996), Smith AJA also argued that the `limited choice' available to an accused following the abolition of the right to make an unsworn statement:

... must be a circumstance relevant to any consideration of the accused's silence. The abolition of the right to give unsworn evidence introduces possible reasons for the accused's silence - reasons which may be innocent and which do not bear any relationship to the strength of the Crown case. The difficulties facing an accused person giving sworn evidence have been referred to many times over the years ... The decision to be silent may also be the result of erroneous legal advice about, for example, the strength of the Crown case " Any assessment of the accused's silence is made more difficult by the absence of any evidence as to the reasons for the accused's silence.[39]

These difficulties notwithstanding, the principles in Weissensteiner have been relied on in jurisdictions, including Victoria, where the right to give unsworn evidence has been abolished.

3.2.4 The application of Weissensteiner

Weissensteiner is mainly relevant in cases where the prosecution case is primarily based on circumstantial evidence, because it is only in such cases that the accused can be said to have knowledge `peculiar' to him or herself. That said, Weissensteiner has also been applied in cases where the prosecution case is based on direct evidence.[40] The facts of Weissensteiner provide a good example of the way in which the decision in that case can be applied. In Weissensteiner the accused was charged with the murder of a couple with whom he had gone sailing in the South Pacific, and with the theft of their yacht. The prosecution case was based entirely on circumstantial evidence: no witnesses who had seen what had happened to the missing couple; nor had their bodies ever been found. The inference that the accused had murdered them, and stolen their yacht, largely rested on the following circumstances:

• the fact that there had been no trace of the two since shortly after they and the accused had set sail together; this was especially significant given that one of the two was pregnant, and that they had both previously been in regular contact with their families;

• the fact that the accused was in possession of the boat, which belonged to the two and on which they had spent all their savings;

• the fact that the boat still contained numerous personal possessions belonging to the two, including possessions which they always took with them, and including possessions which had clearly been bought in preparation for the birth of their child; and

• the fact that the accused had told numerous inconsistent stories about where the two had gone, none of which could be substantiated.

No doubt there are many possible explanations for these circumstances. The couple might have decided to disappear for some reason, and have given the boat to the accused and sworn him to secrecy; or they might both have been swept overboard and drowned. With sufficient imagination, many other `innocent' scenarios could no doubt be constructed. But one of the most obvious explanations for the circumstances is that contended for by the prosecution: that the accused murdered the couple and stole their boat.

In order for the jury to be satisfied of the accused's guilt beyond reasonable doubt, however, the jury must be satisfied that none of the `innocent' explanations for the circumstances are reasonable. This is where Weissensteiner comes into play. In deciding whether or not any of the innocent explanations are reasonable, the jury is entitled to conclude that if an explanation had been true the accused would have testified in support of it; if the accused does not testify, therefore - as the accused did not in Weissensteiner - then the jury are entitled to conclude that there are no reasonable hypotheses consistent with innocence, and that the accused's guilt has therefore been proven beyond reasonable doubt. Of course, the jury can only do this if the three conditions set out above have been satisfied.

What the jury is not entitled to do is to treat the accused's failure to testify as an additional incriminating circumstance. The jury are not entitled to conclude, in other words, that by failing to testify the accused has behaved in a manner consistent with guilt, and is therefore guilty.

3.2.5 Prohibition on comment

In Victoria, however, no comment may be made by either prosecution or judge on the accused's failure to testify; counsel for a co-accused may, however, make adverse comment. Section s 399(3) of the Crimes Act thus provides that:

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.

The prohibition is applied with extreme rigour, with Isaacs J commenting that if:

... reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power to give evidence on oath, and yet failed to give, or in other words `refrained from giving', evidence on oath, there would be a contravention of the sub-section now under consideration.[41]

This prohibition on comment means that a jury in Victoria can not be instructed in accordance with Weissensteiner.

3.2.6 Evidential significance given the prohibition

The prohibition on comment does not mean, however, that an accused person's failure to testify has no evidential significance in Victoria. According to Mason CJ, Deane and Dawson JJ in Weissensteiner v R (1993):

... the right of the jury to take into account the silence of the accused does not stem from the right of the trial judge to comment upon it. Even in those jurisdictions where comment is prohibited, the jury may consider the accused's silence. The prohibition merely forbids the trial judge from reminding them that they may do so and informing them of the way in which they may properly do so.[42]

In other words, failure to testify has the same evidential significance in Victoria that it has in those jurisdictions where comment is permitted; the prohibition on comment simply means that the jury can not be told this. This suggests that the prohibition on comment may now be anachronistic, because if the jury are permitted to use the accused's failure to testify then they should presumably be told when and how they may do so. Indeed, it is arguable that the prohibition may actually be to the accused's detriment, because `the jury may read more into the silence of an accused than they are entitled to do and, as a result, the accused may be at a greater disadvantage than if comment by the trial judge were allowed'.[43]

At present, however, the accused's failure to testify can only be explicitly referred to and taken into account on appeal. In determining an appeal based on, for example, a claim that the verdict was unsafe and unsatisfactory, the court will be entitled to have regard to the accused's failure to testify and consider whether that permits a more ready acceptance of the prosecution case.[44] If failure to testify makes an inference of guilt safer in accordance with the principles in Weissensteiner then it will also clearly make a conviction more difficult to successfully appeal against.

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria