The direction is as follows (continued on from part 2) –
FAILURE TO MENTION FACTS TO INVESTIGATING POLICE
The defendant, as part of his defence, has relied upon…
[The prosecution case is]
[He admits] that he did not mention that fact [when he was questioned under caution before being charged with the offence][when he was charged with the offence][when he was officially informed that he might be prosecuted for the offence].
The prosecution case is that in the circumstances when he was [charged][questioned][informed], he could reasonably have been expected then to mention it.
If you are sure that he did fail to mention… when he was [charged][questioned][informed], decide whether in the circumstances it was a fact which he could reasonably have been expected to mention. If it was, the law is that you may draw such inferences as appear proper from his failure to mention this matter at the time.
Failure to mention such a fact cannot, on its own, prove guilt, but depending on the circumstances, you may hold it against him when deciding whether he is guilty, that is, take it into account as some additional support for the prosecution’s case. You are not bound to do so. it is for you to decide whether it is fair to do so.
There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this. That evidence is […]. If you think that this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if you are sure that the real reason for his failure [to mention this fact] was that he then had no innocent explanation to offer, you may hold it against him.
When you look into the detail of this apparently simple section, it becomes a minefield which will probably occupy the Court of Criminal Appeal and High Court for years to come.
S.89A(1)(a) deals with a defendant failing or refusing to mention a fact.
Failure to mention something could well arise from a number of factors including stress, negative, uncooperative, fearful or distrustful attitude toward police. There may be cultural characteristics that affect the person’s response.
In its 2000 report, (which incidentally recommended against this new provision) the Law Reform Commission had this to say at 2.116 –
“2.116 It is reasonable that innocent persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure, especially where the circumstances appear suspicious but it cannot be assumed that they are rational and articulate. In many cases, suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced, confused or frightened or a combination of these. They may be unable to do themselves justice. Such persons may be well advised to hold their peace, at least at an early stage. They may, of course, have something to hide, but that something may simply be shameful and not a crime, or it may implicate others for whom they feel responsible. The supposition that only a guilty person has a reason for not speaking freely to investigating police is an unreasonable assumption.”
The Police Station can be a very daunting and unwelcoming place, particularly for a person who has been arrested by police, handcuffed and perhaps roughly handled. Tempers can be frayed and a person not in any condition to be subjected to a lengthy line of questioning, let alone having to address what might be put up as a defence, should he be charged and should he obtain a lawyer.
One thing lawyers might have noticed over the last 20 years to have changed substantially is the method of questioning. Police consistently cross-examine suspects now. This was never tolerated in years past and should not be tolerated now. The trouble is, that it is intermingled with acceptable questions, and creates a major difficulty in excising the “acceptable” from the “objectionable”.
Lawyers should be mindful that Police questioning should be just that and not cross-examination or leading with questions like “do you recall?” (Form of questioning unfair – Brian Leslie Wills (1985) 16 A Crim R 247).
It is unfair questioning and cross examination that give rise to justifiable objection to suspects submitting to a record of interview.
Some interesting arguments that might arise
1. A person is charged with a Commonwealth offence and a State offence rising out of the same circumstances. (eg. Use Carriage Service to ccess child pornography and Possess Child Abuse material). He is put on trial in respect of both charges on a single indictment. The Police want to interview him and he exercises his right to silence. Can the Jury be instructed that they can draw a negative inference in him not answering Police questions. (Evidence Act (Cth) v Evidence Act (NSW). )
2. A person is charged with a common law offence (eg. Manslaughter on Commonwealth property) which is part of the common law of NSW as equally as it is of the Commonwealth. Does the Commonwealth Evidence Act or the State Evidence Act apply, regardless of who prosecutes it so far as the question of the right silence is concerned.
3. A person is charged with historical offences which predate the change of the law. The police lay some charges before the change of the law and some other charges after the change of the law. If Police want to interview the accused in respect of the second lot of allegations, but have previously released the accused to bail, is there power to arrest for further interviewing and putting the “special caution”. (s.99(3) LEPRA)