4.14 - Silence[1]
4.14.2.1 - Bench Notes: Silence in Response to Equal Parties
Impact of the Uniform Evidence Act
The Evidence Act 2008 does not contain any provisions specifically dealing with the accused’s silence towards people with whom he or she speaks on equal terms.[2] Consequently, common law principles continue to apply in this area.
Once the statement by an equal party is admitted to give context to the accused’s response, the statement is admissible under Evidence Act 2008 s60 to prove the existence of the fact it can reasonably be supposed that the equal party intended to assert. This use of the statement may be limited by Evidence Act 2008 s136.
Right of Silence Does Not Apply to Equal Parties
1. The right to remain silent when questioned or asked to supply information by a person in authority is a fundamental rule of the common law (Petty v R (1991) 173 CLR 95. See Pre-Trial Failure to Respond to People in Authority: Bench Notes).
2. That aspect of the right of silence is designed to prevent oppression by the police or other authorities of the State. It does not encompass silence towards people with whom the accused speaks on equal terms (Petty v R (1991) 173 CLR 95 per Brennan J; R v Alexander [1994] 2 VR 249; R v Brown [2004] VSCA 59).
3. It is therefore possible for an adverse inference to be drawn from the accused’s silence in response to a question asked, or accusation made, by a person other than a police officer or authority figure (see, e.g., R v Salahattin [1983] VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 671; R v Brown [2004] VSCA 59).
When Can an Adverse Inference be Drawn
4. An adverse inference can be drawn from a person’s silence where a statement was made in his or her presence, and in the circumstances an answer would have been expected (Woon v R (1964) 109 CLR 529; R v Salahattin [1983] VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 671; R v MMJ (2006) 166 A Crim R 501).
5. In such circumstances, the jury may infer that by remaining silent, the person:
i) Implicitly admitted the truth of the statement in whole or in part; or
ii) Demonstrated a consciousness of guilt (Woon v R (1964) 109 CLR 529; R v Salahattin [1983] VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 671; R v MMJ (2006) 166 A Crim R 501).
6. These Notes focus on using the accused’s silence for the first-mentioned purpose. See Bench Notes: Incriminating Conduct for information concerning the latter use of the accused’s silence.
Admissibility
7. A statement made in the accused’s presence will only be admissible if, in all the circumstances, it is open to the jury to conclude that:
· The accused heard the statement and had the opportunity to respond;
· The occasion was one in which the accused might reasonably have been expected to respond; and
· By his or her silence the accused has substantially admitted the truth of the statement in whole or in part, or has shown a consciousness of guilt (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501. See also R v Thomas [1970] VR 674; Barca v R (1975) 133 CLR 82; R v Gallagher [1998] 2 VR 671).
8. In most cases, evidence of the statement will be admitted solely to identify the subject matter of the accused’s response (as the statement itself will have little probative value). However, unless a judge limits the use of the evidence under Evidence Act 2008 s136, the statement may be used as evidence of the truth of the facts it can reasonably be supposed the speaker intended to assert (Evidence Act 2008 s60).
9. Evidence of the accused’s silence may be excluded under Evidence Act 2008 ss135 or 137. It may be appropriate to do so where:
· It is not clear precisely what the accused was admitting by his or her silence (see, e.g., R v MMJ (2006) 166 A Crim R 501 per Buchanan JA); or
· The evidence has limited probative value (see, e.g., R v Gallagher [1998] 2 VR 671 per Callaway JA).
Directions
10. The need for a direction depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Bench Notes: Directions Under Jury Directions Act 2015 for information on when directions are required.
11. Where directions are necessary, the judge should instruct the jury about:
· The nature of the statement made in the accused’s presence, and the accused’s response to that statement;
· The expectation that the accused would respond to that statement; and
· The inferences (if any) that could be drawn from the accused’s failure to respond.
Nature of the Statement and Response
12. The jury must determine precisely what statement (if any) was made in the accused’s presence (see, e.g., R v MMJ (2006) 166 A Crim R 501; R v Salahattin [1983] VR 521).
13. Where the timing of the statement is important, the jury may also need to determine approximately when the statement was made (R v MMJ (2006) 166 A Crim R 501).
14. The jury may also need to determine whether the statement contained an implicit allegation against the accused (e.g., that the accused had engaged in inappropriate sexual conduct with the complainant) (R v MMJ (2006) 166 A Crim R 501).
15. Once the jury has determined the nature of the statement made, they will need to determine how the accused responded to that statement (i.e., whether or not he or she remained silent) (R v MMJ (2006) 166 A Crim R 501).
Was a Response Expected?
16. The jury must determine whether the statement called for a response. An inference can only be drawn from the accused’s silence if the circumstances were such that, in ordinary experience, the accused would have been expected to respond to the statement made in his or her presence (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501; Sibanda v R [2011] VSCA 285).
17. This is a question of human experience – of the probability that a person would react in a certain way in particular circumstances (R v Salahattin [1983] VR 521. See also R v Gallagher [1998] 2 VR 671; R v MMJ (2006) 166 A Crim R 501; R v Alexander [1994] 2 VR 249; Sibanda v R [2011] VSCA 285).
18. In determining this issue, the jury must consider all of the circumstances in the case. For example, it may be relevant:
· That although the statement was made in the accused’s presence, it was not made directly to the accused; or
· That the accused was not invited to comment on the statement (see, e.g., R v Thomas [1970] VR 674; R v Salahattin [1983] VR 521).
19. The relationship between the relevant parties may also be relevant. There may have been something in the relationship or relative positions of the parties that precluded the accused from responding (R v Salahattin [1983] VR 521).
What Inference Can Be Drawn from the Accused’s Silence?
20. If the jury finds that the accused failed to respond to a statement in circumstances where a person would ordinarily have been expected to respond, they must then determine what inference (if any) can be drawn from that fact (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).
21. One inference the jury may draw is that the accused, by his or her silence, admitted the truth of the whole or some part of the statement made in his or her presence (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).[3]
22. To draw this inference, the jury must find that by remaining silent in the circumstances, the accused acknowledged the truth of the statement made in his or her presence. In other words, he or she adopted the statement, making it his or her own (Woon v R (1964) 109 CLR 529; R v Thomas [1970] VR 674).
23. The judge must direct the jury that they may only draw this inference if there is no other reasonable explanation for the accused’s silence in the circumstances, and direct them about any other reasons the accused may have had for remaining silent in the circumstances. For example, the accused:
· May not have heard the statement;
· May not have understood the statement;
· May not have had the opportunity to respond to the statement;
· May have been physically, mentally or emotionally prevented from responding to the statement;
· May have been confused by the statement or taken by surprise;
· May have considered the allegation to be unworthy of an answer;
· May have wished to conceal matters which are irrelevant to the case before the court;
· May have lacked confidence in his or her ability to speak English fluently and in a manner capable of being understood; or
· May have believed that he or she should speak only when directly spoken to (see, e.g., R v Thomas [1970] VR 674; R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).
24. Even if the accused had no specific reason for failing to respond, it is for the jury to decide whether or not to infer that he or she had adopted the whole or part of the statement by his or her silence (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).
25. It may be appropriate to direct the jury that people react to allegations in different ways, and that care must be taken when drawing any inferences from the accused’s silence.
26. The jury must determine precisely what the accused was admitting (if anything) by his or her silence (R v MMJ (2006) 166 A Crim R 501).
27. To a large extent, this will depend on the nature of the statement made in the accused’s presence. For example, if the statement did not (explicitly or implicitly) allege that the accused had committed the particular offence with which he was charged, then the accused cannot have admitted his or her guilt of that offence by remaining silent (see, e.g., R v MMJ (2006) 166 A Crim R 501).
Direct the Jury About Possible Uses of the Admission
28. The judge must direct the jury about the ways in which they can use the accused’s admission (R v MMJ (2006) 166 A Crim R 501).
29. This will depend on precisely what the accused admitted by his or her silence. For example:
· If the accused was specifically asked about the offence with which he or she is charged, and the jury finds that by remaining silent the accused admitted his or her guilt of that offence, the jury can use that admission as direct proof of the relevant offence;
· If the accused was asked a question which does not directly relate to the offence with which he or she is charged, such as “have you been sexually involved with the complainant?”, and the jury finds that by remaining silent the accused admitted that he had been sexually involved with the complainant, the jury can only use that as an admission of an improper sexual interest towards the complainant. They cannot use the admission as direct proof of the offence charged (R v MMJ (2006) 166 A Crim R 501).
30. Where an admission can only be used to demonstrate an improper sexual interest in the complainant, the judge may need to:
· Instruct the jury about the limited ways in which evidence of improper sexual interest may be used (see Bench Notes: Tendency Evidence); and
· Tell the jury that such evidence cannot be used in direct proof of the charged offence (R v MMJ (2006) 166 A Crim R 501).
31. The judge should direct the jury that they may only use the admission in the relevant way if they are satisfied that it is true (R v MMJ (2006) 166 A Crim R 501).
Other Directions
32. The judge may need to warn the jury under Jury Directions Act 2015 s32 that evidence of admissions may be unreliable. See Bench Notes: Unreliable Evidence Warnings: General Principles for further information.
33. Where the judge limits the use of the evidence under Evidence Act 2008 s136 (see above), the judge may need to direct the jury that:
· The statement provides no evidence of the truth of the allegation made or of the facts asserted in the statement;
· The evidence consists of the accused’s reaction to the statement by way of silence;
· The statement was admitted only because it introduced or explained the accused’s conduct on hearing that statement;
· If they do not find that the accused, by his or her silence, made an admission, they must wholly disregard the statement; and
· If they find that the accused only accepted part of the statement made to him or her, then they must disregard the other parts of the statement (see, e.g., R v Grills (1910) 11 CLR 400; R v Thomas [1970] VR 674; Barca v R (1975) 133 CLR 82; R v MMJ (2006) 166 A Crim R 501)
34. Where the jury are asked to draw an inference from the accused’s silence that he or she admitted the truth of part or all of the statement, the evidence is relevant as an implied admission. The prosecutor and the judge will need to comply with Division 1 of Part 4 of the Jury Directions Act 2015. See Bench Notes: Incriminating Conduct (c.f R v MMJ (2006) 166 A Crim R 501).
35. If the prosecution has improperly suggested that the jury can reason that the accused remained silent out of a consciousness of guilt, the judge may need to direct them not to do so (Jury Directions Act 2015 ss16, 23; R v MMJ (2006) 166 A Crim R 501).
2
[1] This document was last updated on 29 June 2015.
[2] Section 89 addresses silence towards investigating officials: see Silence in Response to People in Authority for further information.
[3] The jury may also be able to infer a consciousness of guilt from the accused’s silence. See Bench Notes: Incriminating Conduct for further information.