Scrutiny of Acts and Regulations Committee
The Right to Silence: An Examination
of the Issues
Chapter 7 - The Issues
This section of the Issues Paper sets out the issues which
the Committee believes it will be necessary to consider in formulating
its recommendations. These issues have been drawn from the previous sections
of the paper, which detailed the arguments which have been constantly
relied on by those who have argued for either the retention of the right
to silence in its present form, or for changes to that right. It may be
that satisfactory answers are not available for all of the issues raised;
nevertheless, it is at least important to consider them.
7.1 Pre-Trial Silence
It seems to the Committee that the more complex and difficult
issues arise in relation to the consequences of exercising the pre-trial
right to silence, and that consideration of these issues will necessarily
consume more of the Committee's time than consideration of the issues
associated with at-trial silence.
7.1.1 Is the exercise of the right to silence 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. If it is not relevant, then clearly there
is no need for any changes to the law. Equally, if silence is relevant,
then it should be admissible as evidence of guilt unless there are clearly
identifiable policy reasons for exclusion. In deciding whether silence
can be relevant, the Committee believes that it is necessary to consider
the following issues:
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How safe is it to draw an inference of guilt from a
suspect's exercise of their right of silence? The Committee's Terms
of Reference refer to `a perception that people who are innocent will
provide an explanation for their actions and that silence is used
as a shield by criminals'. How accurate is this perception? To the
extent that it can be measured, to what degree does exercise of the
right to silence correlate with guilt? What factors other than guilt
might cause a suspect to exercise their right to silence?
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What is the significance of the fact that there are
innocent explanations for silence as well as guilty ones? Does it
mean that silence should be regarded as irrelevant, or as too equivocal
to be safely relied on? Or does it merely confirm that silence, like
any item of circumstantial evidence, will be susceptible of innocent
explanation, and that it is for the tribunal of fact to decide which
explanation - the innocent or the guilty - to accept?
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In what ways should silence be regarded as relevant?
Should it be regarded as evidence from which guilt can be inferred,
on the basis that innocent persons answer police questions? Or should
it only be accepted as relevant to the credibility of a late defence?
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What directions, if any, should a trial judge be required
to give to a jury in respect of pre-trial silence?
7.1.2 Does the right to silence serve any useful
purpose?
It has often been argued that the right to silence has been
rendered redundant by the fact that police investigations are now required
to conform to legislative and judicial standards designed to protect suspects
from unfair methods of investigation and to ensure the reliability of
evidence gathered by the police. In Victoria, for example:
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a suspect can only be detained for a reasonable time;
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a suspect has a right to communicate with a friend or
relative to inform them of their whereabouts;
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a suspect has a right to communicate with a legal practitioner
for the purposes of receiving legal advice; and
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a confession or admission made by a person charged with
an indictable offence is generally admissible only if the confession
or admission has been tape-recorded.
Given these protections, the questions arises as to whether
the accused's present immunity from any adverse consequences of refusing
to answer police questions still has a useful purpose to serve.
7.1.3 Does the right to silence create problems?
The case for making changes to the right to silence is obviously
strengthened by claims that the right to silence creates problems for
the criminal justice system. Accordingly, the Committee believes that
it is necessary to consider the extent to which the following kinds of
claim are justified:
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That the right to silence is `abused' by `hardened'
or `professional' criminals. Assessment of this claim requires consideration
of what it would mean to say that the exercise of a right constituted
an `abuse' of that right; and of the extent to which previous involvement
in the criminal justice system is an indicator of the likelihood that
a suspect will exercise their right to silence.
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That the right to silence hampers police investigations.
Assessment of this claim requires consideration of the incidence of
the exercise of the right to silence, and the extent to which the
exercise of the right decreases the chances of charges being laid.
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That the right to silence can create difficulties for
the prosecution at trial, in particular through the difficulty of
confronting an `ambush' defence. Apart from an increased likelihood
of unjustified acquittal, this problem might also manifest in the
lengthening of trials with the prosecution being obliged to lead evidence
to counter the full gamut of defences which could conceivably be relied
upon.
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That the right to silence leads to an excessively high
rate of unjustified acquittals. Assessment of this claim again requires
consideration of the extent to which the exercise of the right to
silence increases the likelihood of acquittal.
7.1.4 Are there other methods of dealing with these
problems?
It may be that the problems for which the right to silence
is blamed can actually be solved without making changes to the right to
silence. If so, it may be possible to retain the right to silence in its
present form. The problem of the `ambush' alibi defence, for example,
has been eliminated by 399A of the Crimes Act 1958 (Vic) which
requires pre-trial disclosure of the particulars of an alibi defence;
perhaps the problem of ambush defences in general could be eliminated
by the enforcement in all cases of the provisions of the Crimes (Criminal
Trials) Act 1993 (Vic). There may be similar solutions to others of
the problems arguably caused by the right to silence.
7.1.5 Would changing the right to silence have any
undesirable effects?
In deciding whether to recommend making any changes to the
right to silence the Committee must also clearly consider whether such
changes would have any undesirable effects; to consider, in other words,
whether the problems the changes create might be worse than the problems
they solve. In particular, the Committee believes that it is necessary
to consider the following potential problems:
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Whether any changes to the right to silence might create
a lack of clarity in the law, or lead to laws which are difficult
to apply. If the law is no longer clear this could create difficulties
for suspects in deciding whether or not to answer police questions;
lawyers in deciding how to advise their clients; and police officers
engaged in the interrogation of suspects. It is also conceivable that
the law might be difficult for juries to apply.
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Whether any changes to the right to silence might lead
to the disadvantage of any particular groups of persons. Such disadvantage
might arise from a difficulty in understanding how the law operated,
and a consequent difficulty in deciding whether or not it is still
in a person's best interests to exercise their right to silence. Groups
in respect of whom such concerns might arise include all of those
listed under the heading `' on page of the Issues Paper.
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Whether allowing adverse inferences to be drawn from
the fact that the accused exercised their right of silence would open
the "Pandora's box" of issues referred to by the Victorian
Consultative Committee on Police Powers, thereby lengthening trials
and diverting the attention of the tribunal of fact away from the
details of the alleged offence and towards the arguably peripheral
issue of the accused's response to police questioning.
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Whether allowing adverse inferences to be drawn from
the exercise of the right to silence would create an unacceptable
risk of miscarriage of justice, by placing pressure on suspects to
talk and thereby potentially reducing the reliability of any admissions
that a suspect might make.
7.1.6 Would changing the right to silence be inconsistent
with fundamental principles or community standards of fairness?
Finally, the Committee must consider whether allowing adverse
inferences to be drawn from the exercise of the right to silence would
be so inconsistent with fundamental principles or community standards
of fairness that the right to silence should be retained in its present
form. In particular, the Committee must consider:
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Whether the drawing of adverse inferences from a person's
exercise of their right to silence would be inconsistent with the
accusatorial system of criminal justice developed by the common law.
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Whether the drawing of adverse inferences from a person's
exercise of their right to silence would be inconsistent with the
fact that the burden of proof in criminal proceedings is on the prosecution,
and that the accused is presumed innocent until that burden of proof
has been discharged.
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Whether the drawing of adverse inferences from a person's
exercise of their right to silence would be inconsistent with commonly-held
notions of what constitute fair methods of criminal investigation.
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Whether it is fair 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.
7.1.7 Does the Criminal Justice and Public Order
Act 1994 (UK) provide an appropriate model for reform?
If, in light of all the considerations identified above,
the Committee decides to recommend that the consequences of exercising
the right to silence should be changed, the question then arises as to
the form which any such changes should take. In particular, given the
Committee's Terms of Reference, the primary question is whether the provisions
of the Criminal Justice and Public Order Act 1994 (UK) provide
an appropriate model for reform. In deciding this the Committee will need
to consider whether the provisions are fair and workable, and whether
there are any differences between conditions in Victoria and in the United
Kingdom which would make the provisions unsuitable for enactment in Victoria,
either in their present form or at all.
7.2 At-Trial Silence
The issues in relation to at-trial silence appear to the
Committee to be less in number and more easily resolved.
7.2.1 Is an accused persons failure to testify evidentially
significant?
As with pre-trial silence, the starting point for any argument
that the tribunal of fact should be permitted to use an accused's failure
to testify as the foundation for an adverse inference must be a belief
that a failure to testify has some evidential significance. The Committee
will therefore address the following issues:
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As noted, the Committee's Terms of Reference refer to
`a perception that people who are innocent will provide an explanation
for their actions and that silence is used as a shield by criminals'.
How accurate is this perception? To the extent that it can be measured,
to what degree does failure to testify correlate with guilt? What
factors other than guilt might cause an accused to not testify?
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What is the significance of the fact that there are
innocent explanations for failure to testify as well as guilty ones?
Does it make it unsafe to draw to an adverse inference from an accused
person's failure to testify?
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In what ways should failure to testify be regarded as
evidentially significant? Should it be regarded as evidence from which
guilt can be inferred, on the basis that innocent persons testify?
Or should it only be accepted as significant for the purpose endorsed
by the High Court in Weissensteiner v R (1993)?
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Are there any conditions which must be satisfied before
failure to testify can be regarded as evidentially significant, as
suggested by the majority of the High Court in Weissensteiner v
R (1993)? Or should it be considered evidentially significant
in every case?
7.2.2 Would it be unfair to allow failure to testify
to be used against the accused?
Even if failure to testify is evidentially significant,
it may still be unfair to permit its use. In particular, the Committee
will consider the following issues:
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Would drawing an adverse inference from failure to testify
be inconsistent with the fact that the burden of proof in criminal
proceedings is on the prosecution?
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On the other hand, notwithstanding the fact that the
burden of proof is on the prosecution, is it reasonable to insist
that if there is a case to answer it must eventually be answered?
And that if it is not answered, the tribunal of fact may be entitled
to find that the prosecution case has gone from answerable to proven?
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Does the fact that the accused no longer has a right
to give unsworn evidence have any implications for the fairness of
allowing adverse inferences to be drawn from failure to testify?
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If it is considered unfair to draw adverse inferences
from pre-trial silence, is there a basis for distinguishing between
pre-trial and at-trial silence? For example, is it relevant that the
at-trial right of silence fails to be exercised at a point in time
when the prosecution case is known in its entirety, and in circumstances
free from any potential taint of coercion or impropriety?
7.2.3 Is it possible to prevent the tribunal of
fact from making use of the accuseds failure to testify?
Even if it is considered unfair to permit the adverse use
of the accused's failure to testify, would it be possible to prevent it?
Or is the fact that the accused failed to testify a fact which a jury
would inevitably take into account in assessing the evidence, even if
the judge directed them not to? In other words, is a ban on the adverse
use of failure to testify practicable?
7.2.4 Does the current Victorian prohibition on
comment serve any useful purpose?
In Weissensteiner v R (1993), the High Court held
that the accused's failure to testify could, in certain circumstances
and for certain purposes, be relied on by the tribunal of fact in determining
whether or not guilt had been proven beyond reasonable doubt. The High
Court also indicated that this was so even in those jurisdictions such
as Victoria where there was a prohibition on judicial comment on the accused's
failure to testify. Given this, does the prohibition on judicial comment
serve any useful purpose? Would it actually make more sense either to
overrule Weissensteiner and require the judge to direct the jury
that they must not rely on the accused's failure to testify in any way
whatsoever; or to remove the prohibition on comment and so allow the judge
to direct the jury in accordance with Weissensteiner, thereby ensuring
that the jury only used the accused's failure to testify in the circumstances
and for the purposes which the law permits?
7.2.5 If reform is considered desirable, what form
should it take?
If reform is considered desirable, what model for reform
should be adopted:
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the simple repeal of s 399(3) of the Crimes Act
1958 (Vic);
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the removal from s 399(3) of the Crimes Act 1958
(Vic) of the reference to the `presiding judge';
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the enactment of a provision based on s 20(2) of the
Evidence Act 1995 (Cwlth);
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the enactment of a provision based on s 35 of the Criminal
Justice and Public Order Act 1994 (UK); or
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an alternative to the above.
In determining which model for reform is the most appropriate,
it will also be necessary to consider whether the prosecutor should be
permitted to comment on the accused's failure to testify, or whether comment
should instead be confined to the trial judge and a co-accused.
Scrutiny
of Acts and Regulations Committee
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