History of the Right To Silence laws
The Right to Silence goes somewhat hand in hand with the Presumption of Innocence.
It is a well known principle that the prosecution must prove its case – it is not for the accused to prove his innocence. Unfortunately, this legislation drives a wedge into this presumption. It is probably the “thin end of the wedge” and we may well see a lot more changes ever so gradually make their way into the laws of this State with a view to securing more convictions.
The requirement for a person to answer questions of Police, effectively puts paid to such adages as “the onus is on the prosecution” and “the accused doesn’t have to prove a thing”. Well clearly, this legislation does require the accused to prove his innocence if his silence can be construed negatively against him. This is of major concern.
The history first developed in England, since the 16th Century. When a suspect was brought before an examining Justice for interrogation as soon as possible after his arrest, his treatment by them was questionable. Various means were adopted to exact “the truth” and as time went by, so developed a “judicial distrust” of the investigative techniques employed by examining justices.
Later with the development of a Police Force in 1829, so did the functions of investigation, and within two decades, the judicial and investigatory functions became separated with the Police given the exclusive role of “interrogation” of suspects.
By the turn of the 20th Century, Judge’s Rules were issued by Judges of the Kings Bench and so began the “caution” and that a suspect was entitled to remain silent.
By 1978, what we call the Judge’s Rules was adopted by the English Home Office, resulting in there being no adverse inference to be drawn by the tribunal of fact where the defendant didn’t answer police questioning.
This law was adopted by New South Wales, and has been so for the better part of the 20th Century and since. It was enacted into S.89 of the Evidence Act 1995, and apart from it being now “subject to section 89A” remains substantially the same and states –
89 Evidence of silence generally
(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:
(a) to answer one or more questions, or
(b) to respond to a representation,
put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.
(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.
(4) In this section:
(a) an inference of consciousness of guilt, or
(b) an inference relevant to a party’s credibility.
With the introduction of s.89A comes difficulties in interpretation and application of the Section.
For instance, this section only applies to a “serious indictable offence”.
There is no definition of “serious indictable offence” in the Evidence Act, so we must look at the Crimes Act where it defines such as – “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.”
Does this only apply to State offences? What of Commonwealth Offences? The Evidence Act (Cth) hasn’t included this section. Also, what happens when there is a combination of State and Federal Offences?
Further, what happens when a Police officer is investigating what might appear to be (in the early stages of investigation) a minor offence. He gives the s.89 caution. The suspect maintains his right to silence and perhaps is charged and goes his way. Later, a more serious matter comes to light. Can the Police officer then call him back in and then caution him pursuant to s.89A?
What about s.99(3) of LEPRA? The accused is already before the Court, charged with an offence. He can’t be arrested for questioning and compliance with s.99(3) must be maintained.
So, herein is a major problem with this provision and it seems little thought has gone into it. How and where does the Police officer administer the s.89A “special caution”.
Further difficulties exist within the following clauses –
“unfavourable inference” “as appear proper”, “failing or refusing to mention a fact”, “could reasonably have been expected to mention”, “in the circumstances existing at the time” and “relied on in his defence”.
Generally, a suspect is what we call a “lay person”. He or she may come from a variety of backgrounds and ethnic persuasions. Some people are more vulnerable than others
S.89A(1) allows “someone” to draw “such unfavourable inferences” – “as appear proper”. This would require a direction from the presiding judge to the jury. How is the judge to approach it.
Can a judge tell a jury that they can or can’t draw such unfavourable inference. Is it within his power to do such? In other words is there any discretionary provision in the Evidence Act or elsewhere, allowing for the exercise of such? What is meant by “unfavourable inference”. Is it a consciousness of guilt or is it an inference there has been a recent invention?
Further, how is it determined whether it is “proper” for the Jury to draw such unfavourable inference.
The other clauses such as “failing or refusing to mention a fact” that “the defendant could reasonably have been expected to mention..” etc are of concern.
The accused person probably doesn’t know the full case against him at the questioning stage. Neither does he know what course the whole matter will take, let alone know whether it might be something that his lawyer will later rely on for his defence. However, this legislation may well allow for an unfavourable inference to be drawn because of his “failure” or “refusal” to mention something purely out of ignorance or forgetfulness at the time.
Given that this law is somewhat derived from the UK, we can probably obtain assistance from the model that has the approval of the Court of Appeal in England and Wales, (R v Cowan  4 All ER 939; Condron v The Queen  1 WLR 827)