5.1 In New South Wales, the defendant in criminal trials is entitled to refuse to give evidence. The judge and any party other than the prosecution may comment to the jury if the defendant exercises this right, although there are restrictions on the nature of comment which is permitted. The prosecution is prohibited from commenting. Although the right to silence at trial is widely recognised in common law countries, the law in relation to comment on the exercise of this right varies. In some jurisdictions, both the judge and the prosecution are prohibited from comment. In other jurisdictions, prosecution comment is prohibited but unrestricted judicial comment is permitted. Other jurisdictions specifically permit the jury to draw very strong, although not unrestricted, adverse inferences, and also permit the trial judge and the prosecution to comment to the jury on the defendant’s exercise of the right to silence at trial. This chapter examines the right to silence at trial in New South Wales and other jurisdictions. The chapter also considers the policy arguments for and against reform, and contains the Commission’s conclusion at this stage in relation to reform of the right to silence at trial.
THE LAW IN NEW SOUTH WALES
5.2 In New South Wales, the defendant cannot be compelled to give evidence during a criminal trial, and is incompetent to give evidence for the prosecution.1
5.3 The Evidence Act 1995 (NSW) s 20 regulates the comment which can be made at trial on the fact that the defendant has exercised the right to remain silent at trial. Section 20 provides as follows:
Comment on failure to give evidence
(1) This section applies only in a criminal proceeding for an indictable offence.
(2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
...
(5) If:
(a) 2 or more persons are being tried together for an indictable offence; and
(b) comment is made by any of those persons on the failure of any of those persons to give evidence,
the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).
5.4 The trial judge should raise with defence counsel, in the absence of the jury, the question whether a direction should be given to the jury about the fact that the defendant has exercised the right to silence at trial. This gives defence counsel an opportunity to suggest to the judge possible reasons for the defendant’s silence which would make an adverse inference unfair, and debate the fairness of the direction.2
5.5 Directions as to the inferences which the jury is able to draw from the defendant’s failure to testify must also conform with common law requirements in relation to adverse inferences. At common law, adverse inferences may be drawn from a party’s failure to give or call evidence where the evidence establishes a prima facie case, it could reasonably have been expected that the party would lead the evidence, and the failure to lead the evidence is clearly capable of assisting the evaluation of the evidence before the court.3 Where it is reasonable to expect the defendant to have an explanation or contradiction to incriminating prosecution evidence, the fact that the defendant remained silent at trial may make it easier for the jury to accept or draw inferences from the prosecution evidence.4
5.6 The trial judge should remind the jury that the defendant is entitled to remain silent at trial and that the onus of proving the defendant’s guilt beyond reasonable doubt is on the prosecution.5 It is also usually appropriate for the trial judge to direct the jury that the defendant may have many reasons, unrelated to guilt, for refusing to give evidence at trial. The judge may give examples of possible reasons.6 There may be no facts peculiarly within the knowledge of the defendant. The defence may choose to rely on deficiencies in the prosecution case to establish that the burden of proof has not been discharged. The defence may be concerned about the defendant’s performance under cross-examination.7 The jury should also be directed that the defendant’s failure to give evidence cannot be treated as an admission of guilt by conduct.8
5.7 A defendant facing multiple charges may have an answer to one charge which would involve making admissions in relation to other charges. In this situation, the trial judge should draw a distinction between the different charges and direct the jury that the significance of the defendant’s refusal to testify may differ for the different charges.9
5.8 Although the leading High Court decision was a case where the case against the defendant was circumstantial, it is now clear that judicial directions in these terms are not restricted to circumstantial evidence cases.10
5.9 Section 20(2) of the Evidence Act 1995 (NSW) prohibits the prosecution from commenting on the defendant’s refusal to testify. There is authority that, in the course of the final prosecution address to the jury, the prosecution is entitled to refer to the judicial directions given in relation to the inferences available from the defendant’s refusal to testify. However, the prosecution must not imply that it is adopting the judge’s comment. A high degree of caution is required by the prosecution in this situation.11
5.10 The International Covenant on Civil and Political Rights recognises the right not to be compelled to testify as an element of the right to a fair trial afforded to defendants in criminal proceedings.12
OTHER JURISDICTIONS
5.11 The right to silence at trial is recognised in all Australian jurisdictions and other common law countries. In Commonwealth and Australian Capital Territory trials, the law is identical to New South Wales.13 However, the law in relation to comment on the exercise of the right to silence at trial varies considerably within other Australian jurisdictions and overseas.
Australia
South Australia, Western Australia, Tasmania
5.12 The right to silence at trial is expressly provided for by legislation in these jurisdictions.14 As in New South Wales, the prosecution is expressly prohibited from commenting to the jury on the exercise of this right.15 However, there is no statutory regulation of comment by the trial judge on the defendant’s exercise of the right to silence at trial. Judicial comment is regulated by the common law.16
Northern Territory, Victoria
5.13 The right to silence in these jurisdictions is also expressly provided for by legislation.17 The defendant’s failure to give evidence must not be made the subject of comment by the trial judge or the prosecution.18
Queensland
5.14 In Queensland, both the trial judge and the prosecution are permitted to comment on the defendant’s failure to testify. The type of comment permitted is regulated by the common law.19
United Kingdom, Singapore
5.15 The right to silence at trial is also recognised in England, Wales, Northern Ireland and Singapore.20 In criminal trials in these jurisdictions, the court or jury is expressly permitted by legislation to draw “such inferences as appear proper” from the defendant’s failure to give evidence, or refusal, without good cause, to answer any question at trial.21 Both the trial judge22 and the prosecution23 are permitted to comment on the inferences which may be drawn from the defendant’s failure to testify.
5.16 A defendant is considered to have good cause for refusing to answer particular questions if he or she is entitled to claim privilege, or if the court in the exercise of its discretion excuses the defendant from answering.24
5.17 The court must be satisfied that the defendant is aware that he or she can give evidence and appreciates consequences of exercising the right to silence.25 Adverse inferences cannot be drawn where it appears to the court that the defendant’s physical or mental condition makes it undesirable that he or she testify.26
5.18 In the United Kingdom, the relevant legislation expressly states that the defendant cannot be convicted of an offence solely on the basis of an adverse inference drawn from his or her exercise of the right to silence at trial.27
5.19 The trial judge has a discretion to direct the jury not to draw adverse inferences from the defendant’s silence at trial. However, it is only appropriate for the trial judge to exercise this discretion where there is an evidential basis or exceptional factors in the case.28 The Court of Appeal has held that the fact that the defendant participated in a police interview, or alternatively the fact that the police did not interview the defendant, is no basis for the trial judge refusing to comment on his or her refusal to testify at trial.29
5.20 The Criminal Division of the English Court of Appeal has approved a specimen direction to juries in relation to the inferences available from the defendant’s refusal to testify.30
5.21 The European Court of Human Rights has upheld the decision of a trial judge in Northern Ireland to draw very strong unfavourable inferences from the defendant’s refusal to testify.31
REFORM OF THE RIGHT TO SILENCE AT TRIAL
5.22 Arguments for reform of the law relating to the right to silence at trial focus on permitting unrestricted comment by the trial judge, the prosecution, or both when the right is exercised. The arguments for and against reform are similar to the arguments for and against reform of the right to silence when questioned by police discussed in chapter 3, although different considerations also arise in the courtroom context.
Arguments for reform
5.23 The principal arguments for permitting unrestricted judicial and/or prosecution comment are that the right to silence at trial is exploited by guilty suspects and that it is necessary to regulate the use made of silence by juries. It is also argued that the argument that permitting comment on the exercise of the right to silence when questioned by police would operate as an unacceptable form of compulsion on the defendant does not apply at trial.
Used by guilty defendants
5.24 Proponents of reform argue that an innocent person would take the opportunity at trial to express his or her innocence and to contest the prosecution evidence. The right to remain silent at trial is exploited by guilty defendants.32
The need to guide juries
5.25 Proponents of reform point out that juries will inevitably become aware of the fact that the defendant has not given evidence. It is argued that New South Wales juries are aware that the defendant is entitled to testify, and will place too much weight on the defendant’s silence unless guided by judicial direction.33 One submission, from the Honourable Justice T Smith of the Supreme Court of Victoria, gave examples of trials where the jury asked the judge whether any, and if so what, significance was to be attached to the fact that the defendant had not testified.34
5.26 Harvey argues that juries hesitate to draw any inferences from the defendant’s silence without receiving judicial guidance. However, it is not possible to assess the validity of this argument except by speculation, since in New South Wales juries do not provide reasons for their decisions.35
5.27 It has been suggested that it should be up to the defendant to decide whether to assume the risk that the jury will give too much weight to his or her refusal to testify.36
Differences between police interrogation and trial
5.28 One argument against reform of the right to silence when questioned by police is that defendants would feel compelled to answer police questions if the trial judge was permitted to direct the jury that it could draw adverse inferences from refusal to answer police questions.37 This argument has also been raised in relation to the right to silence at trial. It is argued that the practical effect would be to indirectly impose pressure on defendants to give evidence, even if there is no directly enforceable duty. 38
5.29 Proponents of reform of the right to silence at trial argue that this does not apply in the trial context as a result of several important differences between the questioning of suspects by police and the defendant’s opportunity to testify at trial. First, the right to silence at trial is exercised in a public forum, in the presence of the jury and an impartial trial judge, following evidence admitted in accordance with appropriate rules and where propriety in questioning is ensured by the judge. Silence at trial is less likely to be misreported or misinterpreted than in a police interrogation. Secondly, at trial, the defendant is aware of the charge, the prosecution has established a prima facie case, and the whole prosecution case has been disclosed to and tested by the defendant. This is to be contrasted to the situation where the defendant exercises the right to silence when questioned by police who are still gathering evidence about the case, without necessarily knowing details of the charge or the other prosecution evidence. Finally, at trial the defendant has had an opportunity to consider his or her defence and obtain legal advice. In this situation the defendant is less likely to be vulnerable due to shock, confusion and inadequate preparation for questions than in the pre-trial context.39
5.30 Several submissions argued that the prosecution should also be permitted in appropriate cases to comment to the jury on the defendant’s failure to testify, arguing that, since defence counsel has an opportunity to anticipate and counter judicial comment during the defence final address, fairness requires that the prosecution should also be permitted to comment during the prosecution final address.40 One submission argued that prohibiting prosecution comment could also cause injustice to the defendant because the jury may disregard judicial comment which is favourable to the defendant as the personal view of the trial judge if it is not balanced by prosecution comment.41 It is reasonable to think that a judge’s direction as to the use that might be made in an inculpatory sense of the defendant’s silence might give it more significance than it rationally should have since it comes from the bench rather than the bar table.
5.31 It is also argued that the current prohibition on prosecution comment results in a waste of court resources in terms of appeals and retrials where the prosecution accidentally comments on the defendant’s silence at trial.42
Arguments against reform
5.32 The principal arguments against permitting unrestricted judicial and/or prosecution comment on the exercise of the right to silence at trial are that there are many reasons for exercising the right which are consistent with innocence, that such reform would in practice compel the defendant to testify, that it would be inconsistent with fundamental principles of the criminal justice system and would have undesirable practical consequences at trial, by deflecting the jury into focusing on the possible reasons for remaining silent, which must ordinarily remain largely conjectural.
Reasons for silence consistent with innocence
5.33 Several submissions challenged the argument that an innocent defendant would naturally choose to testify, arguing that there are many valid tactical reasons for exercising the right to silence at trial which are consistent with innocence. The defendant may be advised to remain silent to avoid cross-examination on prior convictions,43 although the Evidence Act 1995 (NSW) provides considerable protection to defendants from cross-examination on any negative aspect of character or misconduct on the basis that it is relevant to credibility.44 Similarly, the defendant may refuse to testify to avoid questioning in relation to other outstanding charges.45
5.34 Defence counsel may advise the defendant to exercise the right to silence at trial because he or she would perform badly as a witness: limited intelligence, education, language and communication skills, psychological coping with stress and anxiety may all be relevant and reasonable considerations in this context. If the defendant does not testify, it will be very difficult to bring these matters to the jury’s attention, leading to the distinct possibility that inappropriate or too much weight will be given to the accused person’s silence.46 One submission from the National Children’s and Youth Law Centre stated that defence lawyers will often advise defendants who are children not to testify because of concerns about the child’s ability to perform as a witness, particularly under aggressive cross-examination.47
5.35 The defendant may also refuse to give evidence due to fear of repercussions against him or herself, family or associates.48 The defendant may not remember the events in issue.49
5.36 Until 1994, defendants had the option of giving unsworn evidence at trial. A defendant who elected to give unsworn evidence could not be cross-examined. This protected the defendant from revelation of prior convictions. Unsworn evidence was also advised for defendants who were assessed as being likely to perform badly as witnesses under hostile cross-examination. Several submissions argued that the tactical importance of the right to silence has increased in New South Wales since the abolition of the option of giving unsworn evidence.50 In 1985, the Commission recommended that unsworn statements be retained. More recently, the Commission recommended that the option of giving evidence not subject to cross-examination be reintroduced for defendants with an intellectual disability.51
Fundamental principles
5.37 Several submissions also argued that modifying the right to silence at trial would undermine the principles that the defendant is presumed innocent and that the prosecution carries the burden of proof, which are fundamental to the criminal justice system. It would be inconsistent with these principles to permit unrestricted judicial and/or prosecution comment to the jury on the adverse inferences which it can draw from the defendant’s refusal to testify.52
5.38 The High Court has responded to this argument, stating that the defendant who gives evidence is testifying in his or her own favour, is not asked to give evidence for the prosecution, and is not even competent as a prosecution witness.53 However, Palmer has criticised this analysis. Since the defendant no longer has the option of giving unsworn evidence, testifying will expose the defendant to cross-examination, the object of which is clearly to obtain incriminating information.54
Compulsion
5.39 Another argument is that if the trial judge or prosecution was permitted to comment to the jury on the defendant’s silence at trial, in practice suspects would feel compelled to testify.55
Procedural fairness at trial
5.40 It is argued that, if unrestricted comment on the exercise of the right to silence at trial was permitted, procedural fairness would require that the defendant be given an opportunity to rebut any adverse inferences. This process could significantly increase the length and complexity of the trial and result in the absurd situation of the defendant testifying to explain why he or she would not be testifying.56
OPTIONS FOR REFORM
Prosecution comment on silence
5.41 The Commission is considering whether the prosecution should be permitted in appropriate cases to comment on the defendant’s failure to testify. Arguably, given that the defence presently has the opportunity to comment, this would provide the jury with a balance of perspectives. If prosecution comment were permitted, the prosecution would be required to obtain the leave of the court before commenting. A voir dire, held without the jury present, would be an appropriate forum for the trial judge to determine whether leave should be given and, if so, to supervise the formulation of the proposed prosecution comment.57 The fact that the defendant was unrepresented would be relevant to whether leave would be given. Requiring leave would protect the defendant by ensuring that consideration was given to the possible reasons for the defendant’s silence consistent with innocence and that the fundamental principles referred to in paragraphs 5.37 and 5.38 were upheld. At this stage, the Commission does not accept that the prospect of prosecution comment, subject to these safeguards, would have the effect of making the defendant feel compelled to testify. This option would require amendment of the Evidence Act 1995 (NSW) s 20.
Court to ensure defendant aware of right to, and consequences of, silence
5.42 The Commission also presently considers that there is merit in the requirement in the United Kingdom legislation which requires the court to be satisfied that the defendant is aware that he or she can testify at trial and appreciates the consequences of refusing to testify.
FOOTNOTES
1. Evidence Act 1995 (NSW) s 17, 20.
2. R v OGD (NSW Court of Criminal Appeal, No 60480/96, 3 June 1997, unreported) at 17 per Gleeson CJ, with whom the other members of the Court agreed. Contra S Odgers, Uniform Evidence Law (2nd ed, Federation Press, 1997) at 38 (footnote 37).
3. The Hon Justice T Smith, Submission at 4; R v Buckland [1977] 2 NSWLR 452 (CCA); Browne v The Queen (1987) 30 A Crim R 278 (CCA NSW); R v Clough (1992) 28 NSWLR 396 (CCA); 64 A Crim R 451 (CCA NSW); Weissensteiner v The Queen (1993) 178 CLR 217; 68 ALJR 23; 68 A Crim R 251; 117 ALR 545. For a discussion of the scope of Weissensteiner see E Stone, “Calling a Spade a Spade: The Embarrassing Truth About the Right to Silence” (1998) 22 Criminal Law Journal 17.
4. Weissensteiner v The Queen (1993) 178 CLR 217 at 227-229; 68 ALJR 23 at 28-29; 68 A Crim R 251 at 258-258; 117 ALR 545 at 552-553 per Mason CJ, Deane and Dawson JJ, 178 CLR 217 at 235-236; 68 ALJR 23 at 32; 68 A Crim R 251 at 264-265; 117 ALR 545 at 558-559 per Brennan and Toohey JJ; R v OGD (NSW Court of Criminal Appeal, No 60480/96, 3 June 1997, unreported) at 13-14 per Gleeson CJ, with whom the other members of the Court agreed.
5. Weissensteiner v The Queen (1993) 178 CLR 217 at 235; 68 ALJR 23 at 32; 68 A Crim R 251 at 264; 117 ALR 545 at 558 per Brennan and Toohey JJ.
6. Weissensteiner v The Queen (1993) 178 CLR 217 at 228; 68 ALJR 23 at 28; 68 A Crim R 251 at 258-259; 117 ALR 545 at 552-553 per Mason CJ, Deane and Dawson JJ; R v OGD (NSW Court of Criminal Appeal, No 60480/96, 3 June 1997, unreported) at 14 per Gleeson CJ, with whom the other members of the Court agreed.
7. Weissensteiner v The Queen (1993) 178 CLR 217 at 228; 68 ALJR 23 at 28; 68 A Crim R 251 at 258-259; 117 ALR 545 at 552-553 per Mason CJ, Deane and Dawson JJ; Odgers (1997) at 38 (footnote 37).
8. R v OGD (NSW Court of Criminal Appeal, No 60480/96, 3 June 1997, unreported) at 13, 15 per Gleeson CJ, with whom the other members of the Court agreed; Weissensteiner v The Queen (1993) 178 CLR 217 at 229; 68 ALJR 23 at 28; 68 A Crim R 251 at 259; 117 ALR 545 at 553 per Mason CJ, Deane and Dawson JJ. This requirement is consistent with the Evidence Act 1995 (NSW) s 20(2).
9. R v OGD (NSW Court of Criminal Appeal, No 60480/96, 3 June 1997, unreported) at 18 per Gleeson CJ, with whom the other members of the Court agreed. The defendant in this case was charged with ten counts of having intercourse with a person under the age of consent and one count of rape. The New South Wales Court of Criminal Appeal held that evidence of a long relationship between the defendant and the victim meant that “(i)t was quite possible that he had an answer to one of the charges but not to the others”: at 17 per Gleeson CJ.
10. R v OGD (NSW Court of Criminal Appeal, No 60480/96, 3 June 1997, unreported); R v Demeter (1995) 77 A Crim R 462; Van Wyk v The Queen (Queensland, Court of Appeal, 16 December 1993, unreported); R v Bint and Butterworth (South Australia, Court of Criminal Appeal, 19 July 1996, unreported). Contr Kanaveilomani v The Queen [1995] 2 Qd R 642; (1994) 72 A Crim R 492; A Palmer, “Silence in Court — the Evidential Significance of an Accused Person’s Failure to Testify” (1995) 18 University of New South Wales Law Journal 130.
11. R v Milat (Supreme Court of New South Wales, No 70114/1994, Hunt CJ at CL, 22 April 1996, unreported).
12. International Covenant on Civil and Political Rights Art 14(3)(g); Murray v United Kingdom (1996) 22 EHRR 29; Law Society of the Australian Capital Territory, Submission at 4.
13. Evidence Act 1995 (Cth) s 4, 17, 20.
14. Evidence Act 1929 (SA) s 18(1)I; Evidence Act 1910 (Tas) s 85(1)(a); Evidence Act 1906 (WA) s 8(1).
15. Evidence Act 1929 (SA) s 18(1)II; Evidence Act 1910 (Tas) s 85(1)(c); Evidence Act 1906 (WA) s 8(1)(c).
16. The leading case is Weissensteiner v The Queen (1993) 178 CLR 217; 68 ALJR 23; 68 A Crim R 251; 117 ALR 545.
17. Evidence Act 1939 (NT) s 9; Crimes Act 1958 (Vic) s 399(1).
18. Evidence Act 1939 (NT) s 9(3); Crimes Act 1958 (Vic) s 399(3).
19. Weissensteiner v The Queen (1993) 178 CLR 217; 68 ALJR 23; 68 A Crim R 251; 117 ALR 545.
20. Criminal Evidence Act (Northern Ireland) 1923 (Eng) s 1; Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 4(5); Criminal Evidence Act 1898 (61 & 62 Vict.) s 1; Criminal Justice and Public Order Act 1994 (Eng) s 35(4); Criminal Procedure Code (Singapore) s 189, 196.
21. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 2(2), 4(1), (4); Criminal Justice and Public Order Act 1994 (Eng) s 35(1),(3); Criminal Procedure Code (Singapore) s 196. In the United Kingdom, this rule only applies to trials where the defendant is aged 14 and over. The English legislation has been held to apply to a defendant aged 15 with a mental age of 9: R v Friend (1997) 2 All ER 1011, 1019.
22. Criminal Evidence Act (Northern Ireland) 1923 (Eng) s 1; Criminal Evidence Act 1898 (61 & 62 Vict.) s 1.
23. Criminal Justice and Public Order Act 1994 (Eng) s 168, Schedule 11.
24. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 4(6); Criminal Justice and Public Order Act 1994 (Eng) s 35(5); Criminal Procedure Code (Singapore) s 196(4).
25. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 4(2); Criminal Justice and Public Order Act 1994 (Eng) s 35(2). In Singapore, the defendant is called on by the court to give evidence: Criminal Procedure Code s 196(2).
26. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 4; Criminal Justice and Public Order Act 1994 (Eng) s 35(1)(b); Criminal Procedure Code (Singapore) s 196(5). The trial judge will only have to consider whether the defendant’s mental or physical condition makes it undesirable that he or she testify in rare cases, since usually in this situation the defendant is considered unfit to plead: R v Friend (1997) 2 All ER 1011, 1018-1019. Examples of conditions that make it undesirable that the defendant give evidence include schizophrenia and epilepsy: R v Friend (1997) 2 All ER 1011, 1020; R v Harkin and Gordon (England, Court of Appeal, 16 January 1995, unreported) discussed in J Jackson, “Interpreting the Silence Provisions: The Northern Ireland Cases” [1995] Criminal Law Review 587 at 595.
27. Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 2(4); Criminal Justice and Public Order Act 1994 (Eng) s 38.
28. R v Cowan (1995) 4 All ER 939 at 944; 3 WLR 818 at 823-824.
29. Hamil v The Queen (England, Court of Appeal, March 1991, unreported) discussed in Justice, Right of Silence Debate: The Northern Ireland Experience (1994) at 35. See also R v Gallen (Northern Ireland, November 1993, unreported) discussed in Justice at 35; R v Napper (England, Court of Appeal, 14 December 1995, unreported).
30. R v Cowan (1995) 4 All ER 939 at 944-945; 3 WLR 818 at 824.
31. Murray v United Kingdom (1996) 22 EHRR 29.
32. G Davies, “Justice Reform: A Personal Perspective” [Summer 1996] New South Wales Bar Association News 5 at 10-11; K Marks, “‘Thinking Up’ About the Right to Silence and Unsworn Statements” (1984) 58 Law Institute Journal 360 at 361; CR Williams, “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 Law Quarterly Review 629 at 632; Justice Evidence Committee, The Accused as a Witness (London, 1968) at 3-5; cf paras 3.28-3.46.
33. The Hon Justice T Smith, Submission at 1-2; Palmer at 144-145; Weissensteiner v The Queen (1993) 178 CLR 217 at 224-225; 68 ALJR 23 at 26; 68 A Crim R 251 at 256; 117 ALR 545 at 550 per Mason CJ, Deane and Dawson JJ, at 178 CLR 217 at 234; 68 ALJR 23 at 31; 68 A Crim R 251 at 263; 117 ALR 545 at 557-558 per Brennan and Toohey JJ; CR Williams at 652; Australian Law Reform Commission, Evidence Volume 1 (Report 26, (Interim) 1985) at para 258; cf paras 3.55-3.60.
34. The Hon Justice T Smith, Submission at 1-2.
35. Cf para 3.59.
36. Justice Evidence Committee at 4; cf para 3.60.
37. See para 3.75.
38. I Dennis, “The Criminal Justice and Public Order Act — The Evidence Provisions” [1995] Criminal Law Journal 4 at 10, 18; J Jackson, “The Right to Silence: Judicial Responses to Parliamentary Encroachment” (1994) 57 Modern Law Review 270 at 273; Jackson (1995) at 599; S Greer, “The Right to Silence: A Review of the Current Debate” (1990) 53 Modern Law Review 709 at 725; S Nash, “Silence as Evidence: A Common Sense Development or a Violation of a Basic Right?” (1997) 21 Criminal Law Journal 145 at 146 and 148.
39. Dennis at 18; Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at para 4.64; Palmer at 142-143; Stone at 22-23. See paras 3.64, 3.67.
40. R Miller, Submission at 3; DS Shillington, Submission at 1; M Tedeschi QC, Submission at 2; Justice Evidence Committee at 4-5.
41. M Tedeschi QC, Submission at 2.
42. M Tedeschi QC, Submission at 2.
43. The Hon Justice T Smith, Submission at 2. The English Court of Appeal has held that avoidance of cross-examination in relation to prior convictions is not sufficient reason to decline to comment on the defendant’s refusal to testify: R v Cowan (1995) 4 All ER 939 at 944; 3 WLR 818 at 823.
44. Evidence Act 1995 (NSW) s 103 and 104.
45. R v Gallen (Northern Ireland, Kerr J, November 1993) cited in Justice at 30.
46. The Hon Justice T Smith, Submission at 2; D Thiering, Submission at 1; Stone at 22.
47. M Antrum, Submission at 2.
48. R v Barkley (Northern Ireland, November 1992) discussed in S Nash and S Solley, “Limitations on the Right to Silence and Abuse of Process” (1997) 61 Journal of Criminal Law 95 at 96; R Pattendon, “Inferences From Silence” [1995] Criminal Law Review 602 at 607; Jackson (1995) at 601; Greer (1990) at 710 and 727; Justice at 21; G Nash, “The Right to Silence” (1994) 91 Victorian Bar News 62; S Nash at 146; CR Williams at 637-638; Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London 1993) at 56; cf para 3.65.
49. D Birch, “Commentary on Napper” [1996] Criminal Law Review 591 at 593.
50. The Hon Justice T Smith, Submission at 2; Marsdens, Attorneys, Solicitors and Barristers, Submission at 4; Stone at 22.
51. New South Wales Law Reform Commission, Unsworn Statements of Accused Persons (Report 45, 1985); New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Report 80, 1996) at paras 7.28 and 7.29. There is a strong view amongst the majority of Commissioners on this reference that the right to give unsworn evidence should still exist in New South Wales.
52. M Antrum, Submission at 2; J Gallagher, Submission at 3 and 5; L Davies, Submission at 6; Dennis at 10, 18; Jackson (1994) at 273 and 277; Jackson (1995) at 599; Greer (1990) at 725; Harvey; Justice at 5, 6, 19-22; G Nash at 62, 64; S Nash at 148, Royal Commission on Criminal Procedure at paras 4.35 and 4.66; Australian Law Reform Commission, Evidence (Report 38, 1987) at para 74; S Greer and R Morgan (eds), The Right to Silence Debate (Bristol and Bath Centre for Criminal Justice, 1990) at 20; cf paras 3.77 and 3.78.
53. Weissensteiner v The Queen (1993) 179 CLR 217 at 245 per Gaudron and McHugh JJ (dissenting), 68 AJLR 23; 68 A Crim R 251; 117 ALR 545.
54. Palmer at 141.
55. J Gallagher, Submission at 6; cf para 3.75.
56. Australian Law Reform Commission (1985) at 259 and 260; cf para 3.79.
57. R v Condron (England, Court of Appeal, 4 November 1996, The Times).
