Scrutiny of Acts and Regulations Committee
The Right to Silence: An Examination
of the Issues
Chapter 1 - Introduction
1.1 Focus of the Inquiry
The Committee's Terms of Reference refer to the following
aspects of the right to silence:
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the right of a suspect to refuse to answer questions
put to him or her by criminal investigators; and
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the right of an accused person to choose whether or
not to testify at his or her trial; and
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the consequences for the accused of exercising either
or both of these rights; in particular, the question of whether any
adverse inferences can be drawn from, or adverse comments made about,
the exercise of the right to refuse to answer questions and/or the
right to not testify.
Although all of these aspects are often grouped together
under the title of the `right to silence' (or sometimes `right of
silence'), it is important to give separate consideration to each of the
various aspects of the right. As Lord Mustill commented in R v Director
of the Serious Fraud Office; Ex parte Smith [1993] 1 AC 1, 31:
Each of these immunities is of great importance, but the
fact that they are all important and that they are all concerned with
the protection of citizens against the abuse of powers by those investigating
crimes makes it easy to assume that they are all different ways of expressing
the same principle, whereas in fact they are not. In particular, it
is necessary to keep distinct the motives which have caused them to
become embedded in English law; otherwise objections to the curtailment
of one immunity may draw a spurious reinforcement from association with
other, and different, immunities commonly grouped under the title of
a `right to silence'.
For this reason, the Committee has been careful in this
Issues Paper to distinguish between the right to refuse to answer questions
and the consequences of such a refusal (the `pre-trial right to silence'),
on the one hand; and the right to not testify and the consequences of
not testifying (the `at-trial right to silence'), on the other.
The view the Committee has taken of its Terms of Reference
are that they actually only require the Committee to consider the consequences
of exercising the pre-trial and at-trial rights to silence, and not the
rights themselves. It is important that this be clearly understood: the
Committee's inquiry is not concerned with the abolition of these
rights in the sense that the Committee might recommend either that it
be made an offence for a suspect to refuse to answer questions put by
the police, or that an accused person be compelled to give evidence at
his or her trial. A suspect will continue to have a choice about whether
or not they answer police questions, and the accused will continue to
have a choice about whether or not to testify. The focus of the inquiry
is instead on the consequences of the accused exercising either of these
rights; and in particular, on the question of whether it should be possible
for a court to draw adverse inferences from (or make adverse comments
about) the accused's refusal to answer police questions or failure to
testify.
1.2 Future conduct of Inquiry
In June, members of the Committee will pursue the inquiry
by travelling to the United Kingdom and the Republic of Ireland, in order
to gain first-hand information about the operation of their respective
legislative schemes.
On its return, and after receipt of submissions, the Committee
will hold public hearings. The dates for these hearings will be publicly
advertised, while those making written submissions will be informed by
mail. The Committee preference is that those proposing to give evidence
at a hearing should first provide a written outline of the evidence they
intend to give.
The Committee will attempt to complete its deliberations
by the end of August, so as to enable the tabling of its recommendations
in the 1998 Spring Session of Parliament.
1.3 Structure of this Issues Paper
In approaching these Terms of Reference the Committee has
decided that it would be helpful to release this Issues Paper. The Issues
Paper can be approached in either of two ways. The quickest way is to
read this first part of the Paper and to then go straight to the concluding
part, which sets out the issues which the Committee believes it will be
necessary to consider in formulating its recommendations. These are the
only truly essential parts of the Paper.
The five parts in between (comprising the second to the
sixth parts of the Paper as a whole) are intended to provide background
information for those wishing to make submissions to the Committee. Each
deals with a distinct area relevant to the inquiry, and readers should
feel free to read as many or as few of these parts as they find informative.
Their subject areas are as follows:
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The second part of the Issues Paper deals with the origins
of the right to silence. This is included because of the fact that
arguments about the right to silence are often couched in historical
terms.
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The third part of the Issues Paper contains a statement
of the right to silence as it currently applies in Victoria. Before
any changes to the present rules can be considered, it is obviously
essential that the operation of those rules be understood.
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The fourth part of the Issues Paper contains brief statements
of the law relating to the right to silence as it applies in several
other common law jurisdictions. It is obviously intended to allow
comparisons to be made between the position in Victoria and elsewhere.
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The fifth part of the Issues Paper contains an overview
of other inquiries which have been conducted into the right to silence
in Australia. The purpose of this part is twofold: first, to set the
present inquiry in the context of those inquiries which have preceded
it; and secondly, to survey the reasons for changing the right to
silence or for retaining it in its present form which other inquiries
have found to be persuasive or compelling.
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The sixth part of the Issues Paper examines the position
in the United Kingdom. The Committee's terms of reference clearly
require it to consider the desirability of introducing legislation
similar to that which now applies in England, Wales and Northern Ireland.
This part also contains an overview of the various English inquiries
into the right to silence which preceded the current legislative scheme.
The purpose of this is again twofold: first, to set the current scheme
in its proper context; and secondly, to survey the reasons for changing
the right to silence or for retaining it in its present form which
have been found to be persuasive or compelling by those who have examined
the right to silence in the past.
Scrutiny
of Acts and Regulations Committee
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