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Bagaric, Mirko --- "The Diminishing 'Right' of Silence" [1997] SydLawRw 20; (1997) 19(3) Sydney Law Review 336

The Diminishing Right of Silence

MIRKO BAGARIC[*]

1. Introduction

The right of silence has been recognised as a fundamental common law right. [1] On its face, the High Court in Weissensteiner v R [2] continued to uphold the importance of the right of silence: it refused to deny the right, [3] despite the extreme circumstances in which it was claimed. However, the respect accorded to the right was more fanciful than real. The outcome of Weissensteiner and the nonsensical distinctions made in it entail that the scope of the right of silence of an accused at trial is significantly limited; far more so than is apparent from a cursory analysis of the judgment.

The first section of this paper will examine the reasoning of the majority in Weissensteiner. This will include a discussion on why the majority was reluctant to overtly show its hand. Following this, the High Courts treatment of the right of silence at trial in Weissensteiner will be compared with its treatment of the pre-trial right of silence in Petty and Maiden v R. [4] Finally, I shall make some remarks concerning the logical relevance of silence.

First some background concerning the broad legal position regarding the scope of the right of silence. Prior to trial, a suspect has the right to remain silent and in some Australian jurisdictions this right has a statutory foundation in the form of requiring police to caution suspects of the right. [5] Further, where the pre-trial right of silence is exercised, this cannot be made the subject of adverse comment by the judge or prosecutor. [6] This is in contrast to the position in England, where the Criminal Justice and Public Order Act (1994) (UK) has all but abolished the right of pre-trial silence. Section 34 states that where an accused, on being questioned or charged, fails to mention any fact relied on in his or her defence which the accused could reasonably have been expected to mention, the court may in determining the guilt of the accused draw such inferences from the failure as appear proper. Such inferences may also be drawn where an accused fails to account to police for the presence of suspicious objects, substances or marks on or about his or her person at the time of arrest, [7] or where the accused fails to account for his or her presence at a particular place at around the time the offence was committed. [8] Although these provisions do not compel an accused to speak, by providing that silence may be taken as a sign of guilt there may be irresistible pressure to do so. [9] Thus the right of pre-trial silence is effectively abrogated. [10]

At trial, in all Australian jurisdictions an accused has a choice to give sworn evidence or remain silent. [11] However, in Queensland both the judge and prosecutor may comment on the accuseds in-court silence. [12] In Victoria and the Northern Territory, neither the judge nor the prosecutor may comment on the exercise of the right of silence at trial, [13] while in the other Australian jurisdictions the judge alone may comment on the exercise of this right. [14] The exact form which such comment can take is discussed below, however, essentially the judge may direct the jury that an inference of guilt can be drawn more safely where an accused remains silent, but they cannot assume the accused is guilty because of his or her silence.

In England the position is more disadvantageous to the silent accused. Pursuant to section 35 of the Criminal Justice and Public Order Act 1994 (UK), unless an accuseds physical or mental condition is such that it is undesirable for him or her to give evidence, at the conclusion of the prosecution case the court will ensure that the accused is aware that he or she can give evidence and explain to the accused the effect of a failure to do so. Where the accused chooses not to give evidence or having been sworn refuses to answer any questions the court or jury may draw such inferences as appear proper. [15] In interpreting similar provisions in Northern Ireland, the House of Lords has held that permissible inferences to be drawn include that the accused is guilty of the offence charged.

[16]

2. Right of Silence at Trial

A. Weissensteiner: Outcome

The accused in Weissensteiner sought to exercise the right of silence at his trial for the murder of two travelling companions. In the Supreme Court of Queensland the accused was convicted of murder and theft of a yacht belonging to one of the alleged victims. The case against the accused was totally circumstantial. The accused agreed to work on the boat in return for being taken on a cruise planned by the victims. After several months, the victims inexplicably disappeared without a trace and the accused sailed off alone on the yacht. The bodies of the victims were never found. After their disappearance the accused gave several different accounts to customs officials, and the like, regarding their whereabouts. None of these appeared to be accurate. When the yacht was eventually intercepted a number of sentimental and valuable items belonging to the victims were still on board and the name of the yacht had been changed.
At the trial the accused remained silent and there was no other evidence called on his behalf. The trial judge in his directions to the jury instructed them that the onus of proof is on the Crown and the accused bears no onus and did not have to prove anything. Accordingly there was no obligation on the accused to give evidence and guilt could not be inferred from his failure to do so. The judge then stated that the result of the accuseds silence is that there is no evidence from him to refute the prosecution evidence. However, after pointing out that the prosecution sought to establish guilt from a whole set of circumstances, the judge stated an inference of guilt may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which it can be easily perceived must be within his knowledge. [17]
On appeal, the High Court by a majority of five members to two upheld the above direction. Mason CJ, Deane and Dawson JJ in one of the majority judgments held that:
Silence on the part of the accused at trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence ... But it is not to deny the right; it is merely to recognise that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right (emphasis added)[18].

B. Weissensteiner: Analyses

Thus ostensibly the judgment fell short of asserting that the right of silence at trial had been limited or qualified. Rather it is just that when the right is exercised in circumstances where the accused apparently has peculiar knowledge of the relevant facts, the accused must be prepared to pay the resulting natural price for asserting the right: allowing the prosecution to advance uncontradicted evidence, which is much easier to accept than disputed evidence. There can be no quarrel with this; uncontradicted evidence is necessarily the strongest form of evidence. The judgment also provided that not only is the accuseds silence a consideration the jury can take into account, but it can also be the subject of judicial comment.

(i) The Distinction Between Intrinsic and Incidental Consequences of an Act

In maintaining that the right of silence at trial had not been curtailed, despite the disadvantages which may result from its exercise, the majority implicitly appeared to be relying on the distinction between the intrinsic (or necessary) consequences and the incidental consequences of an act or decision. Where an accused is silent the evidence against the accused may then be uncontradicted, and this will of course be damaging to the accused. This disadvantage is no doubt a by-product of the silence, but it is not necessarily because of it the defence can adduce evidence from other sources.

It is only if silence per se attracted a sanction that it could be said the right was being narrowed, that is silence, independent of other factors (such as where this results in uncontradicted prosecution evidence). The incidental and intrinsic consequences distinction appears to have some merit. It is certainly not uncommon that when exercising a right, a collateral disadvantage may follow. By continuing to assert my right to life I know that somewhere down the track I will probably suffer some pain and unhappiness, and by maintaining my right to private property against the car thief it is almost inevitable that somewhere down the track the car will cause me some trouble, mechanical or otherwise. In neither of these situations are my rights being denied, despite the resulting disadvantage that I will suffer. The intrinsic and incidental distinction accords with the rationale advanced in the minority judgment of Gaudron and McHugh JJ in Weissensteiner. Their honours accepted that suspicious uncontradicted facts, such as possession of the yacht, could be used against the accused, but his failure to give evidence could not then further add to the case against him. [19] The distinction is also the basis upon which the doctrine of recent possession rests. [20] Possession of recently stolen property is innately suspicious and raises a presumption that the person in possession in fact stole the property. This presumption exists not because the person remains silent and fails to offer an alternative explanation, but rather because as it happens the other circumstances are so pointed that human experience supports the view that the person in possession of the property is the likely thief.

The intrinsic and incidental distinction, however, becomes immaterial when the incidental sanction is so closely or commonly attached to the exercise of the right that in effect it becomes inseparable from it. If it always followed that whenever I exercised my right to keep my car against a car thief I necessarily incurred a fine, then it must be the case that my property right is being denied or qualified. Now in the case where the accused exercises his right of silence at trial, it need not always follow that this will result in uncontradicted prosecution evidence. Hence if the possibility of uncontradicted evidence was the only possible incidental sanction flowing from the exercise of the right of silence then the distinction proposed by the majority between not denying the right and adverse consequences flowing from its exercise is tenable. However the majority judgment went further. In the context of discussing the circumstances in which an accused is required to give evidence to avoid unfavourable judicial comment, their honours provided that:

a jury should not be invited to take into account [against the accused] the failure of the accused to give evidence unless the failure is clearly capable of assisting them in the evaluation of the evidence before them (emphasis added). [21]

The above passage points not to an incidental disadvantage which may flow from remaining silent, but one which flows directly from it. This is over and beyond any disadvantage that may flow from possible uncontradicted evidence. The potential prejudice to the accused is not grounded on, or confined to situations of, uncontradicted evidence. This is merely a sufficient, but not necessary precondition for the impairment to the accuseds case. It is silence of its own which attracts the sting. Even where the defence offers evidence to contradict some of the prosecution case, say, through witnesses other than the accused, the accuseds silence can still be used against him or her where the failure to give evidence is clearly capable of assisting the jury in the evaluation of the evidence. [22]

Accordingly, while the above judgment, on its face asserts that adverse inferences from in-court silence are not permitted only that unrebutted prosecution evidence may be more readily accepted the logical upshot of the judgment, stemming largely from the fact that there were no meaningful limits placed on the circumstances when in-court silence can be detrimental to the accused, is that the exercise of the right to silence at trial in itself may warrant the drawing of unfavourable inferences.

In the other majority judgment, Brennan and Toohey JJ even more unequivocally held that a disadvantage may flow purely from exercising the right of silence at trial. Their honours stated that: a judge may tell the jury that where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accuseds failure to give evidence into account in determining whether the inference [of guilt] should be drawn (emphasis added). [23]

A little later it was stated that the use to which the appellants failure to give evidence may be correctly put is correctly restricted to the strengthening of an inference of guilt from the facts proved (emphasis added). [24] In short, if an accused remains silent when we would expect the accused to speak, this can be used against the accused by the jury. Here again the disadvantage is not framed in terms of the likelihood of uncontradicted prosecution evidence which may ensue if the accused remains silent. Quite simply the disadvantage is framed in terms of the direct effect of remaining silent.

Thus the wash-up of Weissensteiner is that where the accused fails to give evidence, in certain circumstances, [25] exercise of the right of silence effectively constitutes an item of circumstantial evidence against an accused, and in such circumstances judicial comment that an inference of guilt can be more safely drawn is permissible. In such circumstances exercise of the right of its own causes an inherent disadvantage to the accused. The issue then becomes whether this means that the right of trial silence has been denied or attenuated; that is whether it no longer applies in these circumstances, or it is still plausible to maintain that the right exists and it is simply that we cannot shut our eyes to the resulting consequences. The majority of the High Court clearly felt that the latter was the case. Mason CJ, Deane and Dawson JJ, despite acknowledging that disadvantages may flow from the exercise of the right, stated that this was not to deny the right.

(ii) Whether a Right can Exist when its Exercise Necessarily Involves a Disadvantage

The view that a right can exist and yet a disadvantage may nevertheless follow pursuant to its exercise is open to challenge. The view is supported by Charles R Williams, who states that the fact a right exists does not mean that no disadvantage may flow from its exercise. [26] However, such a claim reveals a misunderstanding of what it means to have and to exercise a right. It is contradictory to claim that both one has a right and that disadvantages can flow from its exercise. [27] When negative consequences ensue to the right holder it is necessarily the case that the parameters of the right have been transcended: the scope of the right has been sufficiently attenuated so that it has no application in the circumstances. To be sure, we need to consider the definition of what constitutes a right.

This is no simple feat. There is no shortage of definitions which have been advanced. Following the work of Wesley Hohfeld, [28] there has been much useful discussion in this area. McCloskey believes rights to be simply entitlements, [29] while in Sprigges view the best way of understanding ... that someone has a right to something seems to be to take it as the claim that there are grounds for complaint on their behalf if they do not have it. [30] Still further, rights have been defined as: claims and entitlements to benefit from the performance of obligations; [31] those minimum conditions under which human beings can flourish [as moral agents] and which ought to be secured for them, if necessary by force; [32] and the liberties each man hath, to use his own power, as he will himself, for the preservation of his own nature. [33] Finally, Galligan defines a right as a justified claim that an interest should be protected by the imposition of correlative duties. [34]

Although, as we shall shortly see, it is not necessary for the purpose of this discussion to determine which definition is the most plausible, for the sake of completeness, and hence without being too concerned to argue the point, I believe the following to be the correct definition of a right. A right is a presumptive benefit or protection one can assert against another individual or the community in general. Presumptive, because it is never indefeasible or absolute. By benefit, I mean a positive entitlement such as the right to welfare. A protection is a negative entitlement, such as the right to be free from a particular violation. I do not agree with Harts view that a right necessarily requires that the holder must be in a position to elect whether or not to exercise it. [35] It does not seem to be overly straining the language to assert that children, the mentally handicapped or even animals have rights. For example, it is appropriate to speak of the mentally disabled as having the right to have children, or children as having the right not to be physically abused, and such issues are normally discussed in terms of rights without even the hint of incoherency. [36]

The reason we need not here deeply concern ourselves with which definition is correct is because whichever definition is selected it is apparent that a right is at the bare minimum a positive quality or a plus. Having a plus is obviously not sufficient to have a right, but it is the one pervasive feature to emerge from the differing views as to what constitutes a right, and hence we may conclude that it is a necessary feature of a right. None of the definitions state or even imply that a right could involve a minus or a disadvantage. Nor could any tenable definition maintain any such thing. For to directly negate the necessary element of the term would constitute a clear internal incoherency. In Pettys case the High Court seemed to accept exactly this point. In the context of discussing the importance of the right of pre-trial silence it stated, an 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 questions or provide information. To draw such an adverse inference would be to erode the right of silence or to render it valueless (emphasis added). [37]

Given that an accused who exercises the right of silence at trial in certain circumstances will necessarily be adversely effected, and sometimes this will occur simply because he or she remained silent, it follows that it is wrong to suggest that the decision in Weissensteiner does not mean that the right of trial silence is denied or qualified.

(iii) Explanation for the Reasoning in Weissensteiner: Deontology and Absolute Rights

The curious issue to arise from Weissensteiner is why the majority of the court was so cryptic in its views and reluctant to state the obvious: that there are exceptions to the right of silence at trial. [38] At the minimum this would have involved a far simpler process of reasoning and circumvented the need to attempt to make impossible distinctions.

In my view, the confusion stems from the increasingly important role that rights-based moral theories have assumed in moral and legal discourse and the natural, though flawed, implication regarding the operation, scope and application of rights that stems from such theories.

In the last half a century, following the Second World War, there has been an immense increase in rights talk, [39] both in sheer volume and the number of supposed rights. The rights doctrine has progressed a long way since its original rather uncomplicated and noble aim of providing a legitimation of ... claims against tyrannical or exploiting regimes. [40] There is now, more than ever a strong tendency to advance moral claims and arguments in terms of rights, and it is certainly not far off the mark to propose that the escalation of rights rhetoric is out of control. [41] Assertion of rights has become the customary means to express our moral sentiments: there is virtually no area of public controversy in which rights are not to be found on at least one side of the question and generally on both. [42] The domination of rights talk has been such that it is probably accurate to state that the doctrine of human rights has at least temporarily replaced the doctrine of maximising utilitarianism as the prime philosophical inspiration of political and social reform. [43]

The main perceived advantage of rights-based moral theories is that only such theories prioritise individual sacrifices over net happiness and take seriously the distinction between human beings and hence are capable of protecting fundamental interests, such as justice, which are beyond the demands of net happiness. [44] The strength in this argument lies in the fact utilitarianism (the most persuasive alternative moral theory) is a maximising principle, the aim being to maximise net happiness, while the notion of rights is individualising, the purpose being to accord each individual certain interests. For all this, when rights-based moral theories have been placed under the microscope they have, in my view, been found wanting. Key questions concerning the foundation, scope and priority of rights have not been convincingly addressed by such theories. [45] The present state of affairs regarding rights-based theories is still best summarised by Hart; it cannot be said that we have had ... a sufficiently detailed or adequately articulated theory showing the foundation for such rights and how they are related to other values. Indeed the revived doctrines of basic rights are ... in spite of much brilliance still unconvincing. [46] Such philosophical comment has not, however, slowed the rights movement.

There is a very close association between law and morality, [47] and the High Court, along with nearly every other institution which deals with moral issues, has also been heavily influenced by the rights wave which now dominates moral discourse. Nowhere is this more apparent than in the area of constitutional law where the High Court in recent times has found a number of rights and freedoms buried deep within the Constitution. For example, the implied right or freedom to political discussion [48] and the right to equality. [49] Closer to home, even in matters touching on the criminal law, we now find that the High Court is re-defining the basis or rationale for age old fundamental common law principles in terms of rights. In Environment Protection Authority v Caltex Refining Co Pty Ltd, [50] the High Court stated that the privilege against self-incrimination is a human right protecting the dignity of the accused. [51] Rights are naturally associated with a deontological view of morality, [52] in which case they are felt to apply with a large degree of absoluteness: the prospect of utilitarian gains cannot justify preventing a man from doing what he has a right to do, [53] and the general good is never an adequate basis for limiting rights. Thus upon embracing a deontological picture of morality and acknowledging that a right exists it seems contradictory to then say that in a certain case the right should be trumped in order to achieve a more important goal.

This is exactly the dilemma that the High Court found itself in Weissensteiner. It had acknowledged that the right of trial silence existed and was relevant to the facts, however it was also apparent that to permit the right to be exercised would be to subvert the important aim of ensuring the guilty are convicted. The deontological view of rights which the High Court appears to have adopted prompts an innate reluctance to allow rights to be infringed. It seems that the High Court in seeking to remain loyal to its deontological bent and hence avoid the perception that the right of silence at trial had been sacrificed or denied, cornered itself into advancing the fictitious distinction discussed earlier.

In actual fact though, the majority of the High Court could have had it both ways. It could have remained true to its deontological inclinations and still coherently denied the right of silence at trial. All rights, including those supposedly founded on a deontological picture on morality, are subject to some qualification. [54] Even Ronald Dworkin, perhaps the leading deontological rights philosopher, who urges us to take rights ever so seriously, accepts that it is appropriate to infringe on a right when it is necessary to protect a more important right, or to ward off some great threat to society. [55] Similarly, Robert Nozick, another leading rights proponent, acknowledges that consequentialist considerations would take over to avert moral catastrophe. [56]

In view of this, a far more congruous manner in which the majority of the High Court could have reached the desired outcome in Weissensteiner is simply to have stated that the communitys interest in convicting the guilty in some circumstances, including where there is a prima facie case against an accused who must have knowledge of the relevant facts, prevails over the accuseds right of silence at trial.

Given that the distinction advanced by the majority in Weissensteiner appears to be illusory we will now consider the practical outcome of the case in terms of the extent to which the right of silence at trial has been restricted. Due to the facts of the case, Weissensteiner did not go as far as previous cases in limiting the extent of the right of silence at trial. It did not, however seek to narrow the breadth of previous exceptions. In order to ascertain the extent to which the right is limited we need to briefly consider previous authorities.

C. Practical Outcome and Significance of Weissensteiner: The Scope of

Exception to Right of Silence at Trial

Strictly, the outcome of Weissensteiner is that an accuseds silence at trial constitutes a piece of evidence which contributes to the body of evidence which justifies a guilty verdict where a prima facie case [57] has been established against the accused and it appears the accused alone is possessed of relevant factual knowledge. Further, in such circumstances the judge can give a direction that an inference of guilt can be drawn more safely. However, despite the probative value which in-court silence may have, a judge must not go so far as directing a jury that they can assume guilt from the accuseds failure to give evidence. [58]

Where the relevant facts are not only within the knowledge of the accused, previous cases have held that the silence of an accused can still tell against him or her. [59] It is just that the accuseds silence will have greater weight when the relevant facts are peculiarly within the accuseds knowledge. [60]

Weissensteiner did not alter this position. Likewise in relation to the proposition that where there is good reason for the silence of an accused, silence cannot weigh against him or her. [61] Thus Weissensteiner is not novel law, it has not eroded the right of silence to any greater degree than was indicated by earlier decisions. Even in the jurisdictions where neither the judge nor the prosecutor can comment on an accuseds decision to remain silent at trial [62] , the prevailing situation was that an accuseds silence at trial permitted a more ready acceptance of the Crown case, especially where it appeared the accused alone was able to explain the relevant facts. [63]

In relation to judicial comment on an accuseds silence at trial, as early as 1893 the Privy Council held that a judge may invite a jury to draw adverse inferences against an accused who remains silent in circumstances where knowledge of the relevant facts must be within his knowledge. [64] Similar sentiments were also expressed in the cases of Bridge v The Queen; [65] R v Rhodes; [67] In the case of R v Sparrow, [69] the trial judge made adverse comments on seven different occasions against the accused for his failure to give evidence. This was upheld on appeal where it was stated that in the judgment of this Court, if the trial judge had not commented in strong terms on the appellants absence from the witness box, he would have been failing in his duty ... and if he [the judge] thinks he should do so more than once, he may. [70] However there are limits to the extent of such comments. In R v Lander [71] the judge commented only four times on the accuseds failure to give evidence, however in doing so used emotive language in describing the decision to remain silent. Not surprisingly the accuseds conviction was quashed on appeal. [72] It follows that the comments on the accuseds silence should not be too repetitive or disparaging, especially where the relevant facts are not only within the knowledge of the accused.

The real significance of Weissensteiner is that it is the first occasion that the High Court has pointedly discussed the issue of the consequences that follow where an accused exercises the right of silence at trial, and that despite the High Courts strong support for the right of pre-trial silence only two years earlier in Petty and Maiden v R,[73] it upheld the limits which previous cases had established to the right of silence at trial.

In addition to this, Weissensteiner foreshadowed the further erosion of the right of silence at trial. The judgment of Mason CJ, Deane and Dawson JJ provides that adverse inferences can be drawn as a consequence of in-court silence where the failure of the accused to give evidence ... is clearly capable of assisting [the jury] in the evaluation of the evidence before them, [74] or is a circumstance which may bear on the evidence which has been given. [75] Brennan and Toohey JJ stated that silence can be used to support an inference of guilt when it is reasonable to expect some denial, explanation, or answer by an accused to the prima face case made against him. [76] Given the view expressed by some legal commentators that the innocent normally talk, [77] the outlook for the right of silence at trial seems very precarious.

3. Pre-trial Silence

A. Petty and Maiden: Outcome

In Pettys case, Petty and Maiden were convicted of the murder of a hitchhiker who they had picked up. The prosecution alleged that Maiden either killed the victim or was an accessory to the murder committed by Petty. In a record of interview, which was admitted into evidence, Maiden asserted that Petty alone was responsible for the killing. However, at the trial Maiden totally resiled from his record of interview, stating that it was inaccurate, and for the first time (in an unsworn statement) stated that he alone accidentally killed the victim while he was defending himself from an attack by the victim. The High Court dismissed an appeal by Petty and Maiden that the trial judge erred in directing the jury that the failure of Maiden to advance an explanation of accidental killing during the record of interview could be taken into account in judging the weight to be given to the explanation advanced at the trial. Mason CJ, Deane, Toohey and McHugh JJ in a joint judgment correctly pointed out that this was not a case of pre-trial silence, but rather one where a pre-trial defence was abandoned at trial and replaced by a totally different defence. In view of the inconsistent accounts given by Maiden, the jury was entitled to take into account the false allegation in determining whether the defence advanced at trial was spurious.

B. The Scope of the Pre-Trial Right of Silence

The more interesting comments for our purposes were those raised in obiter dicta in the joint majority judgment. The judgment went on to give a pointed, clear and powerful endorsement of the right of pre-trial silence. Their honours stated that where the right of silence is exercised before trial, the judge cannot invite the jury to draw adverse inferences against the accused: such an erosion of the fundamental right [of silence] should not be permitted. [78] This applies where the accused remains silent throughout or where the accused remains silent before trial and then for the first time raises a defence at trial. Still further, the High Court went on to extend the operation of the right to pretrial silence. Prior to Pettys case, while the exercise of the right of pre-trial silence could not provide a basis for inferring a consciousness of guilt, in some cases it was held that the judge could comment on the fact that by reason of the silence the accused had not disclosed the defence earlier and that this made it difficult for the prosecution to investigate the defence. [79] In Pettys case the tenuous distinction between inferring a consciousness of guilt and denying credibility to a late defence or explanation by reason of earlier silence was abolished; the later being just another way of drawing an adverse inference ... against the accused by reason of his or her exercise of the right of silence. [80] Thus silence, resulting in a late defence could not be made the subject of any adverse comment despite that permitting late defences to be advanced without comment could allow the accused a substantial advantage by preventing the prosecution from properly investigating the merits of the defence and leaving the way clear for the accused to base his or her defence upon an opening which does not emerge until the end of the prosecution case. Thus, unlike in Weissensteiner, a possible advantage to the accused by remaining silent was not sufficient to erode the right of silence, and the High Court was not interested in fine distinctions. The precise scope of the right of pre-trial silence was not in issue in Pettys case, however even in obiter dicta the majority of the court did not go all the way and eliminate all of the exceptions to the right of pre-trial silence. Where a person is confronted by someone other than a person in authority, silence or a refusal to respond to accusations or questions may give rise to an inference of guilt. [81] Silence may also constitute a consciousness of guilt where the suspect answers questions in a selective and evasive manner [82] although, strictly speaking in such cases the adverse inferences are derived as much from the manner in which the questions are answered, as from silence. Although the High Court acknowledged that the right of pre-trial silence was a fundamental right, it obviously felt comfortable with the fact that there could be clear exceptions or limits to this right unlike the corresponding situation in Weissensteiner. [83]

In Pettys case, Dawson J delivered a separate judgment agreeing with the majority. The remaining judges, Brennan and Gaudron JJ dissented, holding that the trial judges comments were erroneous.

The High Court in Glennon v R, [84] again stated that the pre-trial right of silence was a fundamental right and affirmed its decision in Petty. In Glennon, the High Court held that the ruling of the trial judge to the effect that the jury was entitled to use the accuseds pre-trial silence to test the veracity of his defence was erroneous.

4. The Relevance of Silence and the Differences Between

Silence Pre-trial and at Trial

Despite my criticism of the reasoning in Weissensteiner, it still could be argued that there is considerable merit in the broad outcome of the decision: that the right of silence at trial is less worthy of protection than the pre-trial right of silence. An accuseds right of silence, pre-trial and at trial, is the principal manifestation of the accuseds privilege against self-incrimination, which in turn has as its foundation the proposition nemo tenebatur prodere seipsum [no man should be obliged to give himself away]; and his fault was not be wrung out of himself, but rather to be discovered by other means, and other men. [85] Despite similar origins, a greater need to protect the pre-trial right of silence than the right of silence at trial has been advanced on the grounds that by the time the trial commences, the accused knows the case to answer, has normally had legal advice [86] These distinctions appear to be quite sound, although their significance could be somewhat abated by requiring that adverse comment could only be made regarding pre-trial silence where all of the requirements of a proper interrogation had been met and the suspect was accorded access to a lawyer [88] and had been informed, as far as possible, of the basic case against him or her. In any event, the question of which type of silence is worthy of greater protection is subordinate to the logically prior issue which was at stake.

The real misfortune of the Weissensteiner decision is that the High Court by not acknowledging that it had limited the right of in-court silence, has permitted incourt silence to be used adversely against the accused without a full consideration and, and one suspects, appreciation of the most fundamental issue which was at stake: whether in fact silence, pre-trial and at trial, can ever logically constitute probative evidence against an accused.

The case for the relevance of silence, pre-trial and at trial, stems from a generalisation about human nature: most people if falsely accused and tried for a crime would wish the opportunity of expressing their innocence to the jury and of contesting the prosecution evidence. If the accused declines that opportunity, then one likely explanation ... is that he or she is in fact guilty. [89] In a similar vein, Jeremy Bentham believed that the inference from an accuseds silence to guilt was justified by the known principles of human nature and commonsense. [90]

This line of reasoning however is not telling. In the pre-trial situation, equally intuitively appealing generalisations concerning human nature consistent with innocence can be advanced to explain why a suspect would not wish to speak. It could be asserted that an unwillingness to speak stems from a natural reluctance to speak and open up to strangers, particularly those in positions of power, whose motives one is unsure of. [91] This hesitancy being, arguably, increased by the apparent potential enormity of the situation and the confusion stemming from the lack of information which is typically provided to suspects. Now, which of the competing generalisations (the inclination to speak or not to speak) is the more accurate or pervasive is purely a matter of conjecture. But until some evidence, beyond mere armchair speculation, is advanced either way, to remain true to the most fundamental tenet of our legal system the presumption of innocence surely a preference must be shown for the latter. [92]

At trial, the generalisation that the innocent will normally speak is threatened by other considerations and generalisations about human nature, which may naturally sway one not to speak. While generalisations about human nature form a central part of our belief systems, it is important not to apply them out of context. We should not lose sight of the fact that generalisations about human nature are context sensitive: they are based on typical human reactions against a background of certain social and environmental settings, and it is dangerous to apply them outside the parameters in which they are formed. Thus while it may be true that most people when falsely accused would desire the opportunity to present their version of the story, it is unclear how persuasive this natural desire is in the context of the wholly artificial investigation process utilised in a court room which is littered with technical and complicated, and in some cases counter-intuitive, rules and procedures. [93] One could guess that the desire for self-preservation would still prevail. Even so, this desire need not necessarily manifest itself in the accused personally expressing his or her innocence, for in this artificial process there is ample scope to utilise other means (such as damaging cross-examination of prosecution witnesses or relying on other defence witnesses) through which the ultimate aim of self-preservation may be pursued. Thus given the extreme setting of the court room, there is much doubt about the accuracy and relevance of general observations formed about human nature. Extending the generalisation that the innocent will speak, to the innocent will speak in court may be just as suspect as extending the generalisation that people are courteous, to say that people (drivers) are courteous to other road users.

In response to this, it could be argued that silence, like all other items of evidence, relies for its relevance on generalisations, and the fact that such generalisations are not universally true does not constitute an adequate reason for declining to have regard to the evidence. [94] Reasons other than consciousness of guilt which may explain silence would seem properly to fall within the province of the jury when assessing the weight to be accorded to the accuseds silence. [95] However few, if any, jurors would have sufficient knowledge of the complexities and intricacies of the legal system and the resulting subtle, and at times not too subtle, pressures and influences on a suspect or accused which may sway him or her not to speak, to enable the jurors to make an informed and balanced judgment regarding whether in the normal scheme of things a person would have still ordinarily taken the opportunity to speak. The concerns and dilemmas weighing on an accuseds or suspects mind as a consequence of the processes and complexities of the legal system are clearly not within the range of matters within the experience of ordinary persons or are capable of being understood by them, [96] and therefore are not proper matters upon which inferences, conclusions and judgments should be made by jurors.

In addition to the above, a more lateral examination of how silence is treated, casts further doubt on whether we are genuinely committed to the generalisation that the innocent will speak. A particularly illuminating feature of the right of silence issue, is the one-sided use of generalisations about what suspects and accused persons are expected to do when given an opportunity to explain. To the extent that such generalisations are applied, they are only done so in a manner adverse to the accused. If there was a genuine conviction to the proposition that the innocent will speak, one would expect that where the accused speaks, either at or prior to trial, this should, at least in certain circumstances, be a basis for an inference of innocence. An acceptance of the generalisation that people of good character are less likely to commit offences has resulted in the rule of evidence that where good character evidence on behalf of the accused is led, a jury should be given a direction that they should bear in mind the accuseds previous good character when considering the likelihood of the accused committing the offence charged. Similarly, a true commitment to the proposition that the innocent generally speak, should warrant a direction where the accused does speak along the lines that: normally the innocent speak and that although the accused was not required to give evidence (or participate in a record of interview) he or she did so, and the jury should bear this in mind when considering their verdict. The fact that no such direction is given, and that no reforms along such lines have been suggested, indicates a curious vacillation towards the relevance of the generalisation that the innocent will talk and its corollary that the guilty will not. Until a full commitment is shown towards these generalisations, perhaps they should not be used for the basis of inferences in either direction. [97]

Ultimately, however whether or not in principle silence is of any probative value and pre-trial right of silence is worthy of greater protection than the right of silence at trial is not crucial for the purpose of this discussion. The point which I wish to make, and hopefully is apparent from the above discussion, is that as a result of the artificial distinctions proffered by the High Court in Weissensteiner the Court failed to seize the opportunity to fully consider the right of silence issue and hence the issue still awaits thorough and considered authoritative judicial analysis.

5. Conclusion

The judgments in Weissensteiner and Pettys case varied immensely, not only because the right of silence was taken far more seriously in Weissensteiner but also by virtue of the reasoning adopted in the respective judgments. The High Courts reluctance in Weissensteiner to accept that it had limited the right of silence at trial resulted in untenable distinctions being proffered. In contrast, in Pettys case the High Court went out of its way to abolish such distinctions and had no difficulty with the notion that no right is absolute.

The above discussion shows that following Weissensteiner there are clearly exceptions to the right of silence at trial; in some circumstances the right may be denied. In contrast, the pre-trial right of silence was strongly endorsed and indeed expanded in Pettys case. As has been discussed, there may be a stronger case for protecting the right of pre-trial silence than the right of silence at trial. However, by not coming out openly and stating in Weissensteiner that the right of silence at trial had been curtailed, not only did the High Court fail to take the opportunity to fully consider the right of silence issue, but we are left with the disturbing situation that the right of silence at trial is now a possible source of entrapment for the accused who, understandably, may be unwary of the negative effect of exercising such a right. This is especially so, given that, unlike the position in England where the right to in-court silence has been clearly curtailed, at the close of the prosecution case the accused is not informed by the court of the possible ramifications of his or her failure to give evidence. In Pettys case the High Court was alert to the possibility of converting the right to remain silent into a source of entrapment,



[*] BA LLB (Hons) (Monash) LLM (Monash), PhD candidate, (Monash). Barrister and Solicitor, Office of Public Prosecutions (Vic).
[1] For example, in R v Beljajev [1984] VicRp 57; [1984] VR 657 at 662, it was stated that the right of silence is a fundamental principle of the criminal law and is not to be overridden by any other so-called doctrine or principle. More recently see Glennon v R (1994) 179 CLR 1 at 8.
[2] [1993] HCA 65; (1993) 178 CLR 217.
[3] Id at 229.
[4] (1991) 173 CLR 95.
[5] For example, Crimes Act 1958 (Vic), s464A(3); Crimes Act 1914 (Cth), s23F; Summary Offences Act 1953 (SA), s79a. See also Evidence Act 1995 (Cth & NSW), s139.
[6] This is now given legislative force: Evidence Act 1995 (Cth & NSW), s89.
[7] Criminal Justice and Public Order Act (1994), s36.
[8] Criminal Justice and Public Order Act (1994), s37.
[9] Particularly, if the provisions are interpreted in a like manner to the similar provisions that came into force in Northern Ireland in 1988, where quite often most unfavourable inferences have been drawn against the accused, see Jackson, J D, Interpreting the Silence Provisions: The Northern Ireland Cases [1995] Crim LR 587.
[10] For a fuller discussion regarding the Criminal Justice and Public Order Act (1994) (UK) and the right of silence, see Pattenden, R, Inferences from Silence [1995] Crim LR 602; Mirfield, P, Two Side-Effects of Sections 34 to 37 of the Criminal Justice and Public Order Act 1994 [1995] Crim LR 612.
[11] The option to give unsworn evidence has now been abolished throughout Australia.
[12] R v Hocking [1988] 1 Qd R 582.
[13] Crimes Act 1958 (Vic), s399(3); Evidence Act 1980 (NT), s 9(3). However, the position in Victoria will probably change shortly to be in line with most of the other Australian jurisdictions. See, Victoria, Scrutiny of Acts and Regulations Committee Report, Review of the Evidence Act 1958 (Vic) (1996) Melbourne Government Printer, which recommended that section 20 of the Evidence Act 1995 (Cth), which permits judicial comment on in-court silence, be adopted in Victoria, and that this is a significant improvement on the current Victorian position. See also Weissensteiner at 224-225 regarding criticism of legislative provisions which did not permit comment on in-court silence
[14] Evidence Act 1995 (Cth & NSW), s20(2); Evidence Act 1929 (SA), s18(1)II; Evidence Act 1906 (WA), s8(1)(c); Evidence Act 1910 (Tas), s85(8). See also R v Rhodes [1989] 1 QB 77.
[15] See Criminal Justice and Public Order Act (1994) (UK), s35(3).
[16] Murray v DPP [1994] 1 WLR 1, where it was also held that such adverse inferences can only be drawn after the prosecution has established that the accused has a case to answer. See also, Jackson above n9.
[17] Taken from the facts of Mason CJ, Deane and Dawson JJ at 223-224.
[18] Weissensteiner at 229. Mason CJ re-affirmed his commitment to the distinction made in this passage in, Mason, A, Fair Trial (1995) 19 Crim LJ 7 at 10.
[19] Weissensteiner at 244-245.
[20] This doctrine was discussed in the judgment of Gaudron and McHugh JJ at 245-246 and more fully in Bruce v R [1987] HCA 40; (1987) 74 ALR 219.
[21] Weissensteiner at 228.
[22] This is in contrast to the views expressed by Gaudron and McHugh JJ.
[23] Weissensteiner at 236.
[24] Id at 237.
[25] These circumstances are elaborated on below.
[26] Williams, C R, Silence in Australia: Probative Force and Rights in the Law of Evidence (1994) 110 LQR 629 at 637.
[27] The disadvantages I refer to here are obviously necessary, not incidental ones.
[28] Hohfeld, W N, defined four categories of rights: claim-rights, privileges, powers and immunities. He qualifies this by stating that a claim right accords with the proper meaning of the term, right: see Hohfeld, W N, Fundamental Legal Conceptions (1919).
[29] McCloskey, H J, Rights: Some Conceptual Issues (1976) 54 Australasian J of Philosophy 99 at 115.
[30] Sprigge, T L S, The Rational Foundation of Ethics (1987) at 216-217.
[31] Marshall, G, Rights, Options and Entitlements in Simpson, A W B (ed), Oxford Essays in Jurisprudence (1973) 228 at 241.
[32] Kleinig, J, Human Rights, Legal Rights and Social Change in Kamenka, E and Tay, A E (eds), Human Rights (1978) 36 at 44-45.
[33] Hobbes, T Leviathan (1651, 1946 edn) at 84-85.
[34] Galligan, D J, The Right to Silence Reconsidered (1988) Current Legal Problems 69 at 88.
[35] Hart, H L A, Are there any Natural Rights? (1955) LXIV Philosophical Review Quarterly 175.
[36] See also, Marshall, G, Rights, Options and Entitlements in Simpson, A W B (ed), Oxford Essays in Jurisprudence (1973) 228 at 235; Regan, T, The Case for Animal Rights (1983). See also, Arnold, C, Analyses of Right in Kamenka, E and Tay, A E (eds), Human Rights (1978) 74 at 80-81, who points out that lunatics do have rights.
[37] (1991) 173 CLR 95 at 99. A similar point was also made by Justice T H Smith in his submission, dated 18 August 1995, to the Victorian Scrutiny of Acts and Regulations Committee Reviewing the Evidence Act 1958 (Vic), above n13 at 21. In the context of the debate concerning the desirability of legislating for judicial comment on in-court silence, he emphasised the conundrum of giving persons a right but penalising them if they exercise it.
[38] An inquiry into why the Court got it wrong may not seem to be directly relevant to this discussion, however I believe it is important because an explanation for the cause of an error adds weight to the claim that an error was in fact made.
[39] By rights talk I also include the abundance of declarations, charters, bills, and the like, such as the Universal Declaration of Human Rights (1948), the International Covenant of Economic, Social and Cultural Rights (1966), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1966), that seek to spell out certain rights.
[40] Benn, S, Human rights for whom and for what?, in Kamenka, E and Tay, A E (eds), Human Rights (1978) 59 at 61.
[41] Sumner, L W, The Moral Foundation of Rights (1987) at 1.
[42] Ibid.
[43] Hart, H L A, Essays in Jurisprudence and Philosophy (1983) 196-7.
[44] Rawls, J, A Theory of Justice (1972).
[45] For example, see Bentham, J, Supply Without Burthen, in Benthams Economic Writings (Stark, W, edn, 1952) 279; MacIntyre, A, A critique of Gerwith and the Notion of Rights in Pojman, L P (ed), Ethical Theory (1995) 715; but cf, Finnis, J Natural Law and Natural Rights (1980) Ch VII; Dworkin, R, Taking Rights Seriously (1984).
[46] Hart, H L A, Essays in Jurisprudence and Philosophy (1983) 195.
[47] For example, see Devlin, P, The Enforcement of Morals (1965), who argues that the criminal law is based on the enforcement of moral principle. Although it has been persuasively argued elsewhere that this is not necessarily the case, see Hart, H L A, The Concept of Law (1961) Ch VI.
[48] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211; Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104. Although the High Court in the recent decision of Lange v ABC, unreported High Court of Australia, 8 July 1997, effectively overturned the Theophanous decision and appears to be resiling from its view that the Constitution contains certain implied individual rights and freedoms, this does not impact on my comments in this paper, which largely focus on the attitude of the High Court during the period in which Weissensteiner was decided.
[49] Leeth v Commonwealth (1992) 174 CLR 455.
[50] [1993] HCA 74; (1993) 178 CLR 477.
[51] Another rationale for the privilege was stated as being to maintain the integrity of the accusatorial system of criminal justice.
[52] However this is not necessarily the case. Rights are also consistent with utilitarianism. Indeed, in my view it is only utilitarianism that can coherently explain the existence and source of rights and provide a rational method for prioritising rights when they clash. The main distinction between utilitarian and deontological rights is that in the case of utilitarianism, rights are derivative (upon their likelihood of maximising net utility); rather than foundational, and apply with less degree of absoluteness. For discussion on utilitarian rights, see Brandt, R B, Morality, Utilitarianism and Rights (1992) Chs 10 &11; Sumner, L W, The Moral Foundation of Rights (1987) Ch 6.
[53] Dworkin, R, Taking Rights Seriously in Simpson, A W B (ed), Oxford Essays in Jurisprudence (1973) 202 at 213.
[54] The fact that no right is absolute is evidenced by the extreme and fanciful lengths some have gone to in order to justify a claim to the contrary. For example, Gerwith, A (ed), Human Rights: Essays on Justification and Applications (1982) at 232-233, in search of an absolute right, states that the right of a mother not to be tortured to death by her son is absolute. However even such extreme examples fail. One could hardly begrudge a son torturing his mother to death if this was the only means to save the lives of all of his innocent relatives whom the mother was about to execute.
[55] Id 221-223.
[56] Nozick, R, Philosophical Explanations (1981) at 495.
[57] The necessity for a prima facie case to be first established against the accused is acknowledged by Mason CJ, Deane and Dawson JJ in Weissensteiner at 225.
[58] Weissensteiner and see also, Tumahole Bereng v R [1949] AC 253.
[59] For example, R v Corrie and Watson (1904) 20 TLR 365; R v Lander [1989] SASC 1827; (1989) 52 SASR 424. 376 SYDNEY LAW REVIEW [VOL 19: 366
[60] R v Neilan [1992] VicRp 5; [1992] 1 VR 57 at 65; R v Voisin [1918] 1 KB 531 at 537.
[61] R v Bathurst [1968] 2 QB 99. In Weissensteiner at 228, it was stated that where an accused remains silent and has good reason for this, other than that it would assist his or her case, a judge should warn the jury accordingly.
[62] Victoria and the Northern Territory, see above n13. In Victoria the court has rigorously enforced this proscription. Even subtle or implicit references to an accuseds decision not to give evidence are disallowed, see R v Barron [1975] VicRp 51; [1975] VR 496.
[63] R v Neilan [1992] VicRp 5; [1992] 1 VR 57. See also R v Bruce [1988] VicRp 62; [1988] VR 579 at 591; Tumahole Bereng v R [1949] AC 253 at 270; R v Corrie and Watson (1904) 20 TLR 365.
[64] R v Kops (1893) 14 NSWLR 150.
[65] (1964) 118 CLR at 615.
[66] [1962] NSWLR 1105.
[67] [1899] 1 QB 77 at 83-84.
[68] [1926] SAStRp 30; [1926] SASR 150 at 154.
[69] [1973] 1 WLR 488.
[70] Id 495.
[71] [1989] SASC 1827; (1989) 52 SASR 424.
[72] It should also be noted that in Lander it was not a situation where the accused alone had knowledge of the relevant facts. In Waugh v The King [1950] AC 203 the judge commented nine times on the accuseds failure to give evidence. On appeal this conviction was also quashed.
[73] (1991) 173 CLR 95.
[74] Weissensteiner at 228.
[75] Weissensteiner at 229
[76] Weissensteiner at 238.
[77] Williams, C R, Silence in Australia: Probative Force and Rights in the Law of Evidence (1994) 110 LQR 629 at 640.
[78] Id at 101.
[79] For example, R v Littleboy [1934] 2 KB 408; R v McNamara [1987] VicRp 68; [1987] VR 855; R v Ryan (1964) 50 Cr App R 144; R v Wright [1980] VicRp 56; [1980] VR 593.
[80] Mason CJ, Deane, Toohey and McHugh JJ at 101. Brennan J at 104, labelled this distinction as illusory. Dawson J at 120, disagreed on this point, holding that silence resulting in a late defence could be taken into account in assessing the credibility of the defence.
[81] Parkes v R [1976] 1 WLR 1251; R v Alexander [1994] VicRp 58; [1994] 2 VR 249. This exception was implicitly acknowledged in the joint majority judgment in Pettys case at 99, where it was stated that a person is entitled to remain silent when questioned by any person in authority. See also Brennan J at 107.
[82] Woon v R [1964] HCA 23; (1964) 109 CLR 529. This exception was noted in Pettys case by Gaudron J at 126 (and also in Weissensteiner by Brennan and Toohey JJ at 30). See also Young, P W, Silence as Evidence (1992) 66 ALJ 675.
[83] In my view it is not purely coincidental that the constitutional implied rights cases, see above, where the High Court appeared to fully embrace a deontological rights thesis, commenced in the two and a half year period between the decisions of Petty and Maiden and Weissensteiner.
[84] (1994) 179 CLR 1.
[85] Blackstone, Commentaries, Vol IV at 293. For a discussion regarding the historical origin of the right of silence, see Williams above n76 at 629-631, 637; McNicol, S B, Law of Privilege (1992) at 273-276. See also Zuckerman, A A S, Trial by Unfair Means The Report of the Working Group on the Right of Silence [1989] Crim LR 855, where he points out that the right of silence also stems in part from the general right to withhold information from authorities.
[86] Particularly since Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[87] McNicol above n85 at 286 and R v Coombs [1983] NZLR 748 at 752.
[88] Williams above n76 at 650.
[89] Id at 632.
[90] Menlowe, M A, Bentham, Self-Incrimination and the Law of Evidence [1988] 104 LQR 286 at 287.
[91] This last observation probably lies at the core of the fact that silence to persons on even terms can give rise to an inference of guilt, see Parkes v R [1976] 1 WLR 1251 at 1254. Cf, Williams, above n76 at 105, where he argues that there is no basis for the distinction between silence in the face of accusations to a person in authority and silence in the face of accusations by a person not in authority.
[92] The fact that most people do not appear to exercise the right to pre-trial silence (See Galligan, D J, The Right to Silence Reconsidered [1988] 41 Current Legal Problems 69 at 74) cannot be used to justify a preference for either generalisation, given that there is no evidence to date, as far as I am aware, of the respective portion of persons who speak who are guilty and innocent.
[93] An argument along these lines can be buttressed in situations where an accused has peculiar traits, such as poor communication skill, shyness, an inability to cope with stress, language difficulties, low intelligence and so on, which would make him or her even more reluctant to give evidence.
[94] Williams above n76 at 637-638.
[95] Id at 638.
[96] R v Runjanjic and Kontinnen [1991] SASC 2951; (1991) 56 SASR 114 at 120.
[97] The most persuasive attacks, in my view, on the right of silence stem from criticism of its foundation: the privilege against self-incrimination. For example, see Bentham, J, Rationale of Judicial Evidence (ed, Mill, J S, 1827); the arguments of Bentham are neatly summarised in Menlowe above n90). However, the High Court has recently given a strong endorsement to the privilege against self incrimination at least in the case of individuals, as opposed to corporations (Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477), hence pragmatically, it seems that there is little threat to the right of silence on this front.
[98] /p> and was adamant that this should not be done. It is most unfortunate that the High Court in Weissensteiner did not heed its own warning. 98 Petty and Maiden at 101.


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