The Right to Silence

Victoria should adopt reforms enacted in England which allow the jury to draw a strong adverse inference from a suspect’s exercise of the right to silence when questioned by police and permit the trial judge to direct the jury accordingly. ’ Critically discuss. The right to silence is a fundamental right that should not be curtailed in Victoria. The right itself consists of a collection of a complex set of rights, which involve a variety of procedural rules, seen as stemming from the protection against self-incrimination.

The right operates in two different circumstances, as both a primary and secondary right, in that it protects an accused when being interviewed by police and also incidentally when at trial. Reforms that allow the jury to draw a strong adverse inference from a suspect’s exercise of the right to silence when questioned by police and permit the trial judge to direct the jury accordingly, should not follow the lead of England, due to the significant differences in the rights and protections established in the legal systems.

The right to silence has been a controversial one for sometime and in England and Wales under the Criminal Justice and Public Order Act 1994 the right has been inhibited. The issue is particularly prevalent in Australia currently, with New South Wales in the process of passing legislation to end or at least reduce the right to silence. To weigh the argument on reform in Victoria, firstly it is important to examine the history of the right and its significance in our legal system today. A comparison then must be drawn between Victoria and England, in the way in which the right to silence operates within the differing legal regimes.

Finally to conclude, the arguments both for and against such reforms must be analysed. The phrase ‘right to silence’ is in fact a network of concepts and practices, which operate under the general principal ‘that, in the absence of some contrary rule of common law or legislation, all citizens are free to remain silent and to decline to provide the authorities with information. ’ The rights are best defined by the House of Lords in R v Director of Serious Fraud Office; ex parte Smith. It is a notion based on the protection against self-incrimination and the presumption of innocence.

This right is more than a privilege and is founded on the human right rationale of maintaining a fair trial, which plays an integral part in Australia’s legal system. The creation of the right to silence can be seen as a result from the practices witnessed in the Star Chamber and High Commission dating back to the sixteenth century. Although Australia has no express constitutional protection for the right to silence, it has been principally preserved by statute and is largely considered by the courts as an important common law right.

The right to silence has evolved from its common law inception to also include police questioning, as stated in Petty v The Queen and is expressed in Victoria by virtue of section 89 of the VIC Evidence Act 1995. From this section we can see that the right to silence is both a pre-trial right, which includes the right to remain silent during official questioning and extends to a right at trial, where in criminal proceedings ‘unfavorable inferences’ cannot be drawn from the exercise of the pre-trial right. Section 89 of the Act also establishes that silence includes both selective and complete silence.

There are some exceptions to the general right which are, most notably, the right does not apply to corporations which was established in Environmental Protection Authority v Caltex Refining Company Pty Ltd and in cases which rely wholly on circumstantial evidence, as seen in Weissenstiner v The Queen. In England and Wales the right to silence was first codified in the Judges’ Rules, 1912. Arguably, with the inception of the subsequent Criminal Evidence Act 1984 the rights of defendants were significantly increased.

By virtue of the Act a criminal suspect did not have to give evidence in a proceeding and also had no duty to answer official questioning, the right also deemed that no adverse inferences were to be accounted to such a use of silence. On comparison, we can see that the right to silence in England was once identical in operation to current Victorian law. However, after much debate and with the criticisms of the expanding defendant’s rights, came the introduction of the Criminal Justice and Public Order Act 1994 where the right to silence, both pre-trial and post-trial was curtailed.

Under section 35 of this legislation it permits that a tribunal of a criminal matter can draw strong adverse inferences from a defendant’s refusal to answer questions or give evidence at trial. Such adverse inferences can be used to establish an inference of guilt where the evidence calls for an explanation whereby the defendant ought clearly be able to provide one. The English Court of Appeal has qualified this provision to only exclude such an adverse inference in exceptional circumstances on an evidentiary basis or when the accused is under the age of fourteen.

The Act also permits inferences of guilt by the exercising of the right during police questioning, whereby the defendant fails to mention any fact, which he or she later relies on by the way of a defence. Similarly, it encompasses failures for the defendant to account for their whereabouts at a particular time the crime was committed, any marks found on the suspect or finally anything unaccounted for found in their possession. The only unrestrained right to silence preserved under this legislation is the right not to testify at trial, by virtue of section 35(4).

The central question at the heart of the debate on reform, is whether the right protects the guilty or the innocent? In other words, would following the lead of England and Wales result in more proper convictions of guilt or could it consequently lead to an increase in wrongful convictions? Although there are valid arguments, both for and against reforms to restrict the right of silence, the greatest issue faced when tackling the central question is that of empirical evidence.

The first problem is definitional in nature; ‘silence’ itself is difficult to define. Should we adopt a general view of silence, where any silence during questioning, whether relevant or not and whether answered later or not constitutes a silence? Or should we restrict the definition to only include complete silence or silence on relevant facts or issues to the case? A further issue with evidence in a methodological way is the reliability of the data and the potential for bias.

Furthermore, there are few Australian studies on the right to silence and thus we are heavily reliant on studies conducted in the United Kingdom, which in itself raises significant concerns on how such data correlates to Australian law and criminal case outcomes. Steven Greer first categorised arguments that favour the restricting of the right to silence as either ‘utilitarian abolishment’ or ‘exchange abolitionism’. The latter category is more likely to be supported in modern debate, which is based around removing the right to silence, but safeguarding notions of a fair trial by protecting the rights of the accused.

It is important to note that such protections have been established in England, whereby there is a right to legal advise for defendants, both pre-trial and representation at trial, which is not a right protected in Victoria. The issue of access to legal advise and representation in Australia is in itself a heated topic of debate on the notion of a ‘fair trial’. Without Victoria first considering such protections and procedures to ensure the rights of the defendant are protected, reforms such as England’s on the right to silence should not be followed.

Other arguments supporting the curtailing of the right are based on the conception that the rights of an accused outweigh that of the prosecution and thus there is a need to counterbalance this. Their central claim is that it is professional criminals that are most likely to use the right in order to avoid justice and that silence draws an inference of guilt, as if an allegation is made on an innocent person it would only be natural to defend oneself. However, this argument lacks substance and it also completely ignores legitimate reasons for protecting oneself from accidently giving misleading evidence or the lack of ability to answer.

Such a reason to utilise the right to silence may be because of age, intellect, disability or mere fear. It is common sense to think that one may be more likely to use the right if they are represented or based on the seriousness of the crime, for the simple fact that they are under stress when being questioned, they can be shocked by allegations and they do not have time to think clearly and provide a clear and truthful answer to the questions put before them. In relation to substance, the data we have to assess who uses the right and for what purpose has been clearly divergent.

Even though there may be said to be some correlation between the severity of the crime or whether the criminal has in fact committed other offences and the use of the right to remain silent, it is far from conclusive on determining that it is only criminals that engage the right and that they do so in an effort to avoid justice. Such arguments also must be suggesting that a criminal whom uses silence excessively or strategically must be gaining an advantage in the outcome of their case. However, from the evaluation of the evidence we have in two eading publications by Michael Zander and David Brown, such a conclusion cannot be made. In fact, some of their key findings were completely contrary to this line of reasoning. Both Brown and Zander’s overall findings discovered that those who are more likely to use the right are more likely to be charged and those pleading not guilty that have employed the right of silence are less likely to be acquitted than other defendants. One final key argument for the removal of the right to silence is because of the ambush defence.

It is argued that the accused has an unfair advantage over the accuser, as they are not required to give notice to the police or prosecution. However, again in the cases evaluated in the before mentioned studies and in Leng’s assessment of such reports, this basis is also largely unfounded. On weighting these arguments and with the severe lack of empirical evidence to support claims for reform, it is my opinion that the right to silence should remain unchanged in Victoria.

The controversial move by New South Wales government to restrict the right of silence is one that undermines the foundation of the presumption of innocence and places the defendants in an inequitable position. The significant differences between the legal regimes make it necessary to avoid following the lead of our English counterparts. If Victoria are to look at restricting the right to silence, it must first be established that the accused are protected from the imbalance of the parties, by including safeguards similar to those that exist in England.

Such protections must be substantial and be available, both at official questioning and at trial. Furthermore, investment into significant research to clearly gauge the potential effects of such proposed reforms, based on Australian case data, must be conducted. Just because the reforms may work in England and Wales, does not mean a one size fits all approach and the evaluation on the right to silence must be considered based on our common law principals, protections and procedures in law.

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