Scrutiny of Acts and Regulations Committee

The Right to Silence: An Examination of the Issues
Chapter 5 - Australian Inquiries into the Right to Silence

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There have been several Australian inquiries which have been concerned with, or which have touched on, aspects of the right to silence.

5.1 1975: The Australian Law Reform Commissions Report on Criminal Investigation

In 1975 the Australian Law Reform Commission handed down its report on Criminal Investigation (ALRC 2). The Report was only concerned with the pre-trial right of silence, as opposed to the right of an accused to not testify. It recommended the retention of the right for the following reasons:

• there are several reasons for silence which are consistent with innocence, rather than guilt, so that a refusal to answer questions is equivocal;

• allowing a jury to draw inferences from a suspect's refusal to answer questions would force suspects to speak, and that undue emphasis may then be given to what they say, thereby creating a risk of wrongful conviction because of the fact that:

• Most suspects are not strong, intelligent and articulate. They are in a frightening situation; they may misunderstand the true significance of questions " [P]eople are commonly unable to sort out and state the factual aspects of their problems clearly even after time for studied reflection and discussions with friendly legal advisers. In a more hostile atmosphere they are prone to ramble, to tell foolish lies in an attempt to terminate questioning instead of saying truthfully `I don't remember', to contradict themselves, and to provide all kinds of evidence which to a later observer may constitute evidence of guilt.[58]

• there is no empirical evidence to suggest that the exercise of the right of silence results in high acquittal rates for serious crimes and lower prosecution and conviction rates;[59] and finally

• allowing inferences to be drawn from a failure to answer questions or offer explanations would be such a `departure from the whole tradition of British criminal justice' that the onus should be on those who wish to change the present position, and - in the Commission's view - the onus had not been discharged.[60]

The Commission also argued strongly that suspects should be fully informed of their rights, including the right to silence, commenting that:

It should not be necessary to argue that if a person has rights he should be made aware of them. Whether, once informed, he has the will, the wit or the wisdom to take advantage of them is probably something no criminal justice system can completely ensure. Perhaps it should not try. But no criminal justice system deserves respect if its wheels are turned by ignorance. Any system which pays lip-service to the existence of rights yet does nothing to ensure that they are known and understood - and indeed which may depend on their not being understood - is a system that discriminates against the weak, the unintelligent and the uncomprehending in favour of the strong-willed, the smart and the linguistically competent.[61]

5.2 1986: Report of teh Victorian Consultative Committee on Police Powers

In 1986, the Victorian Consultative Committee on Police Powers handed down its Report on Section 460 of the Crimes Act 1958. As its title indicates, the report was primarily concerned with the operation of s 460 of the Crimes Act 1958 (Vic), which was one of a number of statutory provisions regulating police powers of investigation and detention. The Committee thought, however, that the operation of s 460 could only be meaningfully evaluated when considered in the context of a number of other common law and statutory rules including the pre-trial right to silence. The Committee supported the retention of the pre-trial right to silence for the following reasons:

• If an inference of guilt could be drawn against an accused person on the ground that the person refused to answer questions put to him or her by police, then `in no real sense of the word "right" would there be a "right to silence". All that would remain is a prohibition against the use of force and the absence of any legal compulsion to make a statement to police. This right can only exist if no adverse consequence arises from choosing a course consistent with its exercise'.[62]

• It is not safe to draw an inference of guilt from a refusal to answer questions put by the police because there are so many reasons for such a refusal which are consistent with innocence. These include the following:

• The suspect may wish not to disclose conduct on his or another's part which, though non-criminal, is highly embarrassing. He may wish to remain silent to protect other people. He may believe that the police will distort whatever he says, so that the best policy is to say nothing and stick rigidly to that policy.[63]

• Allowing such an inference to be drawn would open a "Pandora's box" of issues for consideration at trial because the accused would have to `be given the opportunity to rebut the inference'. This `could result in a host of witnesses being called to give evidence on the accused's general background and behaviour including psychologists and psychiatrists to give expert evidence on the accused's psychological make up and the relevance of that to interrogation by the police'. The admission of such evidence could lead to the lengthening of trials, and the engendering of such sympathy towards the accused that the jury might dismiss the charges on irrelevant grounds.[64]

• Finally, the Committee took the view that `the right to silence renders it more likely that confessional evidence will be both reliable and voluntarily provided'.[65]

5.3 1985-87: The Australian Law Reform Commissions Reports on Evidence

In 1985 and 1987 respectively, the Australian Law Reform Commission handed down its Interim and Final Reports on Evidence (ALRC 26 and ALRC 38). These reports dealt with both pre-trial and at-trial silence. The recommendations contained in the report formed the basis for the 1995 Commonwealth and New South Wales Evidence Acts.

5.3.1 Pre-trial silence

In its Interim report, the Commission proposed that `it not be permissible to draw inferences from the silence of the suspect/accused in response to questioning by law enforcement agencies', but that the court should be permitted to draw `negative inferences from the failure of the accused to tell the police of an alibi or defence, later advanced at trial'.[66] In other words, the first of the uses described above under the heading `' would be prohibited, but the second use would be permitted.

This proposal was criticised on the grounds that it was inconsistent with the existence of the right to silence that adverse inferences could be drawn from its exercise. In light of these criticisms, and after discussing the reasons for retaining the right put forward by the Victorian Consultative Committee on Police Powers above, the Commission changed its position and recommended that no adverse inferences should be permitted to be drawn from the silence of the accused.[67] This aspect of the Commission's recommendations are consistent with the common law rules confirmed by the High Court in Petty v R (1991) 173 CLR 95.

In one respect, however, the Commission favoured a departure from the common law. It will be recalled that at common law, an inference of consciousness of guilt may sometimes be drawn from the fact that the accused selectively answered police questions: see Woon v R (1964) 109 CLR 529, discussed above under the heading `3.1.6.1 Selective answering'. The Commission took the view that allowing an inference of consciousness of guilt to be drawn from partial silence was `fundamentally unfair', `because to do so penalises an accused who may have been relying on his rights'.[68] Accordingly, the Commission proposals did not permit a consciousness of guilt inference to be drawn from the selective answering of questions by the accused.

Section 89 of the Commonwealth and New South Wales Evidence Acts of 1995 reflects these proposals. Section 89 provides that:

5.3.2 At-trial silence

The Commission accepted that the accused should not be a compellable witness; but recommended the maintenance of the common law position that the accused's failure to testify could be used when assessing the strength of the prosecution case, but not as independent evidence of guilt. This was essentially a compromise. The Commission pointed out that there are:

... strong arguments in favour of permitting a tribunal of fact to draw adverse inferences from the failure of an accused to give evidence. It is important to encourage, but not compel, an accused to give his side of the case. An admission made by him during the trial is likely to be reliable. Reasonable inferences should be available from silence. If accused persons can avoid giving evidence, and being subject to cross-examination, without any adverse consequences, then there is a risk that guilty persons would escape conviction.[69]

On the other hand, the Commission acknowledged that:

... there may well be reasons, other than guilt, why the accused would not choose to give evidence. He may not wish to disclose conduct on his or another's part which though non-criminal is highly embarrassing. He may wish to remain silent to protect other people. The accused may fear that he will be confronted with his prior convictions. The accused may have considerable communication difficulties. Persons accused of crime tend to be relatively uneducated, inarticulate, suspicious, frightened and suggestible. They may misunderstand the true significance of questions, tell foolish lies in order to terminate questioning, contradict themselves. Psychological studies suggest that any tribunal of fact is likely to react adversely to certain physical traits and mannerisms. While an accused will usually be legally represented, and protected by the judge from overly oppressive questioning, in many ways cross-examination corresponds to police interrogation. Particularly where the question involved is one of the mental elements of a crime, it would seem dangerous to expose a relatively simple accused to the hands of a skilful cross-examiner. The accused is faced with his moment of truth - how he handles himself is crucial to his fate. The atmosphere is intimidating. The judge and lawyers are dressed strangely. The judge peers down at him from the bench. He is isolated in the dock.[70]

Under the Commission's compromise, the tribunal of fact would be entitled to take the accused's failure to testify into account when assessing the other evidence in the case, but not to use it as evidence of guilt. This corresponds to the common law approach confirmed by the High Court in Weissensteiner v R (1993) 178 CLR 217. The Commission also recommended that the judge should be permitted to direct the jury about the manner in which they could use the accused's failure to testify. The Commission argued that prohibitions on judicial comment were unsatisfactory given the reality that `adverse inferences will be drawn by the tribunal of fact':[71]

Rather than making no comment and leaving the jury to draw what inferences they will, it seems preferable to permit a trial judge to instruct the jury as to inferences they may, and may not, draw from the accused person's silence.[72]

The precise content of the comment was discussed at some length by the Commission.[73] Comment by the prosecution, on the other hand, seemed to the Commission to be both unnecessary and dangerous, given the risk that the prosecution might `leave the jury with the impression that failure to give evidence constitutes some sort of admission of guilt'.[74] The Commission's proposals are reflected in s 20(2) of the Commonwealth and New South Wales Evidence Acts of 1995 which provide that:

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.

5.4 1990: The New South Wales Law Reform Commissions Report on Criminal Procedure

In 1990, the New South Wales Law Reform Commission handed down its report on Criminal Procedure: Police Powers of Detention and Investigation after Arrest (LRC 66). While the right of silence was not the primary focus of the report, the report did recommend the retention of the pre-trial right of silence for the following reasons:

• the lack of any `empirical evidence linking the right with increased acquittal rates or any other problem with the administration of criminal justice';[75] and

• the fact that the right is `an ancient common law right, based on democratic values and continually reaffirmed by the High Court of Australia', so that the proponents of change bear a heavy persuasive burden which they have not yet discharged.[76]

5.5 1992: The Australian Institute of Judicial Administrations Report on Managing Complex Criminal Trials

In 1991 the Australian Institute of Judicial Administration commissioned Professor Mark Aronson of the University of New South Wales Faculty of Law to write a report under the title Managing Complex Trials: Reform of the Rules of Evidence and Procedure. The report was completed in 1992. Professor Aronson suggested reforms in several areas of the law of evidence, including in relation to `Defence Disclosure and the Right to Silence'. The Report rejected any modification of the pre-trial right to silence, pointing to `two major stumbling blocks' to any changes which would allow adverse inferences to be drawn from the exercise of the right:

The added powers of persuasion [such changes] would give to the police would have to be conditioned upon the implementation of a system which ensured that the interrogations are conducted and structured fairly, recorded accurately, and take place only after the suspect has had time for reflection and access to genuinely independent legal advice. Even then, there is a second hurdle. At that particular stage in the life of a criminal matter, the nature of the allegations, and therefore of the questions put to the suspect, are likely to be fairly fluid. In a very real sense, therefore, the investigator will be "fishing". The threat of counting a suspect's non-cooperation against him or her then places them in the position of trying to prove a series of negatives. The privacy interests protected by the right of silence require, at the very least, protection from having to explain oneself, unless it is in response to reasonably detailed and finalised allegations of a complete offence.[77]

Instead of recommending changes to the right to silence, the Report proposed that duties of pre-trial disclosure should be placed on the defence. The model suggested for these reforms was the Victorian Crimes (Fraud) Bill 1992, a precursor to the Crimes (Criminal Trials) Act 1993 (Vic). This suggests that one of the issues to be considered by the Committee will be the question of whether the Crimes (Criminal Trials) Act 1993 (Vic) is already available as a solution to some of the problems for which the right to silence is commonly blamed.

5.6 1996: The Scrutiny of Acts and Regulations Committee of the Parliament of Victorias Report on Evidence

In 1995 the Committee received a reference requiring it to inquire, among other things, into the question of `whether the Evidence Act 1995 (Cwlth), as a model for uniform legislation, is appropriate for enactment in Victoria'. The Committee's primary recommendation was that the Evidence Act 1995 (Cwlth) should be adopted as a model for uniform legislation in Victoria.[78] As part of its detailed consideration of the Act the Committee had, of necessity, to give some consideration to the right of silence, and in particular, to the desirability of ss 20(2) and 89 of the Act, which are reproduced above under the heading `5.3 1985-87: The Australian Law Reform Commission's Reports on Evidence'.

5.6.1 Pre-trial silence

The Committee generally took the view that any modification of the right to silence fell outside its terms of reference. Accordingly, it recommended the adoption of s 89, given that it largely restates the common law position. The Committee did note, however, that s 89 appeared to change one aspect of the common law, namely that which allows an inference of consciousness of guilt to be drawn from the selective answering of questions by the accused: see Woon v R (1964) 109 CLR 529. The Committee expressed some reservations about this aspect of s 89, but in the end, in the interest of uniformity, recommended that s 89 should be enacted in Victoria in its present form.[79]

5.6.2 At-trial silence

The Committee also recommended the adoption of s 20(2) of the Evidence Act 1995 (Cwlth).[80] The adoption of s 20(2) would require the repeal of s 399(3) of the Crimes Act 1958 (Vic) which, as already noted, prohibits the making of any comment on an accused person's failure to testify. One of the reasons for the Committee's recommendation was the argument that in cases where the jury actually asks the judge about the failure to testify, an absolute prohibition on comment can - to use the words of one of the submissions - deny `the jury appropriate assistance'. The effect of the prohibition on comment is, thus, to create `situations in which a legitimate jury question cannot be answered and if answered will probably result in a successful appeal'.[81] The Committee therefore took the view that removal of the absolute prohibition on comment was appropriate.

The Committee also took the view that s 20(2) would only allow the jury to be directed in accordance with the High Court's decision in Weissensteiner v R (1993) 178 CLR 217, the effect of which was outlined in the discussion of the present law. The fairness of the comments permitted by Weissensteiner was disputed by several of the submissions. One submission pointed out that the Australian Law Reform Commission proposals on which s 20(2) was based had been made at a time when an accused person had a choice between giving sworn evidence, giving unsworn evidence, and giving no evidence at all. The submission argued that with the abolition of the right to give unsworn evidence, to `permit the adverse use of the accused's silence in this situation will lead to wrongful convictions'.[82] Another submission argued for the restoration of the right to give unsworn evidence. The Committee concluded its discussion of s 20 as follows:

The Committee spent a considerable amount of time discussing the merits of the various views set out above. The Committee noted that the right to give unsworn evidence is a matter of policy which has been recently addressed by the Parliament. The Committee therefore felt that it was inappropriate to consider its reintroduction. In the end, the Committee concluded that s 20 is a significant improvement on the current Victorian position. Accordingly, the Committee recommends that s 20 be adopted in its present form, and notes that if any problems in its operation do emerge these can be dealt with as part of the ongoing review of the legislation.[83]

In short, the Committee recommended the adoption of s 20(2) primarily on the basis that it represented an improvement on the present Victorian position.

5.7 Other Inquiries currently being undertaken

On 1 August 1997 the New South Wales Law Reform Commission received a reference requiring it to inquire into and report on the right to silence in New South Wales, including:

(i)	whether such a right should exist at all;
(ii)	if so, the nature of any inference that should be able to be drawn from the exercise of that right;
(iii)	the operation of s 20 of the Evidence Act 1995;
(iv)	whether there should be any mandatory pre-trial or pre-hearing disclosure of the nature of the defence and of the evidence in support of that defence;
(v)	if so, whether it should be possible to draw any inference from the failure to disclose such defence or evidence, or the manner of such mandatory disclosure, or from any change in the nature of the defence or in the evidence in support of it;
(vi)	the operation of the current mandatory defence disclosure provisions, including those in relation to alibi, and pursuant to the Evidence Act 1995;
(vii)	whether changes to the current position with regard to prosecution pre-trial disclosure are needed; and
(viii)	any related matter.

In its Discussion Paper, the Commission has recommended the retention of the pre-trial right to silence, an increase in the level of mandatory pre-trial defence disclosure, and the granting of permission to the prosecutor to comment on the accused's failure to testify.

The Law Reform Commission of Western Australia has also received a reference which encompasses the right to silence. This is a very broad reference, dated 22 September 1997, into the criminal and civil justice system, including `criminal discovery' and the `the rights of suspects and the powers of police'. The Commission is required to report by 30 November 1998.

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