Under the powers found in Section 4F(1)(a)(ii)
and Section 4F(3) of the Parliamentary Committees Act 1968 the
Governor in Council refers the following matters to the Scrutiny of Acts
and Regulations Committee--
The issue of right to silence encompasses
two categories--the right of a suspect not to answer questions before
trial (pre-trial silence) and the right of an accused not to give evidence
at trial (at-trial silence).
In 1994 the United Kingdom introduced the Criminal Justice
and Public Order Act which provides that the court may draw "whatever
inferences appear proper" if the accused fails to mention facts
later relied on in his defence when he or she is questioned by police
or charged. The court may also draw "whatever inferences appear
proper" where an accused refrains from testifying after the trial
judge has informed the accused in court that he or she can give evidence
and that if he or she does not testify the court can draw whatever inferences
appear proper.
Across Australian jurisdictions there are various approaches
to the issue of allowing comment where an accused person exercises his
or her right to silence. In all jurisdictions there is an absolute right
to silence at the police questioning stage of proceedings. In relation
to at-trial silence, Commonwealth and New South Wales legislation allows
the judge or any other party (other than the prosecutor) to comment
on the failure of the defendant to give evidence.
South Australia, Western Australia, the Australian Capital
Territory and Tasmania have legislation to the effect that the failure
of any person charged with an offence to give evidence shall not be
made the subject of any comment by the prosecution. The Northern Territory
and Victoria have legislation which forbids comment on an accused's
silence at trial by either the judge or prosecutor. Queensland's legislation
is silent on the matter of commenting where an accused is silent at
trial. Therefore comment can be made by a prosecutor as well as a judge
or any other party.
There is a perception that people who are innocent will
provide an explanation for their actions and that silence is used as
a shield by criminals. This must be viewed in the context of ensuring
that persons charged with offences receive a fair trial.
The Committee is requested to inquire into the issue of
the right to silence, examining issues including the appropriateness
of allowing comment, and the type of comment, that might be made where
an accused remains silent. The Committee is asked to consider the desirability
of introducing legislation equivalent or similar to the English scheme.
The Committee is requested to make its final report to
Parliament by the first day of the 1998 Spring Parliamentary sittings.
Dated: 11 November 1997
Responsible Minister:
JAN WADE
Attorney-General
CON CHARA
Acting Clerk of the Executive Council
Victorian Government Gazette
(G 45), Page 3149
13 November 1997