4.14 - Silence[1]
4.14.1.1 - Bench Notes: Silence in Response to People in Authority
Change and ContinuityThe common law prohibition on drawing adverse inferences against the accused by reason of his or her failure to answer questions asked by a person in authority has been largely reflected in Evidence Act 2008 s89.
The common law prohibition has not been abrogated and continues to apply.
Both s89 and the common law prohibit inferences of consciousness of guilt and inferences relevant to the accused’s credibility being drawn from pre-trial silence. They also both prohibit adverse inferences being drawn from selective silence.
Adverse inferences also cannot be drawn from the failure to raise a defence at an earlier time. However, there may be other consequences if the accused fails to comply with the pre-trial disclosure requirements contained in the Criminal Procedure Act 2009.
The common law obligations about when to direct the jury about the accused’s pre-trial silence, and the content of the direction, remain in place.
Scope
1. These Notes address the directions which may be required when, prior to trial, a person exercises the right to remain silent when questioned or asked to supply information by a person in authority.
2. Similar issues are addressed in the following Bench Notes:
· Silence in Response to Equal Parties;
· Defence Failure to Call Witnesses.
Right to Remain Silent When Questioned by Authorities
3. 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).
4. This aspect of the right of silence is designed to prevent oppression by the police or other authorities of the State (Petty v R (1991) 173 CLR 95 per Brennan J; Harman v The State of Western Australia [2004] WASCA 230).
No Adverse Inference May be Drawn
5. At common law it has been held that one consequence of this right is that no adverse inference can be drawn against the accused by reason of his or her failure to answer questions asked by a person in authority, or to supply information to such a person. To draw such an inference would be to erode the right or to render it valueless (Petty v R (1991) 173 CLR 95. See also Woon v R (1964) 109 CLR 529; R v McNamara [1987] VR 855).
6. This aspect of the right of silence has been given legislative form by Evidence Act 2008 s89 (R v Tang (2000) 113 A Crim R 393). However, the common law continues to apply (R v Anderson [2002] NSWCCA 141; R v Stavrinos (2003) 140 A Crim R 594).
7. Although there are some minor differences in scope and content, s89 and the common law largely overlap (R v Coe [2002] NSWCCA 385; R v Matthews NSW CCA 28/5/96).
8. The right to silence has been restricted in some ways by the Criminal Procedure Act 2009. See “Pre-Trial Disclosure Requirements” below for further information.
Scope of the Prohibition Against Adverse Inferences
9. The statutory prohibition on drawing adverse inferences from a person’s pre-trial silence applies to criminal proceedings in which:
· A party or other person failed or refused to answer one or more questions, or to respond to a representation; and
· The question or representation was put or made by an investigating official[2] who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence (Evidence Act 2008 s89(1)).
10. By comparison, the equivalent common law prohibition applies whenever a person is suspected, or believes on reasonable grounds that he or she is suspected, of having been a party to an offence (Petty v R (1991) 173 CLR 95).
11. As s89 prohibits unfavourable inferences being drawn against a party where any person fails or refuses to answer a question asked by a relevant party, in some circumstances it can prevent an adverse inference from being drawn against a witness other than the accused (e.g., a defence witness who gave a statement to the police, but failed to mention something later raised in court) (see, e.g., Jones v R [2005] NSWCCA 443).
12. As there is significant overlap between the scope of s89 and the common law, in most cases where a person exercises his or her pre-trial right of silence, adverse inferences will be prohibited on both grounds.
Content of the Prohibition Against Adverse Inferences
13. There are two main consequences of the pre-trial right to silence:
i) Adverse inferences may not be drawn from the failure to answer questions asked by people in authority; and
ii) Adverse inferences may not be drawn from previous silence about a defence raised at trial (Petty v R (1991) 173 CLR 95).
Failure to Answer Questions
14. Evidence Act 2008 s89(1) provides that no unfavourable inferences can be drawn against a party from a person’s failure or refusal to answer questions put by an investigating official, or to respond to the official’s representations.
15. Section 89 prohibits all unfavourable inferences, including inferences of consciousness of guilt and inferences relevant to a party’s credibility (Evidence Act 2008 s89(4)). This reflects the common law (see, e.g., Petty v R (1991) 173 CLR 95).
Failure to Raise a Defence
16. Previous silence about a defence raised at the trial cannot provide a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable (Petty v R (1991) 173 CLR 95; R v Stavrinos (2003) 140 A Crim R 594; Sanchez v R [2009] NSWCCA 171).[3]
17. This stems from the rule that it is never for an accused person to prove his or her innocence. To allow that an explanation might be judged false because it was not put forward before trial is, in effect, to allow the burden of proving guilt to be more readily discharged because the accused did not signal the precise basis of his or her innocence (Petty v R (1991) 173 CLR 95).[4]
18. The prohibition against drawing an inference of recent invention applies even if:
· The accused bears an evidential burden in relation to the defence;
· The accused was not specifically asked about the matter which is the subject of the defence, or was asked no questions at all;
· The accused answered questions about other matters;
· The defence was not raised at the committal proceedings; or
· The accused only raised the facts giving rise to the defence after the close of the prosecution case (Petty v R (1991) 173 CLR 95; Sanchez v R [2009] NSWCCA 171).
Previous Inconsistent Accounts
19. While Evidence Act 2008 s89 and the common law both prohibit adverse inferences being drawn from silence, they do not prevent adverse inferences being drawn in cases where the accused has previously told a contrary story. The jury is entitled to draw whatever inferences are reasonably open from the responses actually made by the accused (Petty v R (1991) 173 CLR 95; R v Gonzales-Betes [2001] NSWCCA 226; Sanchez v R [2009] NSWCCA 171).
20. Thus, where the accused chooses to break his or her silence and give an explanation before trial that is inconsistent with the account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused’s credit and as demonstrating a consciousness of guilt (Jones v R [2005] NSWCCA 443; Van der Vegt v R [2016] NSWCCA 279 at [13], [40]-[41]).
21. Similarly, where the accused gives an account which is inconsistent with the case presented at trial, and fails to withdraw that account until the time of trial, evidence of the accused’s failure to withdraw the account is relevant and admissible. It can constitute a denial by conduct of the defence raised at trial (Petty v R (1991) 173 CLR 95). See also Bench Notes: Previous Representations (Hearsay, Recent Complaint and Prior Statements).
Selective Silence
22. No adverse inference can be drawn from the fact that the accused answered some questions but did not answer others (R v McNamara [1987] VR 855; R v Towers NSW CCA 7/6/93; Yisrael v District Court of New South Wales (1996) 87 A Crim R 63; R v Barrett (2007) 16 VR 240. See also Evidence Act 2008 s89(1)(a)).
23. By answering some questions, the accused does not waive his or her right of silence. He or she does not assume any obligation to provide information to the police (R v Stavrinos (2003) 140 A Crim R 594).
24. The accused’s selectiveness in answering questions therefore cannot demonstrate a consciousness of guilt (R v McNamara [1987] VR 855; R v Towers NSW CCA 7/6/93; Yisrael v District Court of New South Wales (1996) 87 A Crim R 63; R v Barrett (2007) 16 VR 240).
25. However, the answers the accused gives may be used, and can be considered as a whole, in the context of his or her refusal to answer other questions (Woon v R (1964) 109 CLR 529; Yisrael v District Court of New South Wales (1996) 87 A Crim R 63; R v Towers NSW CCA 7/6/93).
26. The jury can draw adverse inferences from the answers that were given, but cannot draw any inferences from the questions that were not answered (R v Barrett (2007) 16 VR 240).
27. As the accused is under no obligation to give notice of his or her defence prior to trial, a failure to proffer an explanation cannot be relied upon as a basis for an inference of guilt or as adversely affecting the credibility of a defence (R v Makin (1995) 120 FLR 9).
28. However, where the accused gives a detailed account of events to the police, the jury may be able to infer a consciousness of guilt from the conscious omission of certain details (R v Cuenco (2007) 16 VR 118; R v Russo [2004] VSCA 206; De Marco 26/6/1997 CA Vic).[5] See Consciousness of Guilt: Bench Notes for further information.
Pre-Trial Disclosure Requirements
29. In Victoria, some limitations have been placed on the right of silence by the pre-trial disclosure requirements of Part 5.5 of the Criminal Procedure Act 2009. For example:
· If the prosecution has served on the accused a summary of its opening, the accused must serve on the prosecution (and file in court) a response to the summary, which identifies the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken (s183);
· If the prosecution has served on the accused a notice of pre-trial admissions, the accused must serve on the prosecution (and file in court) a response to the notice, which indicates which evidence set out in the notice is agreed and which evidence is in issue, and the basis on which issue is taken (s183);
· If the accused intends to call a person as an expert witness at the trial, he or she must file a copy of the witness’s statement with the court, and serve a copy on the prosecution, within a certain timeframe (s189);
· If the accused intends to give or adduce evidence of an alibi, he or she must notify the DPP of that fact within a certain timeframe (s190).
30. If the accused fails to comply with the pre-trial disclosure requirements contained in the Criminal Procedure Act 2009:
i) He or she may be prevented from giving or calling certain evidence (see, e.g., ss190, 233);
ii) His or her response to the prosecution’s opening address may be restricted (s225(2)); or
iii) The judge or a party may comment on the breach (s237).[6]
31. Any comment made by the judge must be relevant, permitted by another Act or a rule of law and must not be unfairly prejudicial (Criminal Procedure Act 2009 s237).
When Can Evidence of Silence Be Admitted?
32. Evidence that a person failed to respond to a person in authority, or failed to raise some defence or matter of explanation, will generally be inadmissible. Such evidence is usually not probative of any relevant fact or circumstance (in light of the fact that the accused has a right to remain silent, and no adverse inferences can be drawn from his or her exercise of that right) (Petty v R (1991) 173 CLR 95; Bruce v R (1987) 74 ALR 219; R v Ireland (1970) 126 CLR 321; R v McNamara [1987] VR 855. See also Evidence Act 2008 ss56, 89(2)).
33. However, evidence that the accused exercised the right of silence can be admitted if there is a legitimate purpose for admitting the evidence (R v Reeves (1992) 29 NSWLR 109; R v Astill NSW CCA 8/7/92; R v Coyne [1996] 1 Qd R 512).
34. For example, evidence that the police put the prosecution’s version of the facts to the accused, and gave him or her the opportunity to answer them, may be admitted to meet an anticipated criticism of the fairness of the investigating police officers’ conduct (R v Reeves (1992) 29 NSWLR 109; R v Hartwick Vic CCA 20/12/95; Wilson v County Court of Victoria (2006) 14 VR 461).
35. In such circumstances, the accused’s silence can only be used to counter the allegation of inadequate investigation. It cannot be used to demonstrate a consciousness of guilt or as the basis of a claim of recent invention (Wilson v County Court of Victoria (2006) 14 VR 461).
36. Evidence of the accused’s pre-trial silence may also be admitted where the failure or refusal to answer a question is a fact in issue in the proceeding (e.g., where it is a criminal offence for the accused to refuse to respond to a question by an investigating official) (Evidence Act 2008 s89(3)).