3.1 The right to silence when questioned by police is universally recognised in common law jurisdictions, including New South Wales. No jurisdiction governed by rule of law makes it an offence to remain silent in response to police questions. In New South Wales trials, both the judge and the prosecution are prohibited from commenting on the exercise of this right. However, the law in relation to comment at trial on the exercise of this right has been modified in other jurisdictions. This chapter examines the right to silence when questioned by police in New South Wales and reforms in other jurisdictions. The chapter considers the arguments for and against reform of the law prohibiting comment on the exercise of the right to silence.
THE LAW IN NEW SOUTH WALES
3.2 It is not an offence to refuse to answer questions, including incriminating questions, asked by other persons or bodies.1 At trial, both the judge and the prosecution are entitled to comment on the defendant’s silence in the face of an accusation made by another member of the public. The reasonableness of interpreting silence adversely to the defendant depends on the circumstances, including the relationship between the defendant and the accuser, the seriousness of the accusation, the situation in which the accusation was made and how specific the accusation was. 2
The right to silence when questioned by police
3.3 A person who believes on reasonable grounds that he or she is suspected of having committed a criminal offence has the right to remain silent when questioned by a person in authority about the offence. At trial, neither the judge nor the prosecution can comment to the jury on the exercise of this right. This position applies throughout Australia as a result of the decision of the High Court in Petty v The Queen.3
3.4 Evidence of police interrogation which discloses that the defendant exercised the right to silence when questioned by police is admissible at trial in certain circumstances.4 The New South Wales Court of Criminal Appeal has held that it is reasonably foreseeable that the defence may criticise the fairness of the conduct of the investigating police officers. The fact that the defendant was asked questions by the police is admissible to meet this anticipated criticism. As a corollary, the answers given are also admissible.5 Immediately after evidence of this type is given, the trial judge is required to direct the jury that the defendant is entitled to remain silent and that the jury must not conclude that the defendant is guilty from the exercise of the right.6
3.5 Where the defendant has participated in the police interview and answered some questions but refused to answer others, in certain circumstances the whole record of interview, including the questions which the defendant refused to answer and the refusals themselves, is admissible at trial. The judge must not direct the jury that selective answering of questions can give rise to an inference of guilt. However, the jury is entitled to regard the demeanour of the defendant during the interrogation as evidence of guilt.7
3.6 If the defendant exercised the right to silence when questioned by police, the trial judge is entitled to exclude evidence of admissions made voluntarily by the defendant to a witness who the defendant does not realise is an undercover police officer. The High Court has held that in this situation, the confession evidence should be excluded because it was effectively obtained in violation of the right to choose whether or not to speak to the police. In R v Swaffield and Pavic, Brennan CJ stated that there is a public interest in ensuring that the police do not adopt tactics designed to avoid the limitations on their inquisitorial functions.8
3.7 The High Court has also held that the privilege against self incrimination is only available to natural persons. The privilege does not extend to corporations.9 Several members of the Court expressly described the privilege against self incrimination as one of the group of rights and immunities covered by the expression “the right to silence”.10
3.8 The position in New South Wales is further clarified by the Evidence Act 1995 (NSW) s 89, which provides:
3.9 Section 89 substantially reflects the common law position stated by the High Court in Petty v The Queen.12
3.10 The operation of s 89(2) is illustrated by the offence of failing to furnish information under the Traffic Act 1909 (NSW).13 This offence is committed when a driver fails to produce his or her licence or provide his or her name or address when required to do so by a police officer. The nature of this offence makes failure to answer questions a fact in issue in the proceedings.
3.11 The International Covenant on Civil and Political Rights recognises the right not to be compelled to confess guilt as part of the right to a fair trial.14
Statutory abrogation
3.12 The right to silence when questioned by police has been modified in different ways by numerous statutes. For example, as discussed in paragraph 3.10 above, drivers are required to produce their licence and provide their name and address when required to do so by a police officer. Non-compliance with this requirement is an offence. A bankrupt person must answer all questions at an examination under the Bankruptcy Act 1966 (Cth).15 This Act expressly states that answers given at an examination may be used in evidence in any bankruptcy proceedings involving the person.16 It is an offence for a witness at a hearing before a Royal Commission to refuse to answer any question relevant to the inquiry put by any of the Commissioners.17 It is also an offence for a witness to refuse to answer questions without reasonable excuse during an investigation by the Australian Securities Commission18 or National Crime Authority19 although witnesses receive an immunity preventing their answers from being used as evidence.20 Under the Evidence Act 1995 (NSW), the court can excuse a witness from giving evidence, in the interests of justice, on the ground that the evidence may prove that the witness has committed an offence.21 Alternatively, the court can require the witness to give evidence but give the witness a certificate stating that the evidence cannot be used against the person.22
Other police powers
3.13 At common law, a police officer may lawfully search the body of a person under arrest if the search is reasonably believed to be necessary for the purpose of discovering a concealed weapon, or to secure or preserve evidence with respect to the offence for which the person is in custody.23 At common law a person may also be finger printed for the purpose of identification.24 In New South Wales, these common law powers are enhanced by legislation which provides that police officers may search any person in lawful custody and take anything found during the search.25 Police officers are permitted to take all particulars necessary for the identification of suspects in lawful custody, including their photograph, finger prints and palm prints.26 When a suspect has been charged with an offence, police officers are empowered to direct a doctor to conduct a medical examination of the suspect. This can include taking samples of the person’s blood, saliva and hair. This can only be done where the police officer reasonably believes that the examination will provide evidence.27 The consent of the person in custody is not required for the exercise of these powers.28
Concealing serious offences
3.14 If a person has committed a serious offence and another person knows or believes that the offence has been committed, and that he or she has information which might assist with the apprehension, prosecution or conviction of the offender, it is a criminal offence to conceal that information from the police without a reasonable excuse.29 It is not clear whether a suspect questioned by police is entitled to rely on the right to silence to avoid the obligation to provide information to the police imposed by this offence. There is authority that the right to silence when questioned by police prevailed over the common law offence of misprision of felony30 which was replaced by the statutory offence of concealing a serious offence.31 There is no case law on the relationship between the right to silence when questioned by police and the statutory offence, although a similar attitude would be expected to be taken. The Commission is currently examining whether there is a need for reform of this offence.32
The obligation of police officers to provide information to citizens
3.15 Uniformed New South Wales police officers are required while on duty outside police premises to wear a name plate or numerical identification.33 Police officers also carry identification which is to be produced when necessary to establish their identity.34
OTHER JURISDICTIONS
3.16 The right to silence when questioned by police is recognised in all Australian jurisdictions and common law countries. The prohibition on judicial and prosecution comment on the defendant’s exercise of the right to silence when questioned by police also applies throughout Australia.35 However, other jurisdictions have qualified this prohibition.
3.17 In criminal trials in the United Kingdom and Singapore, the court or jury is permitted to draw inferences from the defendant’s failure, when questioned or charged, to mention a fact later relied on in defence which the defendant could reasonably have been expected to mention when questioned.36 The court or jury is not permitted to draw inferences from the defendant’s silence itself. An inference can only be drawn when the defendant relies on a fact, as part of the defence, which the defendant unreasonably failed to tell police during questioning.37
3.18 The English Court of Appeal has noted that, before a jury can draw inferences from the defendant’s silence when questioned by police, several conditions must be met. Proceedings must have commenced. The defendant’s alleged failure to mention facts must have occurred after the defendant had been cautioned and before the defendant had been charged, during questioning to establish whether or by whom the offence had been committed. The alleged failure must be a failure to mention a fact relied on in defence. Finally, it must be reasonable to expect the defendant to mention the fact in the circumstances, including the defendant’s age, experience, health, mental capacity, personality and state of mind.38
3.19 This provision has been interpreted widely by the Northern Ireland courts. The Belfast Crown Court has held that unfavourable inferences may be drawn where the defendant initially fails to mention the relevant fact but discloses it later during police questioning.39 The Court has also held that it is not necessarily reasonable for a suspect to fail to mention a fact on the basis of legal advice to remain silent. The question of whether a defendant could reasonably have been expected to mention a fact is decided objectively, regardless of “ill-judged legal advice”.40 The English Court of Appeal has also held that the fact that the defendant exercised the right to silence on legal advice does not alone prevent the trial judge from directing the jury to draw adverse inferences.41
3.20 The court or jury is also permitted to draw adverse inferences when the defendant fails, when requested by police, to account for objects, substances or marks connected with the defendant which the police reasonably believe are attributable to participation in an offence,42 and when the defendant fails, when requested by police, to account for his or her presence at a place and time which the police reasonably believe is attributable to participation in an offence.43
3.21 In each case, the court or jury is entitled to draw “such inferences as appear proper”.44 A defendant must not be convicted solely on the basis of an inference drawn from the defendant’s silence.45 However, the relevant provisions provide no other guidance as to the types of permitted inferences.
3.22 The courts in Northern Ireland were initially cautious about drawing strong adverse inferences.46 However, more recently, the Belfast Crown Court has drawn stronger inferences as a result of the defendant’s failure to answer police questions. In R v McLernon,47 the trial judge, Lord Justice Kelly, drew an inference from the defendant’s silence when questioned by police that no innocent explanation was available to him. He held that, in certain cases, the silence of the defendant in response to police questions may, without more, increase the weight of a prima facie case to the weight of proof beyond reasonable doubt. In considering the inferences open to the court, Lord Justice Kelly applied a “common sense” test, stating that “(i)t would be improper and unwise for any court to set out bounds on whether to draw inferences or not in an individual case and the nature, extent and degree of adversity if it decides to draw inferences”.48
3.23 Subsequently, the European Court of Human Rights upheld the decision of Lord Justice Kelly in Murray v United Kingdom to draw very strong unfavourable inferences from the defendant’s silence when questioned by police using the “common sense” test.49 The Court held that the inferences drawn by Lord Justice Kelly did not deprive the defendant of a fair trial under the European Convention on Human Rights (“the Convention”) in the circumstances of the case. The Court stated that the right to silence is an inherent element of the right to a fair trial guaranteed by the Convention. It would be inconsistent with the right to a fair trial to convict a defendant solely or mainly on the basis of the defendant’s silence. However, where a situation clearly calls for explanation, the Court can take into account the defendant’s silence in assessing the prosecution evidence.50 Where a prima facie case exists against the defendant independently of adverse inferences from the defendant’s silence, this direct evidence combined with legitimate inferences could lead a jury to be satisfied beyond reasonable doubt that the defendant is guilty.51
3.24 The English Court of Appeal has approved a specimen direction to juries in relation to the inferences which can be drawn from the defendant’s refusal to answer police questions.52 The Court of Appeal has also held that the power to comment extends to cases where the defendant exercised the right to silence before the commencement of the legislation which modified the right to silence.53
Serious Fraud Office
3.25 In 1987, England established a separate scheme for the investigation, charging and trial of serious and complex fraud by the newly established Serious Fraud Office.54 The Serious Fraud Office is empowered to investigate any suspected offence which it reasonably believes involves serious or complex fraud.55 The Director of the Serious Fraud Office can compel anyone under investigation or any person reasonably believed to have information relevant to an investigation to answer questions.56 Non-compliance is an offence unless the person has a reasonable excuse.57 However, witnesses are protected by an immunity which provides that their answers may only be used in evidence if they are charged with making a false statement during an investigation,58 or if they are charged with an offence and give evidence at trial which is inconsistent with the answer given to the Serious Fraud Office.59
REFORM OF THE RIGHT TO SILENCE WHEN QUESTIONED BY POLICE
3.26 Arguments for reform of the right to silence when questioned by police focus on permitting judicial comment on the inferences which the jury is entitled to draw from the fact that the defendant has exercised the right. The assessment of the arguments for reform in the United Kingdom has been informed by a substantial body of empirical research on the use of the right to silence when questioned by police. Although there are definitional and other methodological problems with the existing empirical research,60 both the Royal Commission on Criminal Procedure61 and the Royal Commission on Criminal Justice62 considered that rational decision making is enhanced by consideration of such evidence of the operation of the law in practice.63 Three research studies on reliance on the right to silence when questioned by police have been undertaken in Australia. The results of these studies as well as overseas research are referred to below as part of the Commission’s assessment of the case for reform.
Arguments for reform
3.27 The arguments for permitting the trial judge to comment on the fact that the defendant exercised that right to silence when questioned by police focus on the misuse of the right by guilty suspects, the relevance of silence to determining whether the defendant is guilty, the existence of other safeguards for defendants and the need to regulate the use made of silence by juries.
Used by guilty suspects
3.28 Many submissions argued that an innocent person would deny an accusation levelled by the police and offer an explanation for the circumstances or conduct which created the suspicion. It is argued that the right to silence when questioned by police is exploited by guilty suspects, impeding police investigation of offences and the prosecution and conviction of offenders, particularly in relation to offences which rely heavily on admissions to prove all the necessary elements, such as possession offences and sexual offences.64 This can obviously be no more than a matter of opinion. It is impossible, in the nature of the case, to do more than guess at the motives and processes of reasoning of persons questioned by police. It seems reasonable to accept that guilty persons will have a powerful reason not to be candid. However, the question does not seem to be so much whether the right to silence is used by guilty suspects. Rather, the question is the way in which it may be utilised by innocent suspects.
3.29 Three Australian research studies have examined the right to silence when questioned by police. The first, conducted by the New South Wales Bureau of Crime Statistics and Research in 1980, concluded that 4% of suspects subsequently charged and tried in the Sydney District Court remained silent in police interviews.65 The second, undertaken by the Victorian Office of the Director of Public Prosecutions in 1988, found that the right to silence was exercised in just over 7% of prosecutions.66 The third, carried out in 1989 by the Victorian Office of the Director of Public Prosecutions, found that the right to silence was exercised in just over 9% of prosecutions.67 The results of this research indicate that the right to silence when questioned by police is not widely exercised,68 suggesting that modifying the right to silence would not significantly increase prosecutions or convictions.
3.30 Estimates of the percentage of suspects who remain silent during police interrogation in research conducted in England and Northern Ireland vary between 3% and over 50%.69 Studies which have relied on police reporting of reliance by suspects on the right to silence have concluded considerably higher rates of use than those which use other means of data collection, such as independent analysis of records of interview.70
3.31 Two studies on reliance on the right to silence when questioned by police in Singapore have concluded that the right was rarely exercised by suspects and that modification of the right to silence did not materially induce suspects to answer police questions.71
3.32 According to some studies, the incidence of reliance on the right to silence before trial in England has increased since the introduction of reforms designed to improve suspects’ awareness of their right when interviewed by police.72 However, this is not universally accepted.73
3.33 The available empirical data suggests that reliance on the right to silence does not reduce the likelihood of charges being laid against suspects, the likelihood of defendants pleading not guilty, or acquittal at trial. Some research studies suggest that the likelihood of a suspect being charged and convicted increases where the suspect exercises the right to silence.74
Serious offences
3.34 Proponents of reform argue that the right to silence when questioned by police is exploited by suspects questioned in relation to serious offences.75
3.35 The results of research into this argument are inconclusive. Police research undertaken in Northern Ireland indicated that just over 50% of suspects detained for serious offences including terrorist offences refused to answer any substantive questions when questioned by police.76 This was relied on to support the introduction of legislation curtailing the right to silence in Northern Ireland.77 Research undertaken by the Northern Ireland Office following the introduction of the legislation suggested that 6% of non-terrorist suspects questioned by police in relation to serious offences exercised the right to silence.78 A 1994 research study concluded that there have been fewer charges for all offences, including serious offences, since the Northern Ireland legislation was introduced.79 One research project conducted in England found that there was no strong relationship between reliance on the right to silence when questioned by police and serious offences.80 However, other English studies have concluded that the right to remain silent before trial was more likely to be exercised by suspects questioned about serious offences.81
Prior convictions
3.36 Several submissions argued that the right to silence when questioned by police is exploited by “practised” or “professional” offenders.82
3.37 One way of analysing this argument is to compare reliance on the right to silence by offenders with prior convictions in the jurisdictions which have curtailed the right to silence, before and after this curtailment. One English study concluded that 71% of such suspects remained silent before the introduction of legislation curtailing the right to silence. This figure was reduced to 35% following the introduction of the legislation.83 This is to be contrasted with research undertaken in Northern Ireland which concluded that modification of the right to silence had little effect on conviction rates for males with prior convictions.84
3.38 Several research studies have analysed this argument by comparing the rates of reliance on the right to silence by suspects with and without prior convictions. Two studies reported a higher exercise of the right to remain silent amongst suspects with prior convictions.85 The reported discrepancies differ significantly. It has been suggested that, if the right to silence is exercised more frequently by suspects with prior convictions than those without, this reflects the fact that persons with prior convictions are more likely to be known to the police and therefore more likely to be arrested and questioned by police than persons without a criminal record.86
3.39 However, other research suggests that the rate of exercise of the right to silence by suspects with prior convictions reflects the general rate of reliance on the right to silence,87 and that there is no significant difference between acquittal rates of defendants with and without prior convictions who exercise the right to silence when questioned by police.88
3.40 In 1993, the Royal Commission on Criminal Justice concluded that the research evidence neither confirmed nor refuted the suggestion that the right to silence when questioned by police was used by a disproportionate number of experienced criminals.89
Complex offences, organised crime, drug offences
3.41 Concerns about the ability of the criminal justice system to cope with complex trials have led to the argument for modification of the right to silence in relation to complex offences.90 This argument has also been raised in relation to organised crime91 and drug conspiracy trials, which may involve clandestine financial transactions.92 The Commission is unaware of any research examining the rate of reliance on the right to silence when questioned by police in relation to these offences. A report commissioned by the Australian Institute of Judicial Administration, published in 1992, concluded that the right to silence when questioned by police was “relatively unimportant” in the context of complex criminal trials.93 This report rejected the need for changes to the law regulating investigative questioning in the context of complex fraud offences.94
Legal advice
3.42 One submission argued that the right to silence is exploited by wealthy suspects with access to legal advice.95
3.43 Although some English research suggests that the provision of legal advice during police questioning does not significantly affect the rate of exercise of the right to silence,96 most studies have concluded that suspects with access to legal advice are more likely to remain silent during police questioning than those without legal advice.97 The reported discrepancies differ considerably.98 There is also a considerable body of research on the nature of legal advice given to suspects at police stations which suggests that suspects are not advised to remain silent as a matter of course, that advice to remain silent is often a temporary strategy, that the quality of legal advice to suspects varies considerably, and that a suspect’s decision to remain silent is not always the result of legal advice.99
3.44 This research evidence must be considered in the context of the provision of free legal advice to suspects in England under a government funded legal aid scheme. As a result of this scheme, approximately 30% of suspects have legal advice in the police station, either in person or by telephone.100 There is no substantive equivalent to this right in New South Wales.101 Many suspects do not have the financial means, intellectual ability or knowledge to access legal advice.102
Ambush defences
3.45 Finally, proponents of reform argue that the right to silence enables the defence to unfairly “ambush” the prosecution with a fabricated defence at trial.103 An “ambush” defence has been defined as a defence with the following characteristics: a defence raised for the first time in court; based on evidence which could have been disclosed during interrogation; the prosecution is hampered by the late disclosure of the defence; and the defendant benefits from having extra time to prepare the defence.104
3.46 Again, this argument is not supported by the research, which suggests that the incidence of defences raised for the first time at trial which succeed is between 1.5% and 5%.105 The research also suggests that a defendant who raises an ambush defence is more likely to be convicted than acquitted.106 In one study, every defendant who adopted an ambush defence was convicted.107 It has been suggested that this is likely to reflect the lack of credibility of such defences in the view of the court or jury, where they become aware of the fact that the defence was adopted at a very late stage.108 However, under the present law, the Crown is not permitted to elicit evidence that the defence has been raised for the first time at the trial, although it may show that the defence is inconsistent with a defence raised earlier.109 Accordingly, the cases where the jury become aware of an ambush defence are relatively few and the research is therefore of limited value.
Efficiency
3.47 Another argument in favour of modifying the right to silence when questioned by police is that it would improve the efficiency of criminal investigations by the police. If suspects were informed that, if charged, their refusal to answer police questions could be used at trial as a basis for drawing adverse inferences in assessing the defence case, suspects with bona fide explanations for the circumstances attracting suspicion would be more likely to co operate with the police. This would enable them to be eliminated from the investigation at an earlier time, saving police resources which would otherwise be wasted pursuing fruitless inquiries.110
Abolition subject to additional protections
3.48 It is argued that the right to silence when questioned by police can be exchanged for other measures which provide adequate protection for suspects.111
3.49 Several submissions argued that access to legal advice,112 or an independent observer113 during police questioning could replace the right to silence by redressing the power imbalance between the police and the suspect. Opponents of this argument argue that, in New South Wales, suspects do not have a substantial right to legal advice when questioned by police.114 Research suggests that legal advisers do not routinely advise suspects to remain silent, that advice to do so is frequently a temporary strategy, and that the quality of legal advice varies considerably.115 Research into the exercise of the right to silence by juvenile suspects also suggests that independent observers such as adult relatives and social workers provide little assistance or guidance to the suspect.116
3.50 Several submissions argued that electronic recording of police interviews provides an objective record of police interrogation of suspects, eliminating the need for the right to silence.117 The Crimes Act 1900 (NSW) s 424A provides that admissions made during police questioning in New South Wales are not generally admissible as evidence in trials for indictable offences unless they are electronically recorded. The prosecution must establish a reasonable excuse for failure to audio tape or video record admissions, such as mechanical failure, lack of availability of equipment or refusal of cooperation by the suspect. In addition, the Evidence Act 1995 (NSW) s 86 provides that a document prepared by the police which records oral admissions made during questioning is not admissible as evidence unless the defendant has acknowledged it is accurate by signing it.
3.51 However, the empirical research establishes that suspects are frequently questioned or have conversations with police prior to their arrival at the police station where these alternative protections are available.118
3.52 Another basic weakness of this argument is that the provision of alternative protections such as access to legal advice and electronic recording of police interviews does not remove the many legitimate reasons which innocent suspects may have for remaining silent during police interrogation.119
3.53 Several submissions argued that claims that the right to silence can be dispensed with because access to legal advice and electronic recording of all police interviews adequately protects suspects are unconvincing in light of the findings of the Wood Royal Commission on extensive malpractice and corruption in the New South Wales police service.120
3.54 The Commission has previously rejected the argument that giving practical effect to common law rights such as access to legal advice justifies the abandonment of other protections such as the right to silence.121 At all events, given the present severe limitations on legal aid budgets, the prospect of actually providing legal advice to suspects in police stations is remote.
The need to guide juries
3.55 One submission argued that where juries are aware that the defendant refused to answer police questions, there is a real risk that they will place too much weight on the defendant’s silence unless they are guided by judicial direction as to the inferences which can reasonably be drawn.122
3.56 In criminal trials in New South Wales, evidence which establishes that the defendant exercised the right to silence when questioned by police is admissible in certain circumstances.123 English empirical research suggests that the jury is aware of the fact that the defendant exercised the right to silence when questioned by police in 79% - 85% of criminal trials of defendants who have exercised the right.124
3.57 Several submissions argued that the prosecution should also be permitted to comment to the jury on the fact that the defendant exercised the right to silence when questioned by police. These submissions argued that, if the trial judge is permitted to comment, fairness requires that the prosecution also be able to comment.125
3.58 It is also argued that the current prohibition on judicial comment results in a waste of court resources in terms of appeals and retrials where the trial judge is held to have breached the prohibition.126
3.59 Coldrey argues that juries do not make inappropriate use of the fact that the defendant has exercised the right to silence before trial.127 However, it is not possible to assess the validity of this argument except by resorting to speculation, since juries do not provide reasons for their decisions.128
3.60 Coldrey has suggested that it should be up to the defendant to decide whether to assume the risk that the jury will make inappropriate use of his or her exercise of the right to silence before trial.129
Arguments for retaining the existing right to silence
3.61 There are several strong arguments for retaining the right to silence when questioned by police in its current form. The arguments include the view that there are many reasons for exercising this right which are consistent with innocence, whilst permitting judicial comment might operate as a subtle form of compulsion on suspects; the effects on police practices and modes of detection of crime; furthermore that it would result in the substitution of trial by a court of law by what becomes, in substance or to a significant degree, a trial in a police station, which is repugnant to our conceptions of the rule of law. The practical consequences at trial of any qualification to the right of silence when questioned by police are also clearly important.
Reasons for silence consistent with innocence
3.62 Several submissions challenged the argument that an innocent suspect would naturally deny police accusations, arguing that there are many reasons for exercising the right to silence which are consistent with innocence.130
3.63 The suspect may distrust the police, fearing that police will trick him or her into answering questions, distort answers and harass potential defence witnesses. The suspect may be reluctant to repeat an explanation told to police informally which was disbelieved.131 Several research studies have identified the suspect’s general attitude towards the police as a key factor in determining the level of the suspect’s cooperation with police questioning.132
3.64 It is important to note that frequently the police investigation will be incomplete, sometimes to a significant extent, at the time the suspect is interviewed. The matters being put to him or her may well, therefore, be confused or wrong. The questions, when the facts become known, may be seen to contain ambiguities or even be misleading. The defendant will in all likelihood never be re-interviewed if he is arrested even where a different version of the suspected circumstances later emerges. Silence in the face of possibly incriminating facts may well be regarded as a significant reason for justifying the arrest.
3.65 The desire to protect others, particularly family members and friends whom the suspect knows or believes is or are responsible for or involved in the offences concerned, is another reason for silence which is consistent with innocence. Alternatively, a suspect may remain silent for fear of being labelled a police informer or for fear of reprisal by the offender.133
3.66 A suspect may exercise the right to silence when questioned by police to conceal sexual or political conduct which he or she is embarrassed or ashamed of,134 or to conceal illegal behaviour which is not under investigation.135
3.67 A suspect may exercise the right to silence due to shock and confusion at police accusations. The suspect may feel unable to sort out the facts or fear making a mistake due to the pressure of police questioning. The suspect may want to think about the circumstances, refresh his or her memory, or obtain legal advice. This does not necessarily equate with an intention to fabricate a defence.136
3.68 A suspect may genuinely not be able to answer police questions. The answers may have been forgotten or may never have been within the knowledge of the suspect. The police may not reveal enough detail about the allegations to enable the suspect to answer or to warrant explanation.137 This is a common reason for legal advice to a suspect to exercise the right to silence.138
3.69 There are several communication factors which could lead to a suspect exercising the right to remain silent when questioned by police. The suspect may not hear or understand what the police are asking. The suspect may have limited English skills because of limited education, or by virtue of being from a non-English speaking background. The suspect may be drunk, affected by drugs, or otherwise inarticulate and unable to answer. One submission argued that in this context the suspect may not even understand that a right to silence exists and cannot really be said to be exercising the right. 139
3.70 Personal characteristics may also influence whether an innocent suspect exercises the right to silence when questioned by police. English research suggests that women are much less likely than men to remain silent when questioned by police,140 and that juvenile suspects also rarely exercise the right to silence.141 It is clear that Aboriginal suspects are more likely to answer police questions than the general population.142 This has led to the creation of specific rules regulating police questioning of Aborigines in several jurisdictions.143
3.71 There are various psychological characteristics which may impair a suspect’s ability to understand his or her legal rights or make it likely that the suspect will provide information to the police which is misleading or unreliable, including mental disorders and illnesses, intellectual and developmental disabilities, acquired brain injuries and low intelligence.144 Research conducted for the Royal Commission on Criminal Justice concluded that that there was a high incidence of these psychological characteristics among suspects interviewed by the police. The average IQ of suspects questioned was in the bottom 5% of the general population.145 A submission from the Intellectual Disability Rights Service Incorporated (“IDRS”) explained that IDRS solicitors commonly advised clients to exercise the right to silence in their dealings with the police because of the risk of clients talking freely with the police without any understanding of the consequences, tending to acquiesce to authority and answering questions to cover up for ignorance.146
3.72 Recent research into the effect of the modification of the right to silence in England indicates that the physical or mental condition of the suspect was one of the main reasons for solicitors advising that their client remain silent during police interviews.147
3.73 Cultural constraints may also lead to the exercise of the right to silence. For example, in certain cultures discussion of domestic abuse and sexual assault is considered inappropriate in most contexts.148
3.74 In response to this argument, it is argued that the defendant has the opportunity to tell the court at trial the reasons for remaining silent when questioned by police.149 However, many of the reasons for exercising the right to silence when questioned by police are also relevant to the exercise of the right to silence at trial.150 Furthermore, this may well deflect the trial into issues which are essentially peripheral.
Compulsion
3.75 If courts and juries are permitted to draw adverse inferences from the defendant’s exercise of the right to silence when questioned by police, the caution given to suspects will have to be changed to reflect this. It is argued that this would operate in practice as a form of compulsion, infringing the requirement that admissions made in police interviews be voluntary.151 Research undertaken in Northern Ireland indicates that defence lawyers overwhelmingly believe that suspects do not comprehend the caution introduced in 1988 to accompany modifications to the law relating to the right to silence. Defence lawyers reported that most suspects believed the caution meant that there was an obligation to answer any question put by the police.152
Police practices
3.76 Commentators have also argued that there is a risk that modifying the right to silence when questioned by police will result in the police manipulating interviews by framing questions in a way that encourages suspects to remain silent.153 It has also been suggested that the existence of the suspect’s right to silence when questioned by police is a necessary incentive for police to investigate offences thoroughly and search for evidence other than confessions.154 From the police point of view, the significance attributed to silence might well enhance the chance of conviction more than any explanation given, even one that is difficult to prove.
Fundamental principles
3.77 Many submissions argued that permitting judicial comment on the exercise of the right to silence would undermine the principles that the defendant is presumed innocent and that the prosecution carries the burden of proving the defendant’s guilt, which are fundamental to the criminal justice system.155
3.78 One submission also argued that the right to silence when questioned by police was fundamental to the acceptance of the criminal justice system by defendants as being fair. This submission expressed the concern that modification to the right to silence would result in reprisals on victims and police and an increase in defended matters.156
Procedural fairness at trial
3.79 Coldrey argues that, if the court or jury was permitted to draw adverse inferences when the defendant exercised the right to silence, procedural fairness at trial would require that the defendant be given an opportunity to rebut any adverse inferences. This process could include extensive evidence of the defendant’s general background and behaviour and the use of expert psychological and psychiatric evidence as to the impact of police interrogation on the defendant. This could significantly increase the complexity and length of the trial process.157 It is essentially peripheral. The trial then focuses on what happened at the police station and why rather than the evidence which is directly relevant to the commission of the crime.
CONCLUSION
3.80 The Commission’s present view is that the right to silence when questioned by police is a necessary protection for suspects, and that its modification would also undermine fundamental principles. It would tend to substitute trial in the police station for trial by a court of law. A fundamental requirement of fairness in any obligation imposed to reveal a defence when questioned by police is that legal advice be available to suspects at this stage to ensure that they understand the significance of the caution and the consequences of silence. That requirement is incapable of being satisfied within presently available legal aid funding, and significant increases seem extremely unlikely. Finally, the examination of the empirical data in this chapter does not support the argument that the right to silence is widely exploited by guilty suspects, as distinct from innocent ones, or the argument that it impedes the prosecution or conviction of offenders.
FOOTNOTES
1. R v Director of Serious Fraud Office, Ex p Smith [1993] AC 1 at 30; [1992] 3 WLR 66 at 74 per Lord Mustill, with whom the other members of the House of Lords agreed; Parkes v R [1976] 1 WLR 1251; [1976] 3 All ER 380; [1976] Crim LR 741; R v Salahattin [1983] 1 VR 521; I Alger, “From Star Chamber to Petty and Maiden: Police Attitudes to the Right to Silence”, paper presented at session 24 of the 30th Australian Legal Conference (Melbourne, 18-21 September 1997) at 1.
2. S Greer, “The Right to Silence: A Review of the Current Debate” (1990) 53 Modern Law Review 709 at 712.
3. Petty v The Queen (1991) 173 CLR 95; 65 ALJR 625; 55 A Crim R 322; 102 ALR 129; Glennon v The Queen (1994) 179 CLR 1; 68 ALJR 209; 70 A Crim R 459; 119 ALR 706; A Mason, “Fair Trial” (1995) 19 Criminal Law Journal 7 at 10.
4. R v Reeves (1992) 29 NSWLR 109; cited with approval in R v Towers (NSW Court of Criminal Appeal, No 60359/91, 7 June 1993, unreported) at 10 per Handley JA with whom the other members of the court agreed; Yisrael v District Court (NSW Court of Appeal, No CA 4011/95, 18 July 1996, unreported) at 7 per Meagher JA.
5. R v Reeves (1992) 29 NSWLR 109 at 115 per Hunt CJ at CL, with whom the other members of the Court agreed.
6. R v Reeves (1992) 29 NSWLR 109 at 115 per Hunt CJ at CL, with whom the other members of the Court agreed; R v Mathews (NSW Court of Criminal Appeal, No 60726/95, 28 May 1996, unreported) at 3 per Badgery-Parker J with whom the other members of the Court agreed. The Court in R v Reeves held that this direction should, if necessary, be repeated by the trial judge in the summing up and that it would also usually be appropriate to remind the jury that the defendant had been cautioned by the police as to the existence of the right to silence: at 115 per Hunt CJ at CL, with whom the other members of the Court agreed. The Court in R v Mathews held that the direction should be given when the evidence is first adduced, but that in any event it should ordinarily be given in the course of summing up: at 3 per Badgery-Parker J with whom the other members of the Court agreed.
7. Woon v R (1964) 109 CLR 529 at 541-542, 38 ALJR 32 at 36 per Windeyer J; R v Towers (NSW Court of Criminal Appeal, No 60359/91, 7 June 1993, unreported) at 11-12 per Handley JA with whom the other members of the Court agreed; R v Lawson (NSW Court of Criminal Appeal, No 60460/91, 15 March 1993, unreported) at 27-30 per Sully J, with whom the other members of the Court agreed; Yisrael v District Court of NSW (NSW Court of Appeal, No CA 440114/95, 18 July 1996, unreported) at 8-9 per Meagher JA.
8. R v Swaffield and Pavic (1998) 151 ALR 98 at 114.
9. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 68 ALJR 127; 12 ACSR 452; 118 ALR 392.
10. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 526-52; 68 ALJR 127 at 150; 118 ALR 392 at 426 per Deane, Dawson and Gaudron JJ; cf 178 CLR 477 at 503; 68 ALJR 127 at 137; 118 ALR 392 at 408 per Mason CJ and Toohey J.
11. “Official questioning” is defined as “questioning by an investigating official in connection with the investigation or the commission or possible commission of an offence”: Evidence Act 1995 (NSW) s 3, Dictionary.
12. Petty v The Queen (1991) 173 CLR 95; 65 ALJR 625; 55 A Crim R 322; 102 ALR 129; Odgers, Uniform Evidence Law (2nd ed, Federation Press, Sydney, 1997) at 151.
13. Traffic Act 1909 (NSW) s 5.
14. International Covenant on Civil and Political Rights, Art 14(3)(g);
S Bronitt and M Ayres, “The Administration of Criminal Justice and International Human Rights Law: A Practitioner’s Guide” in
D Kinley (ed), Human Rights in Australian Law: Practice and Potential (forthcoming, Federation Press, 1998); Murray v United Kingdom (1996) 22 EHRR 29; Law Society of the Australian Capital Territory, Submission at 2-3.
15. Bankruptcy Act 1966 (Cth) s 81(11), 81(11AA).
16. Bankruptcy Act 1966 (Cth) s 81(17).
17. Royal Commissions Act 1902 (Cth) s 6, 6A. The Act does not deal with the admissibility of evidence obtained at a hearing before a Royal Commission.
18. Australian Securities Commission Act 1989 (Cth) s 63(1).
19. National Crime Authority Act 1984 (Cth) s 30(2), (11).
20. Australian Securities Commission Act 1989 (Cth) s 68(3); National Crime Authority Act 1984 (Cth) s 30. For further discussion of statutory abrogation, see M Aronson, Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure (AIJA, Victoria, 1992) at 14-16. Note that the immunities in relation to use and derivative use of evidence have limited practical effect.
21. Evidence Act 1995 (NSW) s 128. See also Evidence Act 1995 (Cth) s 128.
22. Evidence Act 1995 (NSW) s 128; Evidence Regulation 1995 (NSW) r 7 and form 1. See also Evidence Act 1995 (Cth) s 128; Evidence Regulations 1995 (Cth) r 7 and form 1.
23. Leigh v Cole (1853) 6 Cox CC 329; Dillon v O’Brien (1887) 16 Cox CC 245.
24. R v Carr [1972] 1 NSWLR 608 at 612.
25. Crimes Act 1900 (NSW) s 353A(1). “Lawful custody” is defined in s 353A(3C).
26. Crimes Act 1900 (NSW) s 353A(3). There are special conditions in relation to suspects who are children. See s 353AA.
27. Crimes Act 1900 (NSW) s 353A(2), 353A(3A).
28. Crimes Act 1900 (NSW) s 353A(3D).
29. Crimes Act 1900 (NSW) s 316. “Serious offence” is defined in s 311(1).
30. King v R [1965] 1 WLR 706; 49 Cr App R 140; Petty v The Queen (1991) 173 CLR 95 at 99; 65 ALJR 625; 55 A Crim R 322; 102 ALR 129.
31. Crimes Act 1900 (NSW) s 341.
32. New South Wales Law Reform Commission, Review of Section 316 of the Crimes Act 1900 (NSW) (Discussion Paper 39, 1997).
33. Police Regulations 1990 (NSW) r 48, 66A; New South Wales Police Service, Commissioner’s Instructions, Instruction 23.
34. New South Wales Police Service, Commissioner’s Instructions, Instruction 24.
35. Petty v The Queen (1991) 173 CLR 95; 65 ALJR 625; 55 A Crim R 322; 102 ALR 129; Glennon v The Queen (1994) 179 CLR 1; 68 ALJR 209; 70 A Crim R 459; 119 ALR 706; A Mason, “Fair Trial” (1995) 19 Criminal Law Journal 7 at 10; Evidence Act 1995 (Cth) s 4, 89.
36. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 3; Criminal Justice and Public Order Act 1994 (Eng) s 34; Criminal Procedure Code (Singapore) s 123(1).
37. J Jackson, “Interpreting the Silence Provisions: The Northern Ireland Cases” [1995] Criminal Law Review 587 at 589.
38. R v Argent (England, Court of Appeal, 19 December 1996, unreported).
39. R v McLernon (Northern Ireland, Belfast Crown Court, 20 December 1990, Kelly LJ) discussed in Jackson (1995) at 589.
40. R v Kinsella (Northern Ireland, Belfast Crown Court, December 1993); R v Connolly and McCartney (Northern Ireland, Belfast Crown Court, 5 June 1992) discussed in Jackson (1995) at 594. The Court’s position has been criticised by commentators. See I Dennis, “The Criminal Justice and Public Order Act 1994 — The Evidence Provisions” [1995] Criminal Law Review 4 at 14; J Jackson, “Recent Developments in Criminal Evidence” (1989) 40 Northern Ireland Law Quarterly 105; Jackson (1995) at 594.
41. R v Condron (England, Court of Appeal, 4 November 1996, The Times). Contra Petty v The Queen (1991) 173 CLR 95 at 118-119; 102 ALR 129 at 145; 65 ALJR 625 at 634; 55 A Crim R 322 at 338 per Dawson J (diss).
42. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 5; Criminal Justice and Public Order Act 1994 (Eng) s 36; Criminal Procedure Code (Singapore) s 123(1).
43. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 6; Criminal Justice and Public Order Act 1994 (Eng) s 37; Criminal Procedure Code (Singapore) s 123(1).
44. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 3, 5, 6; Criminal Justice and Public Order Act 1994 (Eng) s 34, 36, 37; Criminal Procedure Code (Singapore) s 123(1).
45. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 2(4); Criminal Justice and Public Order Act 1994 (Eng) s 38(4).
46. J Jackson, “Curtailing the Right of Silence: Lessons From Northern Ireland” [1991] Criminal Law Review 404 at 410; Justice, Right of Silence Debate: The Northern Ireland Experience (1994) at 5, 23-25; J Michael and B Emmerson, “The Right to Silence” (1995) European Human Rights Law Review 4 at 8; S Greer and R Morgan (eds), The Right to Silence Debate (Bristol and Bath Centre for Criminal Justice, Bristol, 1990) at 50 and 53-59.
47. R v McLernon (Northern Ireland, Belfast Crown Court, 20 December 1990, Kelly LJ) discussed in Justice at 25; and Jackson (1995) at 596.
48. R v McLernon (Northern Ireland, Belfast Crown Court, 20 December 1990, Kelly LJ) discussed in Justice at 25; and Jackson (1995) at 596; Michael and Emmerson at 8. See also R v Martin (Northern Ireland, Belfast Crown Court, 8 May 1991, Hutton LCJ) discussed in Justice at 26; and Jackson (1995) at 596-598.
49. Murray v United Kingdom (1996) 22 EHRR 29 at 62 and 63.
50. Murray v United Kingdom (1996) 22 EHRR 29 at 60.
51. Murray v United Kingdom (1996) 22 EHRR 29 at 62. The Court held that the right to access to legal advice at the initial stages of police interrogation was of “paramount importance”. The defendant had been denied access to legal advice during the first 48 hours of detention (in accordance with the Northern Ireland (Emergency Provisions) Act 1987 (Eng) s 15). This violated his right to a fair trial: Murray v United Kingdom (1996) 22 EHRR 29 at 67.
52. R v Condron (England, Court of Appeal, 4 November 1996, The Times).
53. R v Cowan [1995] 4 All ER 939 at 944; 3 WLR 818 at 823.
54. Criminal Justice Act 1987 (Eng); Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (Eng). This scheme was based on the recommendations of the Fraud Trials Committee, Report of the Fraud Trials Committee (London, 1986) chapter 6.
55. Criminal Justice Act 1987 (Eng) s 1(3).
56. Criminal Justice Act 1987 (Eng) s 2(2).
57. Criminal Justice Act 1987 (Eng) s 2(13).
58. Criminal Justice Act 1987 (Eng) s 2(8)(a). This is an offence under s 2(14) of the Act.
59. Criminal Justice Act 1987 (Eng) s 2(8)(b).
60. D Brown, PACE Ten Years on: A Review of the Research (Home Office, London, 1997) at 168-171.
61. Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at paras 1.34 and 1.35; D Dixon, “Politics, Research and Symbolism in Criminal Justice: The Right of Silence and the Police and Criminal Evidence Act” (1991-1992) 20-21 Anglo-American Law Review 27 at 28.
62. Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 53-54.
63. This view was also strongly expressed in several submissions: D Dixon, Submission 1 at 1; C Corns, Submission at 1.
64. C Corns, Submission at 3; M Tedeschi QC, Submission at 1; Police Association of New South Wales, Submission at 2, 3, 5; R Miller, Submission at 4; Alger at 8; G Davies, “Justice Reform: A Personal Perspective” Bar News [Summer 1996] 5 at 10-11; K Marks, “‘Thinking Up’ About the Right to Silence and Unsworn Statements” [1984] Law Institute Journal 360 at 361; E Whitton, Trial by Voodoo (Random House, Milson’s Point, 1994) chapter 4; E Whitton, “Privilege that Prevents Justice Being Done” The Australian (21 August 1997) at 11; CR Williams, “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 Law Quarterly Review 629 at 632; J Woods, “Judge Calls for End of ‘Right to Silence’” Courier Mail (Brisbane) (24 April 1997) at 8; N Papps, “You Have the Right to Remain Silent — But Maybe Not for Much Longer” Adelaide Advertiser (21 January 1998) at 1-2; Criminal Law Revision Committee, Evidence (General) (Report 11, London, 1972) at paras 30-31; Sullivan v The Queen (1967) 51 Cr App R 102 at 105 per Salmon LJ.
65. S Odgers, “Police Interrogation and the Right to Silence” (1985) 59 Australian Law Journal 78 at 86; New South Wales Law Reform Commission, Criminal Procedure: Police Powers of Detention and Investigation After Arrest (Report 66, 1990) at para 5.10.
66. J Coldrey, “The Right to Silence: Should it be Curtailed or Abolished?” (1991) 20 Anglo-American Law Review 51 at 54-55.
67. J Coldrey, “The Right to Silence Reassessed” (1990) 74 Victorian Bar News 25 at 26-27.
68. This conclusion was also expressed in one submission from a New South Wales magistrate, based on anecdotal experience: A Clarke, Submission at 1; Aronson at 13.
69. Odgers (1985) at 86-87; Dixon (1991-1992) at 37-41; D Dixon, Law in Policing: Legal Regulation and Police Practices (Clarendon Press, Oxford, 1997) at 229-235 and 263-264; Dennis at 11-14; R Leng, “The Right to Silence Debate” in D Morgan and G Stephenson (eds), The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994) at 19 and 22-28; M Zander, “Abolition of the Right to Silence, 1972-1994” in D Morgan and G Stephenson (eds), The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994) at 147-148; D Wolchover and A Heaton-Armstrong, “Labor’s Victory and the Right to Silence — 2” (1997) 147 New Law Journal 1434 at 1434-1435; J Williams, “Inferences From Silence” (1997) 141 Solicitors 566; G Black, “The Right Defence” [1989] Legal Action 9; Royal Commission on Criminal Procedure at paras 4.43-4.46; Greer and Morgan at 38; Royal Commission on Criminal Justice at 53-54; Justice at 7-12; Brown at 167-186. Note that the research findings of Justice have been criticised: see Dennis at 13.
70. The methodology of these studies has been criticised, criticism which one of the authors has acknowledged: Dixon (1991-1992) at 40-41; Dixon (1997) at 231-233; Leng at 24-28; Brown at 172.
71. M Yeo, “Diminishing the Right to Silence: The Singapore Experience” [1983] Criminal Law Review 88; A Tan, “Adverse Inferences and the Right to Silence: Re-Examining the Singapore Experience” [1997] Criminal Law Review 471 at 473; Greer and Morgan at 50.
72. Brown at 171-175; Dixon (1997) at 235, footnote 15.
73. Leng at 31-32; Dixon (1991-1992) at 38; Dixon (1997) at 230; Brown at 173.
74. Brown at 181-184; Dixon (1991-1992) at 37 and 40-41; Dixon (1997) at 230 and 232-233; Dennis at 12-14; Leng at 26-29; Zander at 148; Justice at 7-12; J Gallagher, Submission at 5; B Hocking and L Manville, Submission at 15; Greer and Morgan at 6, 14 and 67; Royal Commission on Criminal Justice at 53-54; New South Wales Law Reform Commission (1990) at para 5.13.
75. L Davies, Submission at 3, 5; E Whitton, Trial by Voodoo at 44; Working Group on the Right to Silence, Report of the Working Group on the Right of Silence, (London, 1989) at 28.
76. Dennis at 11; Justice at 7. It is not known what proportion of these suspects were questioned in relation to terrorist offences.
77. Dennis at 11; Justice at 7; see paras 2.23, 3.17-3.24, 5.15-5.21.
78. Justice at 8. This research has never been officially released by the English Government.
79. Justice at 9-10.
80. Dixon (1991-1992) at 40; Dixon (1997) at 232. However, the methodology of this research has been criticised, criticism which has been acknowledged by the author; see para 3.30.
81. Black at 9; Dixon (1991-1992) at 40, Dixon (1997) at 231 and 235; Dennis at 11; Leng at 27; Zander at 146-147; Brown at 176; Greer and Morgan at 38; Royal Commission on Criminal Justice at 53.
82. R Miller, Submission at 4; Police Association of New South Wales, Submission at 4; B Hocking and L Manville, Submission at 11; Davies at 10; Marks at 361; Criminal Law Revision Committee at para 30.
83. J Williams at 566.
84. Justice at 11-12. The conviction rates for females with prior convictions did increase, but this increase was very small and occurred in the context of a significant rise in female criminality.
85. Odgers (1985) at 86-87; Dixon (1991-1992) at 37; Dixon (1997) at 229 and 235; Dennis at 11; Leng at 27; Zander at 147; Brown at 177; Greer and Morgan at 13 and 38.
86. Leng at 27.
87. Odgers (1985) at 86-87; Dixon (1991-1992) at 37; Dixon (1997) at 229; Greer and Morgan at 14; Black at 9; Royal Commission on Criminal Justice at 54.
88. Dixon (1991-1992) at 37 and 40; Dixon (1997) at 230-231.
89. Royal Commission on Criminal Justice at 53.
90. L Davies, Submission at 2; P Cloran, Submission at 4-5; G Santow, “Corporate Crime: Complex Criminal Trials — A Commentary” (1994) 5 Current Issues in Criminal Justice 280 at 284; H van Leeuwen, “AG Proposes New Rules for White-Collar Trials” Australian Financial Review (28 February 1998) at 8.
91. Whitton, Trial by Voodoo at chapter 4.
92. L Davies, Submission at 2.
93. Aronson at 13-14.
94. Aronson at 38.
95. R Miller, Submission at 4.
96. D Dixon, Submission 2 at 1; Dixon (1991-1992) at 37; Dixon (1997) at 230; Black at 9; Aronson at 34-35.
97. Dixon (1991-1992) at 40; Dixon (1997) at 231 and 235; Dennis at 11; Leng at 27; Zander at 147-148; Brown at 178-181; Greer and Morgan at 13 and 38; Royal Commission on Criminal Justice at 53.
98. Dixon (1997) at 235; Dennis at 11; Leng at 27; Zander at 146-148; Brown at 178-181.
99. D Dixon, Submission 2 at 1; Dixon (1991-1992) at 42-46; Dixon (1997) at 236-258; J Baldwin, “Police Interrogation: What are the Rules of the Game?” in D Morgan and G Stephenson (eds), Suspicion and Silence: The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994) at 66-76; Coldrey (1990) at 27; Coldrey (1991) at 56; Brown at 179-181 and chapter 6; Greer and Morgan at 26; Aronson at 35.
100. Zander at 147. The rate of legal advice varies considerably between police stations: Greer and Morgan at 68.
101. The Crimes Act 1900 (NSW) s 356N provides a right of access to a lawyer. However, there is no government funded duty solicitor scheme in New South Wales which would make this right substantial. See D Thiering, Submission at 2; D Dixon, Submission 2 at 1; G Singh, Submission at 3; Law Society of Australian Capital Territory, Submission at 7.
102. G Singh, Submission at 1; see para 3.49.
103. R v Alladice (Court of Appeal, 12 May 1988, unreported) cited in J Wood and A Crawford, The Right of Silence (The Civil Liberties Trust, London, 1989) at 22-23; Police Association of New South Wales, Submission at 4.
104. Leng at 29.
105. Leng at 28-30; Dixon (1991-1992) at 37; Dixon (1997) at 234; Dennis at 12-14; Brown at 184-185.
106. Dixon (1997) at 233; Dennis at 12-14; Leng at 30.
107. Dixon (1997) at 233; Dennis at 12-14; Leng at 30.
108. Royal Commission on Criminal Procedure at para 8.20; New South Wales Law Reform Commission (1987) at paras 5.13, 5.44.
109. Petty v The Queen (1991) 173 CLR 95; 65 ALJR 625; 55 A Crim R 322; 102 ALR 129.
110. J Jarratt, Submission at 1; Aronson at 3.
111. Greer (1990) at 719-720; JMA Cramond, Submission at 1; R Miller, Submission at 4; B Bright, Submission at 1; R v Alladice (Court of Appeal, 12 May 1988, unreported) cited in Wood and Crawford at 22-23; Criminal Law Review Committee (minority) at para 52; Royal Commission on Criminal Procedure (minority) at para 4.51; Greer and Morgan at 29 and 30.
112. L Davies, Submission at 6; Greer (1990) at 720; Marks at 373; Odgers (1985) at 89, 93-94; Criminal Law and Penal Methods Review Committee of South Australia, Criminal Investigation (Report 2, 1974) at 103.
113. R Miller, Submission at 4.
114. See para 3.44.
115. See para 3.43.
116. R Evans, “Police Interviews with Juveniles” in D Morgan and G Stephenson (eds), Suspicion and Silence — The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994) at
84-85 and 88.
117. JMA Cramond, Submission at 1; B Bright, Submission at 1; C Bone, Submission at 2-4; P Cloran, Submission at 4; Police Association of New South Wales, Submission at 3; Greer (1990) at 720. But contra Coldrey (1990) at 28 and Coldrey (1991) at 57 who argues that insight into interrogations provided by electronic recording is superficial; and see Dixon (1991-1992) at 46-47; J Jarratt, Submission at 2; L Davies, Submission at 6.
118. S Moston and G Stephenson, “Helping the Police With Their Enquiries Outside the Police Station” in D Morgan and G Stephenson (eds), Suspicion and Silence — The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994); Greer and Morgan at 26.
119. Greer (1990) at 722-723; Greer and Morgan at 12-13; see paras 3.62-3.74.
120. T O’Gorman, “Right to Silence”, paper presented at session 24 of the 30th Australian Legal Convention, (Melbourne, 18-21 September 1997) at 21; Royal Commission into the New South Wales Police Service, Final Report (1997); D Dixon, Submission 1 at 2; A Arfaras, Submission at 1; B Kennedy, Submission at 2; Dixon (1991-1992) at 31 raises this argument in the English context; see paras 2.24 and 2.25.
121. New South Wales Law Reform Commission (1990) at para 5.13.
122. J Jarratt, Submission at 1; Coldrey (1990) at 28; Davies at 10; Greer (1990) at 711; Odgers (1985) at 84 and 94; Greer and Morgan at 17.
123. See paras 3.4 and 3.5.
124. Leng at 19.
125. DS Shillington, Submission at 2; L Davies, Submission at 2.
126. C Corns, Submission at 3.
127. Coldrey (1990) at 29; Coldrey (1991) at 58. Coldrey has since been appointed to the Supreme Court of Victoria.
128. Dixon (1991-1992) at 36.
129. Coldrey (1990) at 29; Coldrey (1991) at 58.
130. R Jones, Submission at 2; Marsdens Attorneys, Solicitors and Barristers, Submission at 1-3; D Thiering, Submission at 1; H Bauer, Submission at 2; Alger at 9; Coldrey (1990) at 27-28; Dixon (1997) at 264; Dennis at 12-13; Australian Law Reform Commission, Criminal Investigation (Report 2 (Interim), 1975) at paras 148 and 149; Greer (1990) at 727-728; S Greer, “The Right to Silence, Defence Disclosure and Confession Evidence” (1994) 21 Journal of British Law and Society 102 at 104; Jackson (1995) at 595; Odgers (1985) at 84-85; R Pattendon, “Inferences From Silence” [1995] Criminal Law Review 602 at 608-609; CR Williams at 648-650; J Williams; Wood and Crawford at 25; Justice at 4, 15-16, 29-30; Evans; G Gudjonsson, “Psychological Vulnerability: Suspects at Risk” in D Morgan and G Stephenson (eds), Suspicion and Silence — The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994); Zander; Greer and Morgan at 12 and 15-16; Royal Commission on Criminal Justice at 52 and 54; Aronson at 33; J Gallagher, Submission at 3; S Kerkyasharian, Submission at 1.
131. R v Kinsella (Northern Ireland, Belfast Crown Court, December 1993, unreported) discussed in Justice at 29-30, R v Murphy (Northern Ireland, Belfast Crown Court, November 1991, unreported) discussed in Justice at 30; see para 3.51.
132. Greer (1990) at 727; Dixon (1991-1992) at 38.
133. P Cloran, Submission at 2; Australian Law Reform Commission (1975) at para 148; Black at 9.
134. P Cloran, Submission at 2; R v Burr (1988) 37 A Crim R 220 at 223.
135. P Cloran, Submission at 2; R v Kinsella (Northern Ireland, Belfast Crown Court, December 1993, unreported) discussed in Justice at 29-30. In Kinsella, the defendant argued that he exercised the right to remain silent because he did not want to reveal to the police that he was working illegally as a taxi driver. The Court rejected this argument and drew inferences adverse to the defendant under the Criminal Evidence (Northern Ireland) Order 1988 (Eng).
136. G Singh, Submission at 2; R v Kinsella (Belfast Crown Court, December 1993, unreported) discussed in Justice at 29-30; Black at 9.
137. Black at 9; Papps at 2.
138. J Williams; Dennis at 12-13; Greer and Morgan at 29.
139. B Hocking and L Manville, Submission at 17.
140. Dixon (1997) at 264.
141. Evans at 88.
142. B Hocking and L Manville, Submission at 18.
143. Crimes Act 1914 (Cth) Part 1C; R v Anunga (1976) 11 ALR 41. There are also administrative directions which regulate police questioning of Aborigines in all jurisdictions except Victoria.
144. D Thiering, Submission at 1; G Singh, Submission at 1, 2; J Gallagher, Submission at 3; Dennis at 12-13; Pattendon at 608; Gudjonsson; New South Wales Law Reform Commission, People With an Intellectual Disability and the Criminal Justice System (Report 80, 1996) at paras 4.34-4.39 and 4.54-4.58.
145. Pattendon at 608.
146. G Singh, Submission at 1.
147. J Williams.
148. B Hocking and L Manville, Submission at 19.
149. K Rogers, Submission at 2.
150. See paras 5.33-5.36.
151. R Jones, Submission at 1; Dixon (1997) at 228; Coldrey (1990) at 28 and 30; Dennis at 10-11; D Harvey, “The Right to Silence and the Presumption of Innocence” [1995] New Zealand Law Journal 181 at 184; Odgers (1985) at 85; Pattendon at 602; J Williams at 567; Wood and Crawford at 3, 20; Royal Commission on Criminal Procedure at para 4.50; Royal Commission on Criminal Justice at 54-55.
152. Justice at 13-15.
153. Dixon (1991-1992) at 36; Wood and Crawford at 25.
154. D Dixon, Submission 1 at 2; A Arfaras, Submission at 2; Greer (1990) at 726-727; Odgers (1985) at 85. It has been noted that this reasoning may lead to increased police powers in relation to surveillance and forensic techniques and technology: Dixon (1991-1992) at 49; Greer and Morgan at 16, 20.
155. Marsdens Attorneys, Solicitors and Barristers, Submission at 3; D Thiering, Submission at 1; G Singh, Submission at 3; A Arfaras, Submission at 2; J Gallagher, Submission at 2; Coldrey (1990) at 25; Greer (1990) at 725; Harvey at 183-184; Wood and Crawford at 2, 20; Justice; Royal Commission on Criminal Procedure at paras 4.51 and 4.66. Contr Odgers (1985) at 91; Pattendon at 611; CR Williams at 648; Black at 9; Petty v The Queen (1991) 173 CLR 95 at 128-129 per Gaudron J; Sorby v The Commonwealth (1983) 57 ALJR 248 at 253 per Gibbs CJ.
156. A Arfaras, Submission at 2.
157. Coldrey (1990) at 29.
