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