Evidence of silence

...that right to silence (in the sense of being a right to refuse to answer questions asked by an investigating official) is worth nothing if a jury can then reason that the accused exercise their right to silence only because they were guilty of the offence charged.

There can be no doubt that the common law affords a person an absolute right to silence.

As the below authorities observe, however, that right to silence (in the sense of being a right to refuse to answer questions asked by an investigating official) is worth nothing if a jury can then reason that the accused exercise their right to silence only because they were guilty of the offence charged.

Moreover, s20(2) of the Evidence Act 1995 expressly forbids the making of any such comment:

The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

It is therefore necessary that the jury be expressly reminded of this right, and that the judge explain that any such line of reasoning is impermissible.

The bench book provides a comprehensive suggested direction:

[The accused], as you are aware, chose not to answer questions put to [him/her] by the police at the time of [his/her] arrest. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told [the accused] when [he/she] was asked if [he/she] wanted to answer their questions. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.

In this case, it would be quite wrong if [the accused], having listened to what the police said, and having decided to exercise [his/her] right to silence, later found that a jury was using that fact against [him/her]. You must not do that of course. It is important, therefore, that you bear in mind that [the accused’s] silence cannot be used against [him/her] in any way at all. The fact that [he/she] took note of the caution given by the police and chose to remain silent cannot be used against [him/her]. Under our law, an accused person has a right to silence

 

Petty & Maiden

Petty & Maiden v R [1991] HCA 34

“A person who believes on reasonable grounds that he or she is 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, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. 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 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”