CA-3 (Assignment)

Comparative Criminal Law

Submitted by- Pooja Meena (1124)

X Semester

EXACT POSITION OF RIGHT TO REMAIN SILENT IN AUSTRALIA

The right to remain silent is a fundamental right for all people when being questioned by police.
It stems from the basic common law principle that it is the state’s role to prove the guilt of
an accused person, not the accused’s. Additionally, no negative conclusion can be drawn from an
accused relying on their right to silence when the matter goes before the courts.

From the late nineteenth century, the courts had recognized the right of an accused to remain
silent at trial, and judges had instructed jurors that no adverse inference can be drawn by virtue
of that silence. However, this was changed with the landmark decision of the high Court in 1993
in Weissensteiner v The Queen1, where it was held that juries are allowed to draw adverse
inferences if there is possibility of having unexplained facts ‘peculiarly within the knowledge of
the accused.’2 In that case, five Justices3 quoted with approval the following passage from the
judgment of Windeyer J in Bridge v The Queen4:

"An accused person is never required to prove his innocence: his silence can never displace the
onus that is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an
explanation does not of itself prove anything. Nor does it, in any strict sense, corroborate other
evidence. But the failure of an accused person to contradict on oath evidence that to his
knowledge must be true or untrue can logically be regarded as increasing the probability that it
is true. That is to say a failure to deny or explain may make evidence more convincing, but it

1
[1993] HCA 65
2
Id.
3
Mason CJ, Deane and Dawson JJ at 227; Brennan and Toohey JJ at 235.
4
[1964] HCA 73
does not supply its deficiencies. A direction by the judge on such matters ... might no doubt be
helpful to the accused in some cases."

But this position was dissipated with the High Court decision in Azzopardi v. The Queen5.It
reversed Weissensteiner because they recognized an absolute right to silence, and limited adverse
inferences only to those cases that are ‘rare and exceptional.’6

However a person must answer questions related to their name and place of residence if asked to
by police.7 A fundamental rule of the common law that a person suspected of having been a party
to an offence is entitled to remain silent when questioned or asked to supply information by any
person in authority about the occurrence of an offence. Incident of that right of silence is that no
adverse inference can be drawn against an accused person by reason of his or her failure to
answer such questions or to provide such information. To draw such an adverse inference would
be to erode the right of silence or to render it valueless.8

Therefore, as a general rule judges cannot direct juries to draw adverse inferences from a
defendant's silence but there are exceptions to this rule, most notably in cases which rely entirely
on circumstantial evidence where it is possible for the defendant to testify about matters
peculiarly within the defendant’s knowledge.9 This exception has been abolished in Victoria by
sections 42 and 44 of the Jury Directions Act 2015. In EPA v Caltex10, however, the Court held
that the focus of the privilege is to prevent abuses of personal freedoms and individual human
rights, and therefore, that the privilege has no application to corporate entities.

Within Australia, the right to silence derives from common law. The basic position amongst the
states is that neither the judge nor the jury is permitted to draw any adverse inference about the
defendant's culpability, where he/she does not answer police questions.11 While this is the

5
[2001] HCA 25
6
Id.
7
Petty v. The Queen [1991] HCA 34
8
Id.
9
Supra Note 3.
10
(1993) 178 CLR 477
11
RPS v R (2000) 199 CLR 620 ... overturning Jones v Dunkel [1959] 101 CLR 298
common law position, it is buttressed by various legislative provisions within the states. For
instance s.464 J12 of the Crimes Act 1958 (Vic) and s.89 of the Evidence Act 1995 (NSW).

The Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act
1995 (NSW) by adding a new section 89A. However, s.89A of the Evidence Act (NSW) operates
to allow adverse inferences to be drawn from a failure to mention, when questioned, something
which the subject later relies upon in Court and which he/she ought reasonably have been aware
of at the time of questioning. This inference can only be drawn if the subject has been given the
special caution, which is a caution in addition to the usual caution and the subject consults with
an Australian Legal practitioner in persona so as to fully understand the effect of the special
caution. 13

In NSW, a subject has the right to a lawyer being present in a police interrogation but they do not
have the right to have a lawyer provided for them, therefore a lawyer will only attend if the
subject can afford private legal counsel. Therefore, the subject can prevent the invocation of
s89A by receiving legal advice over the phone or choosing not to have a lawyer present
(assuming they can afford one). It has also been upheld by the High Court in the case of Petty v
R14. However, where a defendant answers some police questions, but not others, an inference
may sometimes be drawn about the questions he refused to answer.15

Where a defendant refuses to speak to the police, but then speaks to an undercover member of
the police, the court is likely to exclude that evidence to ensure that the police do not avoid their

12
S. 464J- Right to remain silent etc. not affected
Nothing in this subdivision affects—
(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in
investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person
suspected of having committed an offence; or
(ba) the onus on the prosecution to prove that an admission or confession was made in such circumstances as to
make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence.
13
Philip Stern & Catherine Nguyen ,Section 89A Evidence Act 1995 (NSW) and Examinations by Commonwealth
Agencies, ADISONS (5 November 2013)
14
(1991) 173 CLR 95
15
Saif Al-Rawahi,The Impact of the Silence Provisions of the CJPOA 1994 on Practicing the Right to Silence by
Suspects in Police Stations and Courts, IOSR Journal Of Humanities And Social Science, Volume 21, Issue12, Ver.
7 (December. 2016) PP 59-68
limitations. However, if a defendant speaks to a person who is not a member of the police, and
who is fitted with a listening device, that evidence would be admitted.16

A number of states have conducted enquiries into the adoption of the English changes set out in
the Criminal Justice and Public Order Act 1994.17 All states have rejected such change. As the
NSW Report said:

It is reasonable that innocent persons faced with a serious accusation might wish to consider
their situations carefully before making any disclosure, especially where the circumstances
appear suspicious but it cannot be assumed that they are rational and articulate. In many cases,
suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced,
confused or frightened or a combination of these. They may be unable to do themselves justice.
Such persons may be well advised to hold their peace, at least at an early stage. They may, of
course, have something to hide, but that something may simply be shameful and not a crime, or it
may implicate others for whom they feel responsible. The supposition that only a guilty person
has a reason for not speaking freely to investigating police is an unreasonable assumption.

It is also important to note that anything said to an Australian police member should be
corroborated, especially by way of video or audio tape. If it is not so corroborated it will be
admitted only under exceptional circumstances, S.464H (2)(a) of the Crimes Act 1958 (Vic), and
where the circumstances, on the balance of probabilities, justify the reception of the evidence,
S.464H (2)(b) of the Crimes Act 1958 (Vic). While initially the police were insulted by this
ruling most have now come to find it useful as a way of proving that they did not invent a false,
verbal confession, never made by an accused (a practice called "verballing" an accused).

NEW SOUTH WALES

The state of New South Wales passed the Evidence Amendment (Evidence of Silence) Act
201318 which allows the judiciary to direct the jury to draw unfavourable inferences against a
defendant who failed or refused to mention a fact during police questioning that they later rely on

16
[Queen v Swaffield; Pavic v The Queen (1998) 192 CLR]

17
Northern Territory Law Reform Committee Report on The Right to Silence.
18
Evidence Amendment (Evidence of Silence) Act 2013 No 9". www.austlii.edu.au. (Last visited on 17th March
2018)
in court in a bid to be found not guilty.19 The law strictly applies to those over the age of 18 and
who have an Australian legal practitioner physically present and available at the time of
questioning. The change is designed to reflect reforms made in the United Kingdom in 1994 and
only applies to indictable offences that carry a penalty of five or more years imprisonment. The
introduction of the Evidence Amendment (Evidence of Silence) Act 2013 sparked some
controversy and concern amongst legal scholars and practitioners.20

The Uniform Evidence Act has a number of provisions that are relevant to the right to silence in
NSW - sections 20, 89, 139 and 128. Section 89 and 139 relate to official police questioning, the
failure to caution and the impermissible use of failure to answer official police questioning to
draw an inference of guilt. Until the caution is changed it is quite clear that an inference should
not be able to be drawn from answering police questions. Section 128 provides that a witness
who objects to giving evidence on the ground that it may tend to incriminate them may in certain
circumstances be granted a certificate preventing the use of that evidence in other proceedings
(apart from a retrial).

Section 20(2) of the Uniform Evidence Law permits judicial comment on an accused’s failure to
testify, but not so as to “suggest that the defendant failed to give evidence because the defendant
was, or believed that he or she was, guilty of the offence concerned”.

The four basic requirements or preconditions will have to be met before an adverse comment can
be made, namely:

1. the prosecution must have established a clear prima facie case calling for a response;
2. the case must be such that the innocent accused would be expected to provide some
explanation beyond a simple denial;
3. the explanation should be within the accused’s peculiar knowledge so that the accused
can reasonably be expected to testify to it rather than anyone else; and
4. the case must be a circumstantial case and not a direct evidence case.

19
s.89A of the Evidence Act 1995 (NSW). "Media Release: Crime Crackdown: "Right to Silence Law
Toughened"" (PDF). NSW Government. (Last visited on 17th March 2018)
20
https://en.wikipedia.org/wiki/Right_to_silence
Even if there is a case which raises all these features, the difficult question is then – what form
may the comment take?

The current caution used in New South Wales is:

You are not obliged to say or do anything unless you wish to do so, but whatever you say or
do may be used in evidence.

QUEENSLAND

The current caution used in Queensland is:

Before I ask you any questions I must tell you that you have the right to remain silent.

This means you do not have to say anything, answer any question or make any statement unless
you wish to do so. However, if you do say something or make a statement, it may later be used
as evidence.

SOUTH AUSTRALIA

Evidence statutes generally allow a judge to comment on the defendant’s failure to give
evidence, but not to suggest that the defendant failed to give evidence because he or she is
guilty.21 In South Australia, the prosecutor cannot make a comment about the defendant’s failure
to give evidence.22 In South Australia the accused is not required to testify, but can choose to do
so.23 If the accused does testify, the prosecution may ask questions of the accused, to which the
accused’s answers may be incriminating.

WESTERN AUSTRALIA

Protection of the right is stronger in Western Australia. The Evidence Act 1906 (WA) also
provides that a witness may be compelled by the court to provide what would otherwise be

21
Evidence Act 1995 (Cth) s 20; Evidence Act 1995 (NSW) s 20; Evidence Act 2008 (Vic) s 20; Evidence Act 2001
(Tas) s 20; and Evidence Act 2011 (ACT) s 20.
22
Evidence Act 1929 (SA) s 18(1)(b)
23
Evidence Act 1929 (SA) s 18(1)(a)
incriminating evidence, if the judge issues a certificate precluding the use of the evidence against
that person.24

Therefore, it can be said that Right to silence is recognized in South and Western Australia.
Prosecution cannot comment when accused chooses to remain silent although judge may but
subject to restrictions.

TASMANIA

Section 20 of the Evidence Act, 2001(Tasmania) clearly states that the judge or any party, other
than the prosecutor, may comment on the failure of a defendant to give evidence.

In Tasmania, since 2001, “all parties may comment on the failure of a defendant to give evidence
because the defendant was, or believed that he or she was, guilty of the offence concerned.’25
This legislation change brings Tasmania into line with New South Wales and the
Commonwealth. Legislation in Western Australia26, South Australia27, and the Australian Capital
Territory28, prohibits any comment by the prosecutor on the accused’s silence at trial, but says
nothing about comment by the judge. Comment by the judge and by the prosecutor is prohibited
in Victoria29, and in the Northern Territory30. Queensland has no legislation concerning comment
to the jury by either the judge or the prosecutor, and both are therefore free to comment. In this
respect, Queensland is different from the Commonwealth and all other States. Weissensteiner
was a case from Queensland, but the decision of the High Court didn’t depend on that difference.

VICTORIA

The jury can draw adverse inferences from the answers that were given, but cannot draw any
inferences from the questions that were not answered.31 By answering some questions, the
accused does not waive his or her right of silence. The accused’s selectiveness in answering

24
Evidence Act 1906 (WA) s 11
25
Evidence Act 2001 (Tas) s 20.
26
Evidence Act 1906 (WA) s 8(1).
27
Evidence Act 1929 (SA) s 18(1).
28
Evidence Act 1971 (ACT) s 74.
29
Crimes Act 1958 (Vic) s 399(3).
30
Evidence Act 1939 (NT) s 9(3).
31
(R v Barrett (2007) 16 VR 240).
questions therefore cannot demonstrate a consciousness of guilt.32In Victoria, some limitations
have been placed on the right to silence by the pre-trial disclosure requirements of Part 5.5 of the
Criminal Procedure Act 2009.If the accused fails to comply with the pre-trial disclosure
requirements contained in Criminal Procedure act 2009 then the judge or a party may comment
on the breach. Any comment made by the judge must be relevant, permitted by another Act or
rule of law and must not be unfairly prejudicial.33

Therefore it can be concluded that Australia has no constitutional protection for the right to
silence34, but it is broadly recognized by State and Federal Crimes Acts and Codes and is
regarded by the courts as an important common law right and a part of the privilege against self-
incrimination.35

32
(R v McNamara [1987] VR 855
33
Section 237 CRIMINAL PROCEDURE ACT 2009 (NO. 7 OF 2009)
34
Azzopardi v R [2001] HCA 25; 205 CLR 50; 179 ALR 349; 75 ALJR 931 (3 May 2001) available at
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2001/25.html (Last visited on 17 March 2018).
35
Australian Law Reform Commission, "Traditional Rights and Freedoms -Encroachments by Commonwealth
Law" (ALRC Interim Report 127)