Scrutiny of Acts and Regulations Committee

The Right to Silence: An Examination of the Issues
Chapter 2 - The Origins of the Right to Silence

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The origins of the right to silence and the privilege against self-incrimination are not entirely clear.[1] They are also controversial because - to put it crudely - the more ancient the right and the privilege are, the stronger the case for their retention appears to be.[2] This present statement of the origins of the right and the privilege is essentially a simplified version of the most well-accepted version of their history. According to that version, the right and the privilege emerged together during the religious and constitutional struggles of seventeenth century England. In particular, the right and the privilege are commonly said to have originated in the abolition of the Court of Star Chamber and the Court of High Commission in Ecclesiastical Causes. These courts were highly unpopular, largely because they were used to suppress religious and political dissent. But their procedures were also seen as oppressive, with the judges of both courts having the power to interrogate an accused person on oath. This meant that an accused person could be compelled by threat of punishment to swear an oath to tell the truth, and could then be interrogated by the court in order to determine whether or not he or she had committed an offence. This exposed the accused to what the High Court has described as `the "cruel trilemma" of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment)'.[3]

Perhaps the most objectionable aspect of the procedure was that the accused could be interrogated on oath before any charges were laid, and without having even been informed of what it was that he or she was alleged to have done. Interrogation on oath could thus be used as a `fishing expedition', to try and produce evidence of some as yet undisclosed and unidentified criminality. The earliest objections to the Courts of Star Chamber and High Commission appear to have been related to this aspect of their procedures: that is, to the fact that the accused could be interrogated at large and without being informed of the specific allegations against him or her, rather than to the fact that the accused could be compelled to answer questions per se.

The Courts became extremely unpopular in the early part of the seventeenth century, and were abolished in 1641. The rejection of their procedures eventually resulted in the emergence of the general principle `that no man is bound to incriminate himself, on any charge (no matter how properly instituted), or in any Court (not merely in the ecclesiastical or Star Chamber tribunals)'; and this principle was extended during the Restoration to `include an ordinary witness, and not merely the party charged'.[4] Significantly, the principle had become one which applied even when the accused was fully informed of the allegations against him or her. From this point, however, the history of the pre-trial and at-trial rights to silence, and of the privilege against self-incrimination diverge. Our concern is only with the pre-trial and at-trial rights to silence.

2.1 At-Trial Silence

As far as at-trial silence is concerned, the practice of judicial questioning of accused persons did not really disappear until well into the eighteenth century. By the nineteenth century, however, the accused was not permitted to give evidence on oath, even if he or she wished to do so. The incompetence of the accused is said to have been in part a residue of the reaction against the Courts of Star Chamber and High Commission; that is, it was still regarded as unfair to allow the accused to be examined on oath.[5] The fact that the accused was not permitted to testify could, however, operate harshly on the accused, and so the courts developed a practice of permitting the accused to give unsworn evidence instead.

Major reform in this area occurred with the enactment of the English Criminal Evidence Act 1898. The Act, which was adopted in all Australian jurisdictions, made the accused a competent witness for the defence; that is, it allowed the accused to give sworn evidence on his or her behalf.[6] The accused was not, however, made a compellable witness; that is, the accused was permitted to testify, but could not be compelled to do so. The net effect of the Act, then, was that an accused person had three choices:

• to give sworn evidence, that is, evidence on oath and subject to cross-examination;

• to give unsworn evidence, that is, evidence which is not on oath and which is not subject to cross-examination, and which might therefore be regarded as being of less weight than the evidence of the other witnesses in the trial; or

• to remain silent, that is, to give no evidence at all.

The Committee notes that the second of these options has now been removed in all Australian jurisdictions apart from Norfolk Island. The 1898 Act also prohibited the prosecution from making any comment about an accused person's failure to testify; as we shall see, in the Victorian version of the Act, the prohibition on comment extended to the judge. As Easton comments, `It is clear from the wording of the Act that testifying by the defendant is seen as a right rather than a duty'.[7]

If one began one's history of the accused's at-trial right to silence in 1898, it might be seen as simply a by-product of the fact that the Act which made the accused a competent witness for the defence did not instead make him or her a compellable witness for the prosecution; viewed in this way, the at-trial right to silence appears to be of relatively recent origin. This is, however, a misleading way of looking at the right, because the 1898 Act must be understood in the context of the society in which it operated. If, for example, the Act had attempted to make the accused a compellable witness for the prosecution, then there can be no doubt that it would have been strenuously objected to on the grounds that it represented a revival of the oppressive procedures of the Star Chamber and High Commission. Viewed in this way, the accused's right to not testify at trial can indeed trace its lineage to the seventeenth century struggle against those courts.

The fact that the accused has a right to not testify does not, necessarily mean, however, that no adverse consequences will flow from the exercise of that right; indeed, as we shall see in the next section, the High Court has accepted that a failure to testify can, in certain circumstances, be used against the accused.

2.2 Pre-Trial Silence

The privilege against self-incrimination was originally claimed in response to judicial interrogation; with the establishment of a professional police force, however, the interrogation of suspects was no longer solely the province of the courts. Although the process took some time, it eventually came to be accepted that the privilege against self-incrimination should also operate in this new pre-trial context of criminal investigation. This process was also no doubt a manifestation of the extreme suspicion with which confessions made by the accused to the police were regarded.[8]

In any case, the right of a suspect to refuse to answer official questions had become clearly accepted by 1912. That was the year in which the Judges of the King's Bench Division formulated a set of Rules designed to provide guidelines for police interrogation of suspects. Although the `Judges' Rules' never had the force of law, they have always been regarded as `a yardstick against which issues of unfairness (and impropriety) may be measured'.[9] The Judges' Rules recognised the right of the police to question suspects, but also required the police to caution a suspect before questioning commenced by informing him or her that he or she did not have to say anything, but that anything he or she did say might be used in evidence. In other words, the Judges' Rules imposed a duty on the police to inform suspects of their pre-trial right to silence. The Judges' Rules have their equivalents in modern day police regulations and standing orders, and also provide the basis for much of the current statutory framework regulating the investigation of crime.

The pre-trial operation of the privilege against self-incrimination was further buttressed by the decision in Ibrahim v R [1914] AC 599 that an admission or confession made by the accused to the police would only be admissible in evidence if the prosecution could establish that it had been voluntarily. An admission or confession is only voluntary if it was made in the exercise of a free choice about whether to speak or remain silent: see McDermott v R (1948) 76 CLR 501 and R v Lee (1950) 82 CLR 133. Through the requirement of voluntariness the courts could therefore attempt to ensure that a suspect could not be coerced or induced to waive their pre-trial right to silence.

Although the right of a suspect to refuse to answer questions has never been doubted since, there has been disagreement and confusion over the consequences of the accused exercising that right. Indeed, it was not until the decision of the High Court in Petty v R (1991) 173 CLR 95 that the law in Australia could be regarded as settled. That case established that no adverse inferences, of any sort, could be drawn from the accused's refusal to answer questions. The precise scope of this decision will be explored in the next section.

Scrutiny of Acts and Regulations Committee
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