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Biber, Katherine --- "Commentary on RPS v R" [2015] UTSLRS 5; Australian Feminist Judgements (Hart Publishing, 2015) Ch 17

Last Updated: 17 February 2017

What happened in RPS?

RPS was charged with two counts of carnal knowledge and six counts of sexual intercourse with his daughter, ISW, when she was between the ages of 4 and 14. Her sworn evidence was the primary evidence. There were no eyewitnesses, there was no circumstantial evidence and no expert evidence. RPS gave no evidence in his defence. Other evidence came from ISW’s mother and grandmother of their conversations with RPS after the daughter first complained to her mother. In those conversations RPS made admissions, as well as a partial denial. When the women had confronted him with ISW’s allegations, RPS is alleged to have responded, “I never had intercourse with her but everything else she said is true”. At trial there was argument about what, exactly, those conversations meant. What, exactly, had he admitted? This was left as a question for the jury. The trial judge directed the jury about the accused’s election not to give evidence and how – in the absence of his explanation, contradiction or denial – they might weigh the strength of the prosecution evidence. The jury found him guilty of four counts of sexual intercourse.

Why did RPS go to the High Court?

The trial judge’s directions substantially followed the earlier High Court ruling in Weissensteiner.[1] Following Weissensteiner, a trial judge was permitted to direct the jury that there were some circumstances in which an accused might be expected to speak and, if they didn’t, there could be an adverse inference drawn from their silence. However, in 1995 the Uniform Evidence Acts were enacted in NSW and at the federal level,[2] and section 20(2) of the Act appeared to be inconsistent with Weissensteiner. RPS was the High Court’s first opportunity to consider whether Weissensteiner-style directions were still permissible and, if not, what a trial judge might be permitted to say when directing the jury about the silence of the accused. RPS now applies in all jurisdictions belonging to the uniform Evidence Act regime.[3]

RPS introduced a significant restraint upon the trial judge. In rejecting Weissensteiner, the Court stated that it is “seldom, if ever” reasonable to expect an accused person to give evidence.[4] RPS says that judicial directions to the jury must protect the accused’s right to silence, their presumption of innocence, and must convey that the entire burden of proof rests upon the prosecution. Further, RPS says that judicial directions to the jury must make it clear that no adverse inferences can be drawn from the accused’s silence.[5]

The majority (Gaudron ACJ, Gummow, Kirby and Hayne JJ) acknowledged “the difficult task trial judges have in giving juries proper instructions”,[6] but they ruled that the trial judge’s directions contravened s20(2). They noted that the directions given at RPS’ trial contravened the right to silence, but they said that this term (‘right to silence’) obscures the particular principle being applied; that is, restraint upon judicial comment.[7] They interpreted the legislative provision widely: the judicial comment cannot invite any adverse inference.[8]

McHugh J agreed, in a separate judgment, that the judicial directions contravened the legislation. He said that the directions “left to the jury a train of reasoning which implicitly suggested [...] that the accused was guilty of the offences concerned”.[9]

Why is RPS open to criticism?

RPS, as I have written elsewhere, represents an attempt by the High Court to gag the trial judge.[10] Further, this gag is most commonly demanded and applied in cases arising from child sexual assault allegations. Notoriously difficult to prosecute, and typically emerging from contexts of secrecy, vulnerability and familial conflict, child sexual assault cases might logically be amenable to Weissensteiner directions. They are cases where the accused is the only person in a position to contradict or deny the complainant’s allegation, having “special knowledge” of the offence above all others,[11] and where the accused’s failure to explain might reasonably strengthen the prosecution’s case.[12] Despite the unique prosecutorial difficulties posed by cases such as these, the High Court has developed many evidentiary principles, of general application, arising from the very specific context of child sexual assault allegations.[13] Restricting judicial comments about the silence of the accused represents just one of these principles.

RPS is part of an emerging ‘jurisprudence of silence’ that appears to mis-recognise the nature, context and meaning of silence. In Australian case law, the ‘right to silence’ is most commonly litigated in disputes about the words spoken (or mis-spoken) by the trial judge to the jury; these words are supposed to say that silence means nothing. A critical response to this jurisprudence argues that silence frequently means something, that silence demands interpretation, and that context is crucial to grasping – and then relying upon – the meaning of silence. I have written,

in criminal enterprises and in criminal procedure, speech and silence exist on a spectrum, and in shifting contexts. There are times where silence is impossible, and times where it is irresistible. The law is rarely sensitive to the contexts in which silence falls and those in which silence is broken.[14]

Criticisms of such a restrictive jurisprudence of silence need not come from feminist perspectives.[15] However, our contemporary jurisprudence of silence demands that silence be smothered with words:

Silence, wherever it occurs in law’s jurisdiction, must be explained and explained and explained. In this babble of explanation law misbelieves that it protects silence; further, it often misattributes the term ‘silence’ to certain kinds of noise. Law’s commentary forecloses the possibility that silence might be deliberately ambiguous, that it might invite speculation, or that inferences demand to be drawn from it.[16]

What makes the feminist judgment different?

The application, clarification and potential expansion of Weissensteiner directions to the circumstances of RPS’s trial is central to the feminist judgment. The feminist judgment sees RPS as an opportunity to draw upon UK legislation, which had been in place since 1994. That legislation allows adverse inferences to be drawn from the failure of the accused to give evidence, as explained in the feminist judgment. Further, the feminist judgment reminds the accused that, whilst silence need not be a risk, nevertheless it has consequences. And crucially, it remembers that whilst silence may be the ‘right’ of the accused, being-silenced is typically the experience of victims and complainants.

Whereas Weissensteiner ruled that, in some circumstances, it would be adverse for the accused not to explain, contradict or deny facts peculiarly within “the accused’s knowledge”, the feminist judgment regards “the accused’s knowledge” as a needlessly narrow focus for the jury. Instead, the feminist judgment differs from Weissensteiner by looking to all the circumstances of the particular case, and considers whether – given all of those circumstances – an explanation or contradiction would be called for. Further, it is not only the accused’s “knowledge” that ought to be evaluated by the jury, but all of the particularities of the accused. Given RPS’s partial admission, the question What does he know? is too narrow an inquiry. In fact, the jury was also investigating the questions: What did he say? What did he admit? And ultimately What did he do? In the absence of his explanation, the answers to these questions can be gleaned from the prosecution’s case: the evidence of ISW, her mother and her grandmother. It isn’t that he doesn’t have a right to silence; he does, and he cannot be compelled to testify. But his exercise of the right may yield an adverse outcome for him. The feminist judgment recognises that this is a practical, logical and appropriate outcome in these circumstances.

Significantly, the feminist judgment also encourages the jury to consider the particularities of the accuser and of the crime, in deciding whether or not to draw an adverse inference from the accused’s failure to give evidence.

The feminist judgment redefines the fair trial, so that ‘fairness’ is done to all of those in the courtroom, and not only the defendant. It demands that the courts also take account of the interests of the state, victims, witnesses, and society. The feminist judgment opens up the possibility that there may be a feminist perspective to the debate about whether the right to silence unnecessarily privileges the accused.

The feminist judgment provides a ‘model’ jury direction which refers to the jury as “you”. This returns a level of respect and humanity to the trial, and recognises that there is an important dialogue between the trial judge and jurors. There is also a significant omission in the feminist model direction; the direction does not require the trial judge to say words to the effect of “you must dismiss all feelings of emotion or sympathy and prejudice you may feel towards the accused, the complainant and the crime”.

The feminist judgment recognises the importance of context. Context is crucial to understanding what might have happened, what might have been said, what was meant, and what ought to be done about it. Gagging the trial judge prevents the jury from appreciating, and drawing upon, the context in which a crime has occurred. Deciding cases in a factual vacuum, outside of their context, prevents meaningful interpretation of the evidence. The feminist judgment reminds us that context precedes the possibility of justice.


[1] Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 (‘Weissensteiner’).
[2] Evidence Act 1995 (NSW) and Evidence Act 1995 (Cth).
[3] These are the Commonwealth, New South Wales, Victoria, the Australian Capital Territory, and the Northern Territory.
[4] RPS v R [2000] HCA 3; (2000) 199 CLR 620 (‘RPS’) [27] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
[5] The following year in Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50, the court ruled that the circumstances in which Weissensteiner might continue to apply would be “rare and exceptional”: [68] (Gaudron, Gummow, Kirby and Hayne JJ). Another year later, in Dyers v R [2002] HCA 45; (2002) 210 CLR 285, the High Court agreed unanimously that an accused person need not give or call any evidence in their defence, and that judicial directions to the jury need to prevent them from drawing any adverse inference from a defendant’s failure to do so: [9]-[12] and [19] (Gaudron and Hayne JJ), [26]-[27] (McHugh J), [53] (Kirby J), [119] (Callinan J).
[6] RPS [2000] HCA 3; (2000) 199 CLR 620 [41]
[7] RPS [2000] HCA 3; (2000) 199 CLR 620 [22]
[8] RPS [2000] HCA 3; (2000) 199 CLR 620 [19]-[20]
[9] RPS [2000] HCA 3; (2000) 199 CLR 620 [49]. Significantly, and consistent with his distinctive jurisprudence of silence including his dissenting judgment in Weissensteiner, McHugh J seemed to suggest that there is a difference between the jury’s reasoning process (“I see nothing intrinsically wrong with such a reasoning process”)(at [59] and a judicial direction about following that reasoning process (at 59]-[60]). That is, so long as the jury is correctly directed, they can then go ahead and reason that the silence carries some probative weight when deciding facts that have not been explained or contradicted by the accused.
[10] Katherine Biber, ‘On Not Speaking: The right to silence, the gagged trial judge and the spectre of child sexual abuse’ [2005] AltLawJl 5; (2005) 30(1) Alternative Law Journal 19.
[11] Weissensteiner [1993] HCA 65; (1993) 178 CLR 217 [17] (Gaudron and McHugh JJ).
[12] Weissensteiner [1993] HCA 65; (1993) 178 CLR 217 [11]-[14] (Gaudron and McHugh JJ).
[13] For examples, see Biber, above n 10, 22-23, many of which have been consolidated by further superior court rulings also arising from child sexual assault allegations.
[14] Katherine Biber, ‘How Silent is the Right to Silence?’ (2012) 18(3) Cultural Studies Review 148, 149.
[15] Dyson Heydon, long before his elevation to the High Court bench, wrote that drawing inferences from silence was a matter of “logic and common sense”: J D Heydon ‘Silence as Evidence’ [1974] MonashULawRw 4; (1974-5) 1 Monash University Law Review 53, 53. Legal scholar and barrister, Andrew Palmer, wrote that there is “a robust Benthamite common sense” that underlies the reasoning in Weissensteiner: Andrew Palmer ‘Silence in Court: The Evidential Significance of an Accused Person’s Failure to Testify’ [1995] UNSWLawJl 7; (1995) 18(1) University of New South Wales Law Journal 130, 137. Weissensteiner has itself been subjected to criticism: “dangerous precedent”, relying upon “fine distinctions”, “elegant sophistry”, and “gibberish”: all cited in David Hamer ‘The Privilege of Silence and the Persistent Risk of Self-incrimination: Part II(2004) 28(4) Criminal Law Journal, 200, 211.
[16] Biber, above n 14, 163-4.


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