Scrutiny of Acts and Regulations Committee

The Right to Silence: An Examination of the Issues
Chapter 4 - The Right to Silence Elsewhere

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This part of the Issues Paper contains a brief survey of the right to silence as it applies in some other common law jurisdictions. It does not deal with the United Kingdom, which is discussed in detail in a later part of the Paper.

4.1 Other Australian Jurisdictions

As well as Victoria, Petty v R (1991) applies in Queensland, Western Australia, South Australia, Tasmania and the Northern Territory. In New South Wales, the Australian Capital Territory, and in federal courts, Petty v R (1991) has been displaced by s 89 of the Evidence Act 1995 (Cwlth) and Evidence Act 1995 (NSW). Section 89 is, however - subject to one possible qualification - to precisely the same effect as Petty v R (1991). The section, and the possible qualification, are discussed in detail below, under the heading '5.3 1985-87: The Australian Law Reform Commission's Reports on Evidence'.

In all Australian jurisdictions, the accused has the right to testify or not, as he or she chooses; and in all Australian jurisdictions, a co-accused is permitted to make adverse comment on that failure to testify. The Northern Territory is, however, the only jurisdiction apart from Victoria, where there is a prohibition on comment on failure to testify by both judge and prosecutor.[45] In New South Wales, Western Australia, South Australia, Tasmania, the Australian Capital Territory and in federal courts, only the prosecutor is prohibited from commenting on the accused's failure to testify.[46] In Queensland, there is no legislative prohibition on comment, which means that both judge and prosecutor can comment on an accused's failure to testify.

4.2 Canada

In Canada, the right to silence exists as a combination of the common law, statute and the Canadian Charter of Rights and Freedoms. As far as pre-trial silence is concerned, a person who is subject to the coercive power of the state has a right to refuse to answer questions; this happens on the person's arrest, charge or detention. This right to silence has been recognised as a principle of fundamental justice, protected by s 7 of the Charter: see R v Hebert [1990] 2 SCR 151. It is also accepted that the exercise of the right to silence can not be used against the accused at trial: see R v Chambers [1990] 2 SCR 1293. The position in Canada is therefore the same as in Victoria.

The situation in relation to at-trial silence is, however, slightly different. As in Victoria, the accused has a right to not testify at trial, and this right is enshrined in s 11(c) of the Charter. Also as in Victoria, there is a statutory prohibition on comment by the judge or prosecutor on an accused person's failure to testify: s 4(6) of the Canada Evidence Act. The uses to which the accused's failure to testify can be put are, however, far more limited than the uses permitted by Weissensteiner v R (1993). In R v Noble (1997) 146 DLR (4^th) 385, a majority of the Canadian Supreme Court held that an accused person's failure to testify could only be used in two ways. First, if the tribunal of fact has already reached a belief in guilt beyond a reasonable doubt, then the accused's silence may be taken as confirming that finding of guilt. Secondly, the failure to testify might remind the tribunal of fact that it need not speculate about possible defences in support of which no evidence has been led. As the majority conceded, both uses are superfluous.

In a powerfully argued dissent, a minority of the Court held that failure to testify could amount to evidence of guilt, but only where the prosecution case had enveloped the accused in a `strong and cogent network of inculpatory facts'. The minority's position is similar to the position put forward by the High Court in Weissensteiner v R (1993) subject to two main differences: first, the minority position would allow the failure to testify to be used as actual evidence of guilt; but secondly, the minority position would only allow it to be so used when the prosecution case had established a `strong and cogent network of inculpatory facts', which is arguably a higher threshold than that imposed by Weissensteiner.

4.3 The United States of America

In the United States, the right to silence is contained in the Bill of Rights, with the Fifth Amendment to the United States Constitution providing that `No person " shall be compelled in any criminal case to be a witness against himself'. The Fifth Amendment applies both at trial and in the context of pre-trial criminal investigation.[47]

Pre-trial, the accused must of course be warned that he or she has the right to remain silent but that anything he or she says can and will be used in evidence: Miranda v Arizona 384 US 436 (1966). If a suspect confesses or makes admissions without having received this warning, then their confession or admission will be automatically excluded. More significantly for present purposes, the silence of a suspect who has been properly informed of his or her right to silence can not be used at any subsequent trial: Doyle v Ohio 426 US 610 (1976). It can neither be used as the foundation for a consciousness of guilt inference; nor to impeach the credibility of the accused. The silence of a suspect who has not been cautioned can, however, be used for these purposes: Raffel v US 271 US 494 (1926), Jenkins v Anderson 447 US 231 (1980), Fletcher v Weir 455 US 603 (1982).

The accused also has the right to not testify at trial, and can not be penalised for exercising that right. In Griffin v California 380 US 609 (1965), for example, the Supreme Court held that the Fifth Amendment was violated by a prosecutorial argument that the accused's failure to testify could be as evidence of his or her guilt. In Carter v Kentucky 450 US 288 (1981) the Supreme Court went further, holding that where requested by an accused to do so, the judge must direct the jury that the accused's failure to testify should not be used against him or her.

4.4 The Republic of Ireland

In common with the other countries discussed in this section, the starting point for discussion of the right to silence in the Republic of Ireland is that at common law a suspect was recognised as having a right to refuse to answer police questions, and the accused was recognised as having a right to refuse to testify. The latter right is now recognised as an element of the right to a fair trial conferred by Article 38 Section 1 of the Irish Constitution.[48] If, however, the accused chooses to testify then he or she must answer questions put to him or her, and cannot refuse to do so on the grounds that the answers might incriminate him or her in the offence charged.[49] This corresponds with the position in Australia.

The pre-trial right to silence, on the other hand, is primarily regarded as a corollary of the right to freedom of expression implicitly conferred by Article 40 of the Constitution,[50] although some judges have indicated that it may also be an element of the right to a fair trial under Article 38.1.[51] Irish courts have, however, held that this right is not absolute and can be `abridged' by the Dail (the Irish Parliament) provided that the effects of the abridgement are `proportional' to the objectives which the abridgement is intended to achieve. Individual rights may thus be balanced against the right and duty of the State duty to defend and protect the life, person and property of all citizens'.[52]

Examples of legislation which have been approved on this basis include ss 18 and 19 of the Criminal Justice Act 1984, which allow the tribunal of fact to draw adverse inferences from the accused's failure to account for certain matters, such as his or her possession of an incriminating object, or presence at a particular place.[53] These provisions were used as the basis for some of the provisions of the Criminal Evidence (Northern Ireland) Order 1988 and the Criminal Justice and Public Order Act 1994 (UK), which are discussed below. There is a paucity of material on the operation of the Irish provisions; this may be because have not been relied on a great deal by prosecutors. As one commentator has noted, `It is difficult to say how frequently these sections have featured in criminal trials but suffice to say they have not been overused'.[54]

A further curtailment of the right to silence was introduced by s 7 of the Criminal Justice (Drug Trafficking) Act 1996.[55] Section 7 allows the drawing of `such inferences as appear proper' from a suspect's failure to mention when questioned by the police `any fact relied on in his defence'. The provision has obvious similarities to s 34 of the Criminal Justice and Public Order Act 1994 (UK), which is discussed in detail below. Unlike the British provision, however, s 7 is restricted in its operation to drug trafficking offences. It has not yet been the subject of constitutional challenge.

Another provision curtailing the right to silence is s 52 of the Offences Against the State Act 1939. Section 52 allows the police to demand that a person detained under the Act provides a full account of his or her movements and actions during any specified period of time, and all information in his or her possession in relation to the commission or intended commission by another person of any offence under the Act. Failure to provide this account or information is an offence punishable by up to six months imprisonment. A challenge to the constitutionality of s 52 was rejected by the Irish Supreme Court in the case of Heaney v Ireland [1996] 1 IR 580. The court noted that s 52, along with the other provisions of Part V of the Act, is an exceptional provision which only comes into operation when the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and has made a proclamation to that effect. Such a proclamation was made on 26 May 1972, and although the Dail has the power to pass a resolution annulling it, is still in force.

4.5 International Instruments

The right to silence has also sometimes been recognised by international human rights instruments. Article 14(3)(g) of the International Covenant on Civil and Political Rights thus provides that in criminal proceedings, no person should `be compelled to testify against himself or to confess guilt'. It has also been accepted by the European Court of Human Rights that the right to remain silent and the privilege against self-incrimination are `an inherent part of the protection given to an accused under Article 6' of the European Convention on Human Rights, which is concerned with fair trial rights.[56] An explicit right to silence was conferred by rule 42(A) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia; and Article 26(6)(a)(i) of the Draft Statute for an International Criminal Court, submitted to the United Nations General Assembly by the International Law Commission, not only confers a right to silence, but provides that silence can not be used as `a consideration in the determination of guilt or innocence'.[57]

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