4.1 In New South Wales, the defendant has the right to decide whether to testify at trial. The judge and any party other than the prosecution may comment to the jury if the defendant does not give evidence, although there are restrictions on the nature of comment which is permitted. Comment by the prosecution is expressly prohibited.

4.2 Although the right to silence at trial is recognised in all common law countries, the law in relation to comment on the fact that the defendant did not give evidence varies, both within Australia, and overseas. Some jurisdictions prohibit comment by both the judge and the prosecution. Other jurisdictions specifically permit the jury to draw very strong adverse inferences, and also permit the trial judge and the prosecution to comment. This chapter examines the right to silence at trial in New South Wales and the position in other jurisdictions. It considers the arguments for and against modifying the right to silence at trial, and includes the Commission’s recommendations.

HISTORY OF THE RIGHT TO SILENCE AT TRIAL

4.3 The defendant at common law was always considered incompetent to give evidence at trial. During the late sixteenth century, the English Courts of Star Chamber and High Commission developed the practice of compelling suspects to take an oath known as the “ex-officio oath” and, without formal accusation, to answer questions put by both the judge and the prosecutor. Failure to either take the oath or answer questions attracted severe sanctions, including torture. This practice was subsequently held to be unlawful and these bodies were abolished.¹

4.4 The practice of permitting the defendant to make an unsworn statement at trial was developed by the judiciary in the nineteenth century as a way of enabling defendants to say something in their defence.² This practice was recognised as a statutory right in 1883.³

4.5 The competence of defendants to testify in their own defence was established for summary offences in 1882.⁴ This was extended to indictable offences in 1891.⁵ The right to remain silent at trial was expressly preserved.⁶ Palmer has commented that, in light of these historical developments, “it might be more accurate to talk of the accused having a right to testify, rather than a right to not testify”.⁷

4.6 In 1893, the Full Bench of the Supreme Court of New South Wales held that the trial judge was permitted to direct the jury to draw adverse inferences from the fact that the defendant did not give evidence at trial.⁸ In 1898, judicial comment on the exercise of the right to silence at trial was prohibited by statute.⁹ In Bataillard v The King,¹⁰ Justice Isaacs summed up the developments as follows:

A new opportunity had been afforded to a prisoner to establish his innocence if he could. But reasons other than a sense of guilt, such as timidity, weakness, a dread of confusion or of cross-examination, or even the knowledge of a previous conviction, certainly in a summary proceeding, and perhaps in the case of a trial for an indictable offence, might easily prevent the accused person from availing himself of the new means permitted by law. Hence the legislature determined to prevent the enactment, if not used by the prisoner, from being employed as a means of inculpation.

4.8 The right to make an unsworn statement at trial was abolished in New South Wales in 1994, although the right still exists in some residual trials.¹⁴ Unsworn statements have now been abolished in all Australian jurisdictions.

4.9 The Evidence Act 1995 (NSW) reintroduced some limited permitted comment at trial on the fact that the defendant elected not to testify. Section 20 provides that the trial judge, and any party other than the prosecutor, may comment on the inferences the jury may draw from the fact that the defendant elected not to testify. Any suggestion that the defendant did so because of a belief of guilt is prohibited.¹⁵ This is consistent with the common law approach to comment.¹⁶

THE LAW IN NEW SOUTH WALES

Evidence Act 1995 (NSW)

4.10 In criminal trials in New South Wales, the defendant is not competent to give evidence for the prosecution¹⁷ and is a competent, but not compellable, defence witness.¹⁸

4.11 The Evidence Act 1995 (NSW) s 20 regulates the comment which can be made when a defendant on trial for an indictable offence does not testify. 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).

4.13 Despite the prohibition on prosecution comment, there is authority that, in the course of the final prosecution address to the jury, the prosecution is entitled to refer to the judicial comment on the fact that the defendant did not give evidence. However, the prosecution must not imply that it adopts the judge’s comment. A high degree of caution is required by the prosecution in this situation.¹⁹

Common law

4.14 In Weissensteiner v The Queen, in which the prosecution relied on circumstantial evidence, the High Court upheld a direction by a trial judge that an inference of guilt could more safely be drawn by a jury if the defendant elected not to give evidence about facts which must be within his knowledge.²⁰ The majority held that adverse inferences may be drawn from a defendant’s election not to testify where the evidence establishes a prima facie case, the defendant could reasonably have been expected to testify, and the election not to do so is clearly capable of assisting the evaluation of the evidence before the court.²¹ The Court distinguished the High Court’s decision in Petty v The Queen,²² which was decided two years earlier, on the basis that the facts in Weissensteiner v The Queen concerned silence at trial, rather than silence before trial.²³

4.15 The majority noted that the fact that a defendant elected not to testify is not, of itself, evidence of an implied admission of guilt. It cannot fill in gaps in the prosecution case The judge should explain that the defendant is entitled to remain silent, and that there may be reasons for doing so which are not related to guilt. The judge may give examples of possible reasons.²⁴

4.16 The High Court’s decision in Weissensteiner v The Queen arose out of a murder trial in Queensland, where there is no prohibition on comment on the election of a defendant not to testify. However, the prerequisites for comment established by the High Court are consistent with s 20 of the Evidence Act 1995 (NSW) and must be considered in addition to the limit on comment expressly stated in s 20.²⁵

4.17 In RPS v The Queen²⁶ the complainant gave direct evidence of the defendant’s guilt. The defendant elected not to testify at his trial. A majority of the High Court held that a Weissensteiner direction should not have been given in these circumstances, since this had the effect of suggesting guilt from silence, and hence breached s 20 of the Evidence Act 1995 (NSW). The Court held that a Weissensteiner direction may be appropriate in cases where an otherwise damning inference was uncontradicted by evidence or an explanation that could only come from the defendant. However, where the prosecution case depended upon direct evidence, the question was whether that evidence was accepted beyond reasonable doubt and no increased likelihood of proof arose from the defendant’s silence, for which there might be a number of explanations, including the opinion that the evidence adduced does not prove the charges. To hold otherwise is in effect to suggest that the defendant is bound to give evidence.²⁷

4.18 In R v OGD,²⁸ the New South Wales Court of Criminal Appeal suggested that, as a practical matter, it will often be appropriate for the trial judge to raise with defence counsel, in the absence of the jury, the question of whether the jury should be given a direction about the fact that the defendant has elected not to testify. This gives defence counsel an opportunity to suggest to the judge possible reasons for the defendant’s silence which would make it unfair to draw an adverse inference, and debate the fairness of the direction in the particular circumstances of the case.²⁹

4.19 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 election not to testify may differ for the different charges.³⁰

How often defendants remain silent at trial

4.20 Most judges, magistrates, legal practitioners and police prosecutors surveyed by the Commission reported that defendants almost never elected not to testify at trial.³¹

OTHER JURISDICTIONS

Australia

4.21 In Federal trials and trials conducted in the Australian Capital Territory, the law regulating comment where the defendant elects not to testify is identical to the position in New South Wales.³² In South Australia, Western Australia and Tasmania, the right to silence at trial is expressly recognised in legislation.³³ In these jurisdictions, as in New South Wales, the prosecution is expressly prohibited from commenting to the jury on the fact that the defendant did not give evidence.³⁴ However, unlike New South Wales, there is no statutory regulation of comment by the trial judge in these states. Judicial comment is regulated by the common law.³⁵ In Victoria and the Northern Territory, the right to silence at trial is also expressly provided for by legislation.³⁶ In these states, neither the judge nor the prosecutor is permitted to comment where the defendant elects not to testify.³⁷ Queensland has no statutory regulation of the right to silence at trial. Judicial comment is regulated solely by the common law in this jurisdiction.³⁸

4.22 All common law countries recognise the right to silence at trial. In some jurisdictions, including Canada and the United States, the right to silence at trial is a constitutional right. On the other hand, the adverse inferences available at trial in Singapore, Northern Ireland, England and Wales when a defendant has not answered police questions, are also available when the defendant does not give evidence.

Canada

4.23 The Canadian Charter of Rights and Freedoms (“the Charter”) provides that any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.³⁹ The Charter also states that every person has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,⁴⁰ and it codifies the common law presumption of innocence and the right to a fair trial.⁴¹ The Canada Evidence Act prohibits the trial judge and the prosecution from commenting on the defendant’s silence at trial.⁴²

4.24 The Supreme Court of Canada has held that the defendant’s silence at trial should not be used against him or her in building the prosecution case. The trial judge is entitled to comment that the prosecution’s evidence on a particular point was not contradicted by the defendant. This must be accompanied by a direction to the jury not to speculate about possible contradictory evidence which was not led.⁴³

England, Wales

4.25 Several common law jurisdictions have modified the right to silence at trial, by enacting legislation which permits the tribunal of fact to draw adverse inferences where the defendant fails to answer specific questions or to give evidence at trial. In these jurisdictions, the trial judge and the prosecution are permitted to comment to the jury on the inferences which may be drawn in this situation. In Singapore, the relevant provision has been in force since January 1977.⁴⁴ The Northern Ireland provisions were enacted in November 1988.⁴⁵ Section 35 of the Criminal Justice and Public Order Act 1994 (Eng) modifies the right to silence at trial in England and Wales. This section is set out in full at Appendix “C”.

4.26 The adverse inferences that can be drawn from the defendant’s silence under these provisions are not limited to specific inferences from specific facts but may include, as a matter of common sense, an inference that the defendant is guilty of the offence charged where the evidence clearly calls for an explanation which the defendant ought to be in a position to give.⁴⁶

4.27 The English Court of Appeal has held that the failure to draw adverse inferences under s 35 of the Criminal Justice and Public Order Act 1994 (Eng) could only be justified where there was some “evidential basis for doing so or some exceptional factors in the case making that a fair course to take”.⁴⁷ Section 35 provides that, if a defendant is under fourteen years of age or it is otherwise “undesirable” for him to give evidence, the adverse inferences which would otherwise be available cannot be drawn.

4.28 The fact that the defendant participated in a police interview or, alternatively, the fact that he or she was not interviewed by police, is not a basis for the trial judge refusing to comment on the inferences which the jury may draw from the defendant’s failure to give evidence.⁴⁸

4.29 The English Court of Appeal has approved Model Directions to juries in relation to the inferences available from the defendant’s failure to give evidence.⁴⁹ It is in the following terms:

DEFENDANT’S TOTAL OR PARTIAL SILENCE AT TRIAL

The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he has not given evidence because failure to give evidence cannot, on its own, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict.

1. In the first place when considering the evidence as it is now, you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution.

[The defendant did answer questions in interview, and he now seeks to rely on those answers, which are of course evidence in the case – evidence of what he said then. It is a matter for you to decide what weight you should give to them, but you are entitled to bear in mind that those answers were not given here before you, they were not given on oath and the prosecution has had no opportunity to test them before you in cross-examination.]

2. In the second place, if you think in all the circumstances it is right to do so, you are entitled, when deciding whether the defendant is guilty of the offence(s) charged, to draw such inferences from his failure to give evidence as you think proper.

[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence. The evidence is (here set out the evidence). If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence, do not hold his silence against him. If, on the other hand, it does not in your judgement provide an adequate explanation for his absence from the witness box, then you may, if you think it right, hold his failure to give evidence against him.]

What inference can you properly draw from the defendant’s decision not to give evidence? If, and only if, you conclude that there is a case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is.

If, in your judgment, the only sensible reason for his decision not to give evidence is that he had no explanation or answer to give, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.

You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question the jury may draw such inferences as appear proper. That means they may hold it against you. (EMPHASIS ADDED.)

4.32 The Model Directions were said by the Court of Appeal to be “in general terms a sound guide”, and it was pointed out that it might “be necessary to adapt or add to it in the particular circumstances of an individual case”.⁵⁰ The court also said a judge might, in some circumstances, think it right to direct or advise a jury against drawing an adverse inference. The court added that, as the discretion was untrammelled, both as to whether to draw an adverse inference and as to its nature, extent and degree, it should not set out the bounds of either⁵¹ and did not think it wise to give examples. Accordingly, it appears that directions complying with the Model Directions will suffice unless the case is an exceptional one.

4.33 The European Court of Human Rights has upheld the validity of the legislation modifying the right to silence at trial in Northern Ireland. In Murray v United Kingdom, the Court, by a majority of 14 to 5, upheld the decision of a trial judge in Northern Ireland to draw strong unfavourable inferences from the defendant’s failure to give evidence.⁵² The majority held that the strong adverse inferences drawn by the trial judge did not necessarily deprive the defendant of a fair trial as guaranteed by article 6 of the European Convention on Human Rights. The statute was merely a “formalised system which aims at allowing commonsense implications to play an open role in the assessment of the evidence”.⁵³ It appears that more defendants in England and Wales give evidence at their trial since s 35 of the Criminal Justice and Public Order Act 1994 (Eng) was enacted.⁵⁴

REFORM OF THE RIGHT TO SILENCE AT TRIAL

Previous inquiries into the right to silence at trial

Australia
4.34 The Australian Law Reform Commission (“ALRC”) published its interim report on evidence in 1985.⁵⁵ The Interim Report recommended permitting restricted judicial comment on the defendant’s silence at trial. It recommended that trial judges be prohibited from suggesting that the defendant elected not to testify because he or she was guilty of the offence concerned. The ALRC recommended that the prosecution be prohibited from commenting to the jury on the defendant’s silence.⁵⁶ Two years later, the ALRC published its final report on evidence, reiterating these recommendations.⁵⁷ The ALRC’s recommendations were adopted in New South Wales in 1995.⁵⁸

4.35 In 1985, the New South Wales Law Reform Commission published a report on unsworn statements, which recommended that the trial judge be prohibited from commenting upon the defendant’s election not to testify.⁵⁹ This Report recommended that the prosecutor be permitted to comment, subject to leave, where this was raised by the defendant or any co-accused in the presence of the jury.⁶⁰ The Commission’s report on evidence was published in 1988.⁶¹ The Commission recommended that if the defence raised the fact of the defendant’s election not to testify as an issue in the trial, the prosecution, but not the trial judge, should be permitted to comment to the jury on the adverse inferences which the jury could draw. The Commission also recommended preserving the trial judge’s power to comment on prejudicial material introduced by the prosecution by way of comment on the defendant’s silence.⁶²

4.36 In March 1999, the Victorian Scrutiny of Acts and Regulations Committee published a report on the right to silence which recommended that the existing Victorian law governing the right to silence at trial be repealed and replaced with a provision based on s 20(2) of the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW).⁶³

4.37 The Law Reform Commission of Western Australia recently reviewed the right to silence at trial. The Commission recommended the introduction of legislation to clarify the nature of comment permitted where the defendant does not testify, and that the power to comment be extended to the prosecution.⁶⁴

United Kingdom
4.38 The Justice Evidence Committee (“JEC”) published its report on the defendant as a witness in 1968.⁶⁵ The JEC proposed that the prosecution be permitted to comment to the jury on the defendant’s election not to give evidence.⁶⁶ The JEC criticised the “undue moderation” of some trial judges in their jury directions and proposed a more forthright approach to judicial comment.⁶⁷ The JEC also proposed that the defendant should be informed of the right to give evidence by the trial judge, in the presence of the jury.⁶⁸

4.39 The Criminal Law Revision Committee (“CLRC”) published its report on evidence in 1972.⁶⁹ The CLRC recommended that, if the defendant refused to give evidence at trial or refused without good cause to answer any question, the court or jury again be permitted to “draw such inferences from the refusal as appear proper”.⁷⁰ It recommended that both the prosecution and the trial judge be permitted to comment to the jury on the inferences available.⁷¹ The CLRC also recommended that before the presentation of the defence case at trial, the trial judge call on the defendant to give evidence and explain the consequences of failure to do so.⁷² The CLRC recommendations were strongly opposed and not implemented.⁷³

4.40 The Royal Commission on Criminal Procedure reported in 1981.⁷⁴ The Commission, with one dissentient, recommended against modifying the right to silence at trial.⁷⁵

4.41 The Working Group on the Right to Silence published its report in 1989.⁷⁶ The Group recommended that the prosecution be permitted to comment to the jury on the significance of the defendant’s failure to give evidence to the same extent that judicial comment was at that time permitted at common law. The Group also adopted the recommendation of the CLRC that judges make more frequent and robust use of their right to comment.⁷⁷ In respect of summary trials, the Group recommended that magistrates should direct themselves as to the significance of the defendant’s failure to testify.⁷⁸

4.42 The Royal Commission on Criminal Justice published its report in 1993.⁷⁹ A majority of the Commission rejected the recommendations of the CLRC and the Working Group on the Right to Silence, recommending that the existing law not be modified.⁸⁰

Discussion of the legislation in England and Wales

4.43 The Commission’s view of s 35 of the Criminal Justice and Public Order Act 1994 (Eng) focuses essentially on three considerations. The first concerns the procedures by which the jury is invited to consider drawing such inferences from the defendant’s election not to testify at his or her trial in England and Wales. The second relates to the reasonableness of drawing adverse inferences in all cases where the defendant elects not to testify. Finally, the third consideration concerns the appropriate significance of the principles that defendants should not be required to incriminate themselves and the prosecution bears the onus of proving guilt beyond reasonable doubt.

4.44 A useful starting point is the warning addressed to the defendant in the presence of the jury, as required by the Model Directions, that informs the defendant as to the possible risks of remaining silent, including the risk that the jury “might hold it against” him or her (set out at paragraph 4.29). What the jury might make of this is conjectural but its threatening character is unmistakable and its impact likely to be considerable. It is not, therefore, the fact of the silence alone which justifies a “proper” inference to be drawn. Rather, that silence, despite the warning, suggests to the jury that the defendant’s silence at trial is, of itself, significant additional material tending to prove guilt. The warning effects a marked change in procedure, focussing the trial on whether the defendant has a defence rather than, as hitherto, whether the Crown has proved its case beyond reasonable doubt.

4.45 The need to instruct the jury as to the precise significance of the defendant’s silence in the particular circumstances of the case is not adverted to in the Model Directions. Thus, paragraph 1 invites the jury to bear in mind that there is no evidence from the defendant that undermines, contradicts or explains evidence adduced by the prosecution. However, there is no requirement to explain what the significance of the omission might be by reference to the evidence in the case, drawing the distinction, for example, between matters of which the defendant may have personal knowledge and those about which he can only comment. Much of the prosecution case might be unpersuasive or doubtful, or contradicted or qualified by other evidence, perhaps called by the defence. Especially in light of the reasons that a defendant might have for not giving evidence apart from any possible consciousness of guilt (which must be speculative), the prosecution case might not gain much from the defendant’s silence. Evaluations of this kind are often not simple, and common sense will often replace rather than inform careful analysis.

4.46 Paragraph 2 of the Model Directions invites the jury to draw such inferences which it might “think proper” from the defendant’s silence at trial, but it gives no guidance as to what those inferences might appropriately be, including, especially, possibly innocent explanations. It seems to the Commission that, unless there are careful directions from the trial judge, a jury will be likely to give too much significance to the fact that a defendant has elected not to testify. In Australia, the High Court has enunciated the appropriate content of directions where a defendant has elected not to give evidence.⁸¹

4.47 A conclusion that the defendant has no answer to or explanation for the prosecution case will usually be tantamount to concluding that he or she is guilty. However, there is a very important distinction between, on the one hand, taking into account the fact that the defendant gives no answer or explanation and, on the other hand, inferring that the defendant has no answer or explanation. The difference is more marked when regard is had to the speculative character of the inference. The latter reasoning, which appears to be that required or, at least, permitted by the English legislation, makes very substantial inroads into the presumption of innocence.

4.48 An example of how far reaching the legislation is may be found in R v Friend,⁸² where the Court of Appeal upheld a trial judge’s ruling that it was not “undesirable” within the meaning of s 35 that a fifteen year old boy with a mental age of between nine and ten should give evidence and his directions to the jury that they were entitled to draw adverse inferences from his election not to testify. The Court of Appeal held that there were no exceptional circumstances making it fair to direct or advise the jury against drawing adverse inferences, not only as to specific facts but also as to guilt: in deciding not to give evidence, the defendant took the risk of the consequences of so doing. In Australia, the question how, in the circumstances, more could be inferred from the defendant’s silence than that his lawyers thought it unwise for him to give evidence would be a very significant one. The Commission considers that to permit any adverse inference to be drawn in such circumstances would be inappropriate.

4.49 There are a number of reasons that might lead an innocent person to elect not to testify, which are discussed at paragraphs 4.65 to 4.73. The Judicial Studies Board comments that the “judge should stop a defence counsel, if necessary during his final speech, from seeking to give such reasons”, a reference to the Lord Chief Justice’s remarks in R v Cowan⁸³ to the effect that counsel, in the absence of evidence, could not hypothesise about the reasons for silence. However, s 35 is clearly an invitation (indeed, perhaps, a direction) to the jury to attempt to determine the defendant’s reasons for electing not to testify. In the nature of the case, the defendant’s reasons cannot be before them. An appeal to common sense⁸⁴ simply disguises the invocation of an irresolvable forensic dilemma. If there be a legitimate explanation for not giving evidence, and the defendant is the only one who can give it, then how can he or she give it without giving evidence? Even in the absence of evidence, it might be reasonable to infer that the defendant might fear that the jury would disbelieve him or her because of personal attributes having little or nothing to do as a matter of objective rationality with guilt. This could well be a reasonable judgment. Common professional experience suggests that such cases are not infrequent. Australian authority would require some directions from the judge to the effect that there might be innocent explanations for the election to remain silent at trial.⁸⁵

4.50 The Commission concludes that the practical result of the English legislation is that the right to silence remains only in the sense that it cannot be the cause of direct punishment⁸⁶ . The choice in most cases will be between testifying or having guilt inferred from electing not to do so. The prosecution needs only to prove a case requiring explanation from the defendant and it can then hope to prove guilt out of his or her mouth. This undermines the requirement that the prosecution must prove its case beyond reasonable doubt as well as the privilege against self-incrimination.

4.51 It is important to appreciate that the Commission’s objections to the English scheme do not depend upon merely logical or technical issues but reflect its view of the importance of the fundamental rules of criminal procedure as elements of the rule of law.

The case for drawing adverse inferences from silence at trial

4.52 Proponents of the English position argue that the current restrictions on permitted inferences should be removed because the fact that the defendant has elected not to testify is, of itself, evidence of guilt. Other arguments in favour of permitting some adverse comment are that juries are likely to draw adverse inferences from the defendant’s silence at all events and thus would benefit from guidance on this issue, and that there are significant distinctions between silence in response to police questions and silence at trial.

Relevant evidence
4.53 The principal argument for modifying or removing the existing restrictions on the nature of adverse inferences permitted to be drawn from the defendant’s election not to testify is that the defendant’s silence is of itself relevant evidence indicative of guilt. It is argued that an innocent person would take the opportunity at trial to express his or her innocence and to contest the prosecution evidence.⁸⁷ Others go further, arguing that the right to remain silent at trial is exploited by guilty defendants to secure an acquittal, and that modifying the law would result in more convictions.⁸⁸

4.54 The Commission’s research indicates that defendants rarely elect not to testify.⁸⁹ It follows therefore, that modifying the right to silence at trial would be unlikely to significantly increase convictions. Most judges and legal practitioners who participated in the Commission’s survey responded that they were unable to say how the fact that the defendant elected not to give evidence generally affected the outcome of the trial.⁹⁰ Of those participants who did have a view on this issue, most prosecutors reported that silence at trial generally contributed to acquittals, while most defence lawyers reported that silence sometimes contributed to acquittals and sometimes contributed to convictions, and equal numbers of judges reported that silence generally did not affect the outcome of the case, and that it generally contributed to convictions.⁹¹

4.55 Relevance, by itself, does not mean that evidence should be admitted, especially where it is unfair to do so. Not only must the risk of unfair prejudice to the defendant be considered but also the application of fundamental rules of criminal jurisprudence, such as the presumption of innocence and the privilege against self incrimination.⁹²

4.56 Even if the defendant’s silence is relevant in some way, precisely what might reasonably be inferred from it is unclear in light of the range of possible reasons that the defendant might have for not giving evidence. The possible inference that defendants might be forced to admit incriminating facts if they gave evidence, and that this explains their silence, is but one amongst a number of perhaps equally likely explanations. Even if it were the most likely explanation, its selection must involve inappropriate speculation.

4.57 The procedure in England and Wales seeks to deal with this difficulty, in part, by the warning to the defendant in the presence of the jury that if he or she remains silent, in effect they may be taken to admit their guilt. As is pointed out at paragraphs 4.43 to 4.51, this procedure virtually compels the defendant to give evidence. Moreover, it is obvious that the true reason why the defendant elected not to testify may be subject to considerable doubt. Hence the justice, as well as the rationality, of drawing the adverse inference that the defendant is guilty must be questioned.

4.58 It is important to consider this question in a practical way, bearing in mind the wide range of differing personal attributes (amongst others, maturity, education, intelligence, life experience, relationships and emotions) of defendants, the unpredictable circumstances in which criminal charges arise, the course of the investigation, the relationships between protagonists and the like. There is no typical defendant. Crimes and trials can only be regarded as typical by ignoring important details. Accordingly, generalisations about what an innocent person might or might not do in the trial context are necessarily mere assumptions and can give no sensible guidance about what to make of the silence of a particular defendant in a particular trial, especially when there is no explanation from the defendant as to why he or she has decided against testifying.

4.59 The defendant might think that the prosecution case does not come up to proof; if there are multiple charges and the defendant has a complete answer to some but not all, he or she might well be advised to remain silent, especially if the prosecution case is a weak one.⁹³ Experienced practitioners know that the perils of giving evidence, including especially cross-examination, are very real and may be extremely prejudicial even where the defendant is innocent. This is especially so where the prosecution is not a strong one, when the defendant may well be advised that he or she would be best served by not giving evidence and leaving it to the good sense of the jury to acquit.

The need to guide juries
4.60 It is argued that comment on the inferences which can be drawn where the defendant does not testify is essential because juries will place too much weight on this unless guided by judicial direction.⁹⁴ On the other hand, it has been suggested that juries hesitate to draw any inferences from the defendant’s silence without receiving judicial guidance.⁹⁵ The validity of these arguments can only be assessed by speculation, since juries are not required to give reasons for their decisions.

4.61 The Commission accepts that juries in New South Wales are generally aware that the defendant is entitled to testify at his or her trial. In accordance with the general rules governing directions to juries, especially where evidence may be unfairly prejudicial or otherwise should be treated with caution, there appear to be compelling reasons for requiring directions to be given.

4.62 An appropriate correct direction would have the following elements: the facts from which an inference of guilt may be drawn must be clearly identified; the omitted facts or explanation should be specified; those facts must be easily perceived to be within the defendant’s knowledge; the jury must not conclude that the defendant declined to give evidence because he or she is guilty; there are many reasons why a defendant may not want to give evidence and the jury should not speculate about them; and the use to which silence may be put must be restricted to the strengthening of an inference of guilt from the facts proved.⁹⁶

Differences between silence when questioned by police and silence at trial
4.63 There are several significant differences between the questioning of suspects by police and the defendant’s opportunity to testify at trial. 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 with the situation where a suspect remains silent when questioned by police who are still gathering evidence about the case, without necessarily knowing details of other prosecution evidence. 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.⁹⁷ Finally, the election not to testify is made in a public forum, in the presence of the jury and an impartial trial judge. Therefore, silence at trial is less likely to be misreported or misinterpreted than in a police interrogation.

The case against drawing adverse inferences from silence at trial

4.64 There are a number of arguments against permitting any comment on the fact that the defendant has remained silent at the hearing or trial. These include the argument that there are many reasons for not testifying which are consistent with innocence, and the concern that comment (either in general and even if appropriately restricted) would undermine the burden of proof and the presumption of innocence.

Reasons for silence consistent with innocence
4.65 Several submissions challenged the argument that an innocent defendant would naturally elect to give evidence, arguing that there are many valid reasons for remaining silent at trial which are consistent with innocence. In general, it can be accepted that jurors will be reasonable, open-minded and unbiased, but any realistic assessment must consider that probably they will also have a wide range of human foibles, sympathies, antipathies, education and intelligence. A defendant could reasonably feel that, although innocent, a jury might unfairly form an adverse view of his or her veracity or character, especially if the defence involved or disclosed some conduct which was disgraceful or questionable.

4.66 Personal characteristics, communication factors. Defence counsel may advise a defendant to remain silent at trial because he or she would or might have difficulty understanding questions, or perform badly as a witness, due to difficulties communicating (especially if they do not have a good understanding of English), or personal characteristics.⁹⁸ For example, the National Children’s and Youth Law Centre stated that defence lawyers will often advise children facing charges not to testify because of concerns about their ability to perform as a witness, particularly under aggressive cross-examination.⁹⁹ An adult client may appropriately be advised against testifying for similar reasons. The Commission’s research indicated that the most frequent reason defence lawyers advised clients against testifying at their trial was concern that the defendant, for reasons not related to guilt or innocence, would perform badly as a witness.¹⁰⁰

4.67 Hostility, confusion and evasiveness are all ordinary human characteristics and responses to the extremely stressful experiences of being on trial. An innocent defendant may well respond in one or more of these ways when giving evidence, with the risk that the jury will misinterpret these responses. A number of defence counsel who participated in the Commission’s survey indicated that they had advised clients against giving evidence for this reason.

4.68 The Commission’s research indicated that a number of defence lawyers also advised their clients against testifying out of concern about the psychological impact on their client of giving evidence, particularly cross-examination.¹⁰¹

4.69 Tactical considerations. There may also be valid tactical reasons for advising the defendant not to give evidence where he or she provided a detailed statement to police, especially where the interview is videoed, or where the prosecution case is very weak.¹⁰² This was a common reason cited by defence lawyers who participated in the Commission’s research for advising their clients not to testify.¹⁰³

4.70 The defendant may be advised against testifying to avoid cross-examination on prior convictions or questioning in relation to other outstanding charges.¹⁰⁴ A number of defence lawyers surveyed by the Commission reported this as a reason for advising clients against testifying.¹⁰⁵ The defendant may also decline to give evidence, or give unsatisfactory evidence, due to fear of repercussions against him or herself, family or associates.¹⁰⁶ The defendant may not remember the events in issue,¹⁰⁷ or memory may be unreliable and the failure or confusion of recollection thus be unfairly incriminating.

4.71 Abolition of unsworn evidence. Until 1994, defendants in New South Wales had the option of giving unsworn evidence at trial.¹⁰⁸ 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 and to protect vulnerable defendants from harm caused by hostile cross-examination.

4.72 Several submissions and commentators have argued that the importance of the right to silence has increased in New South Wales since the abolition of the option of giving unsworn evidence. It is argued that, if a defendant was able to give unsworn evidence, many of the reasons for electing not to testify would be alleviated.¹⁰⁹ Palmer argues that, although defendants testify in their own defence, in the absence of any right to give unsworn evidence, testifying will inevitably expose a defendant to cross-examination, the object of which is clearly to obtain incriminating information.¹¹⁰ The Victorian Court of Appeal has also suggested that there is a need for further consideration of the application of Weissensteiner v The Queen¹¹¹ to cases where the defendant does not have the option of giving unsworn evidence.¹¹²

4.73 In 1985, the Commission recommended that unsworn statements be retained.¹¹³ More recently, the Commission recommended that the option of giving evidence not subject to cross-examination be reintroduced for defendants with an intellectual disability.¹¹⁴

Fundamental principles
4.74 Several submissions argued that modifying the right to silence at trial would undermine the principles that the defendant is presumed innocent until proven guilty and that the prosecution carries the burden of proof, which are fundamental to the criminal justice system. It was argued that this would, in practice, lead to defendants feeling a sense of pressure or compulsion to testify, in order to avoid such comment and inferences.¹¹⁵ Another submission criticised the existing position, arguing that the inferences which can be drawn under s 20 of the Evidence Act 1995 (NSW) and Weissensteiner v The Queen¹¹⁶ also undermine these fundamental principles.¹¹⁷

4.75 Not all submissions or commentators accept this.¹¹⁸ The Commission’s view is that the restrictions on the nature of comment which now apply as a consequence of the decision of the High Court in RPS v The Queen¹¹⁹ ensure that the adverse inferences which may properly be drawn are not inconsistent with these fundamental principles.

4.76 Several submissions argued that international law prevents New South Wales from modifying the right to silence at trial to allow increased comment by the trial judge, or any comment by the prosecution.¹²⁰ However, there is no internationally accepted prohibition on the drawing of adverse inferences from the silence of the defendant at trial. As discussed in paragraph 4.33, the European Court of Human Rights has upheld the Northern Ireland provision which modifies the right to silence at trial, holding that the legislation was not inconsistent with the European Convention on Human Rights.¹²¹

The Commission’s recommendation

4.77 Most submissions received as part of this review which addressed the right to silence at trial argued against any change to the existing law.¹²² Several submissions argued that neither the trial judge nor the parties should be permitted to comment on the fact that the defendant elected not to testify.¹²³ Only one submission argued in favour of the English position.¹²⁴

4.78 One submission argued that defendants should be treated as compellable witnesses at trial.¹²⁵ The Commission is of the view that this is not only inconsistent with the basic principle that the prosecution must prove the case it brings against the subject but would represent a potentially oppressive removal of the presumption of innocence.

4.79 The opportunity of a defendant to give evidence at trial is different from the opportunity to respond to police questioning in a number of significant respects.¹²⁶ The Commission’s view is that these differences justify the limited which the judge is entitled to make when a defendant elects not to testify at his or her trial.

4.80 The Commission considers that the English provisions and the Model Directions, are not only unacceptably imprecise and based on unjustified suppositions but are, in principle, wrong. They are fundamentally inconsistent with the requirement, cognate to the presumption of innocence, that the prosecution bears the burden of proving the charge it brings against an accused citizen.

Recommendation 14
The Commission recommends that, subject to Recommendation 15, the present law concerning the right to silence at trial should not change.

4.81 As has been mentioned,¹²⁷ s 20 of the Evidence Act 1995 (NSW) provides that the judge, but not the prosecutor, may comment on the election of the defendant not to give evidence. A number of submissions argued that the prosecutor, as well as the trial judge, should be permitted to comment to the jury on the inferences which can be drawn in this situation.¹²⁸ This option was specifically raised by the Commission in DP 41.¹²⁹

4.82 The danger of the current position is that the jury may interpret the judicial direction as an indication that the judge has an opinion adverse to the defendant and, at all events, give the issue undue significance. There is also a degree of unfairness in not permitting the prosecution to comment on matters which might well be the subject of submissions to the jury by the defence, in anticipation of comments from the judge.¹³⁰ The Commission is of the view that the prosecutor should be permitted to make an appropriate comment to the jury. The issue would thus simply form part of each party’s case rather than a matter raised by the judge alone. The judge’s directions would then be received in their right sense as providing guidance on the appropriate legal principles as they applied to that issue.

4.83 One submission argued that changing the law would require an amendment to s 20 of the Evidence Act 1995 (NSW), which would introduce a lack of uniformity between the Commonwealth and New South Wales Evidence Acts.¹³¹ The Commission acknowledges that its recommendation to extend the power to comment to prosecutors would create a lack of uniformity. However, as the Act applies only to the Commonwealth, New South Wales, the Australian Capital Territory and the Northern Territory, this consideration is not as significant as it might otherwise be.

4.84 The Commission recommends that the prosecution’s application for leave to comment on the defendant’s silence at trial should be made in the absence of the jury. Leave may be granted subject to conditions on the content of the proposed prosecution comment. This would ensure that due consideration was given to the possible reasons for the defendant’s silence consistent with innocence discussed in paragraphs 4.63 to 4.73 and the fundamental principles discussed in paragraphs 4.74 to 4.76. Judicial supervision of the proposed prosecution comment would also provide protection against comment which went beyond that permitted by s 20 of the Evidence Act 1995 (NSW).

4.85 The Commission envisages that applications for prosecution comment would ordinarily be granted, unless there were exceptional factors in the case. The fact that the defendant was not represented would be a relevant consideration for the trial judge in determining whether to grant leave.

Recommendation 15
The Commission recommends that prohibition on prosecution comment in s 20(2) of the Evidence Act 1995 (NSW) should be removed. Prosecutors should be permitted to comment upon the fact that the defendant has not given evidence, subject to the restrictions which apply to comment by the trial judge and counsel for the defendant and any co-accused. The prosecution shall be required to apply for leave before commenting.

1. J Wigmore, Evidence in Trials at Common Law (McNaughton Rev, Little Brown, Boston, 1961) at para 2250; 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 Convention (Melbourne, 18-21 September 1997) at para 9; M Weinberg, “The Right to Silence – Sparing the Judge From Talking Gibberish” paper presented at session 24 of the 30th Australian Legal Convention (Melbourne, 18-21 September 1997) at 3-4; T O’Gorman, “Right to Silence” paper presented at session 24 of the 30th Australian Legal Convention (Melbourne, 18-21 September 1997) at 1; K Marks, “‘Thinking Up’ About the Right of Silence and Unsworn Statements” (1984) 58 Law Institute Journal 360 at 370-371; J Wood and A Crawford, The Right to Silence (Civil Liberties Trust, London, 1989) at 5-6; CR Williams, “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 Law Quarterly Review 629 at 629-630; Justice Evidence Committee, The Accused as a Witness (London, 1968) at 1; S Greer, “The Right to Silence: A Review of the Current Debate” (1990) 53 Modern Law Review 709 at 710 and 711; J Michael and B Emmerson, “The Right to Silence” (1995) 1 European Human Rights Law Review 4 at 5; S Odgers, “Police Interrogation and the Right to Silence” (1985) 59 Australian Law Journal 78 at 83.

2. Marks at 372; S Nash, “Silence as Evidence: A Commonsense Development of a Violation of a Basic Right?” (1997) 21 Criminal Law Journal 145; Criminal Law Revision Committee, Evidence (General) (Report 11, London, 1972) at para 102; New South Wales Law Reform Commission, Criminal Procedure: Unsworn Statements of Accused Persons (Report 45, 1985) at para 2.34.

3. Criminal Law Amendment Act 1882 (NSW) (46 Vic No 17) s 470. This was re-enacted in 1900 by s 405(1) of the Crimes Act 1900 (NSW).

4. Evidence in Summary Convictions Act 1882 (NSW) (46 Vic No 3) s 1.

5. Criminal Law and Evidence Amendment Act 1891 (NSW) (55 Vic No 5).

6. Criminal Law and Evidence Amendment Act 1891 (NSW) (55 Vic No 5) s 6.

7. 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 at 137.

8. R v Kops (1893) 14 LR (NSW) 150.

9. Accused Person’s Evidence Act 1898 (NSW) s 1; later replaced by s 407 of the Crimes Act 1900 (NSW).

10. (1907) 4 CLR 1282 at 1290.

11. Criminal Evidence Act 1898 (Imp) (61 & 62 Vict) s 1.

12. Criminal Evidence Act 1898 (Imp) (61 & 62 Vict) s 1(b). For a discussion of the type of judicial comment which occurred in practice, see S Nash at 146; contra Michael and Emmerson at 5-6.

13. Criminal Evidence Act 1898 (Imp) (61 & 62 Vict) s 1(h).

14. Criminal Procedure Act 1986 (NSW) s 95 (formerly Crimes Act 1900 (NSW) s 404A).

15. Evidence Act 1995 (NSW) s 20. See para 4.11-4.13.

16. Weissensteiner v The Queen (1993) 178 CLR 217; RPS v The Queen [2000] HCA 3. See para 4.14-4.17.

17. Evidence Act 1995 (NSW) s 17(2).

18. Evidence Act 1995 (NSW) s 12, 17, 20.

19. R v Milat (NSW, Supreme Court, No 70114/1994, Hunt CJ at CL, 22 April 1996, unreported).

20. Weissensteiner v The Queen (1993) 178 CLR 217 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, Gaudron and McHugh JJ dissenting. See also R v Buckland [1977] 2 NSWLR 452 (CCA); Browne v The Queen (1987) 30 A Crim R 278 (NSW CCA); R v Clough (1992) 28 NSWLR 396 (CCA). For commentary on Weissensteiner see A Mason, “Fair Trial” (1995) 19 Criminal Law Journal 7 at 10; E Stone, “Calling a Spade a Spade: The Embarrassing Truth About the Right to Silence” (1998) 22 Criminal Law Journal 17 at 21-24; Weinberg at para 49-63.

21. Weissensteiner v The Queen (1993) 178 CLR 217 per Mason CJ, Deane and Dawson JJ at 228-231. See also Palmer at 133-134 and 144-150.

22. Petty v The Queen (1991) 173 CLR 95.

23. At 228 per Mason CJ, Deane and Dawson JJ; at 231 per Brennan and Toohey JJ.

24. Weissensteiner v The Queen (1993) 178 CLR 217 at 227-229 per Mason CJ, Deane and Dawson JJ and at 235-236 per Brennan and Toohey JJ; R v OGD (1998) 45 NSWLR 744 at 753 per Gleeson CJ, with whom the other members of the Court agreed. See also Palmer at 133; Stone at 22. The minority judges in Weissensteiner v The Queen, Gaudron and McHugh JJ, held at 244-245 that adverse inferences could be drawn from a defendant’s failure to explain facts at the first reasonable opportunity. They held that this conduct can itself amount to evidence that the defendant is guilty. For discussion of the minority view see Palmer at 135-138 and Stone at 23-24.

25. S Odgers, Uniform Evidence Law (3rd ed, Law Book Company, Sydney, 1998) at para 20.8; Palmer at 134; T Smith, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 14.

26. RPS v The Queen [2000] HCA 3.

27. RPS v The Queen [2000] HCA 3 at para 27-34.

28. (1998) 45 NSWLR 744 (disapproved as to another matter in RPS v The Queen [2000] HCA 3 at para 30).

29. R v OGD (1998) 45 NSWLR 744 at 753 per Gleeson CJ, with whom the other members of the Court agreed.

30. R v OGD (1998) 45 NSWLR 744 at 754 per Gleeson CJ. 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 753 per Gleeson CJ. The significance of this matter was referred to in RPS v The Queen [2000] HCA 3 at para 34.

31. New South Wales Law Reform Commission, The Right to Silence and Pre-trial Disclosure in New South Wales (Research Report 10, 2000) at Table 4.1 and para 4.4-4.5.

32. Evidence Act 1995 (Cth) s 4, 17, 20.

33. Evidence Act 1929 (SA) s 18(1)I; Evidence Act 1910 (Tas) s 85(1)(a); Evidence Act 1906 (WA) s 8(1).

34. Evidence Act 1929 (SA) s 18(1)II; Evidence Act 1910 (Tas) s 85(1)(c); Evidence Act 1906 (WA) s 8(1)(c).

35. The leading case is Weissensteiner v The Queen (1993) 178 CLR 217. See para 4.14-4.16.

36. Evidence Act 1939 (NT) s 9; Crimes Act 1958 (Vic) s 399(1).

37. Evidence Act 1939 (NT) s 9(3); Crimes Act 1958 (Vic) s 399(3).

38. Weissensteiner v The Queen (1993) 178 CLR 217. See para 4.14-4.16.

39. Charter of Rights and Freedoms (Can) s 11(c). See also United States, Bill of Rights, Fifth Amendment; Constitution of India art 20(3); Constitution of Papua New Guinea art 37(1); Bill of Rights (NZ) s 23(4) and Crimes Act 1961 (NZ) s 366(1).

40. Charter of Rights and Freedoms (Can) s 7.

41. Charter of Rights and Freedoms (Can) s 11(d).

42. Canada Evidence Act s 4(6).

43. R v Noble [1997] 1 SCR 874 at 933 per Sopinka J, with whom L’Heureux-Dube, Cory, Iacobucci and Major JJ concurred. Contrast the dissenting judgment of Lamer CJ, with whom La Forest and Gonthier JJ concurred on the main issue, at 890. The minority reached the same position as the majority of the High Court in Weissensteiner. See also Stone at 34.

44. Criminal Procedure Code (Spore) s 196, inserted by the Criminal Procedure (Amendment) Act 1976 (Spore).

45. Criminal Evidence (Northern Ireland) Order 1988 (Eng) art 2, 4.

46. Murray v United Kingdom [1994] 1 WLR 1 (House of Lords); Murray v United Kingdom (1996) 22 EHRR 29.

47. R v Cowan [1995] 4 All ER 939 at 944.

48. 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; R v Napper (1997) 161 JP 16; and R v Gallen (Northern Ireland, November 1993, unreported) discussed in Justice at 35. See also S Nash and S Solley, “Limitations on the Right to Silence and Abuse of Process” (1997) 61 Journal of Criminal Law 95 at 97.

49. R v Cowan [1995] 4 All ER 939 at 944-945; Condron v The Queen [1997] 1 WLR 827. See also J Black, “Inferences From Silence: Redressing the Balance? (2)” [1997] Solicitors Journal 772 at 772.

50. R v Cowan [1995] 4 All ER 939 at 944-946.

51. Citing R v McClernon [1990] 10 NIJB 91 at 102, a Northern Ireland Case, where judges sit without juries in criminal trials.

52. Murray v United Kingdom (1996) 22 EHRR 29.

53. Murray v United Kingdom (1996) 22 EHRR 29 at 63.

54. M F Adams, visit to the United Kingdom (June 1998).

55. Australian Law Reform Commission, Evidence (Report 26 (Interim), 1985).

56. ALRC Report 26 (Interim) Draft Evidence Bill cl 17 (7). See also volume 1 at para 194-199, 258-260, 551-553, 555-558.

57. ALRC, Evidence (Report 38, 1987) Draft Evidence Bill 1987 cl 23. See also para 69-73.

58. See para 4.11.

59. NSWLRC Report 45 at para 4.68.

60. NSWLRC Report 45 at para 4.77.

61. New South Wales Law Reform Commission, Evidence (Report 56, 1988).

62. NSWLRC Report 56 Evidence Bill 1988 cl 23 and para 2.32.

63. Victoria, Scrutiny of Acts and Regulations Committee, Inquiry Into the Right to Silence (Final Report, 1999) Recommendation 4.

64. Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System (Final Report, 1999) Recommendation 255 and see para 24.23 and 24.24.

65. Justice Evidence Committee, The Accused as a Witness (London, 1968).

66. Justice Evidence Committee at 4-5.

67. Justice Evidence Committee at 4-5.

68. Justice Evidence Committee at 5.

69. Criminal Law Revision Committee, Evidence (General) (Report 11, London, 1972).

70. Criminal Law Revision Committee, Draft Criminal Evidence Bill cl 5. See also para 108-113.

71. Criminal Law Revision Committee at para 110.

72. Criminal Law Revision Committee, Draft Criminal Evidence Bill cl 5(2). See also para 112-113.

73. Greer at 715; Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at para 1.27 and 1.31.

74. Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981).

75. Royal Commission on Criminal Procedure at para 4.66. See also para 4.63-4.65.

76. Working Group on the Right to Silence, Report of the Working Group on the Right to Silence (London, 1989).

77. Working Group on the Right to Silence at para 114. See also para 113 and 115.

78. Working Group on the Right to Silence at para 116.

79. Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993).

80. Royal Commission on Criminal Justice at 56. See also 55 and 57.

81. Weissensteiner v The Queen (1993) CLR 217 at 237-238, per Brennan and Toohey JJ, approved by the majority in RPS v The Queen [2000] HCA 3 at para 35; RPS v The Queen [2000] HCA 3 at para 15. See para 4.14-4.17.

82. [1997] 2 All ER 1011.

83. [1995] 4 All ER 939 at 943-944.

84. Murray v United Kingdom [1994] 1 WLR 1 at 5.

85. See para 4.13-4.18, 4.62.

86. Criminal Justice and Public Order Act 1994 (Eng) s 35(4); cf R v Cowan [1995] 4 All ER 939 at 942.

87. C Corns, Submission at 3. See also Marks at 361, 372-373; Stone at 18-20; Williams at 632-636, 640-641, 652. Contra Palmer at 138.

88. T Cleary, Submission at 1; E Whitton, Submission at 5-6. See also G Davies, “Justice Reform: A Personal Perspective” [1996] New South Wales Bar Association News (Summer) 5 at 10-11; Justice Evidence Committee at 3-5; Criminal Law Revision Committee at para 14, 30-31; Alger at para 31.

89. See para 4.20.

90. NSWLRC RR 10 at Table 4.5 and para 4.19.

91. NSWLRC RR 10 at Table 4.5 and para 4.20-4.21.

92. See para 4.47 and 4.50.

93. RPS v The Queen [2000] HCA 3 at para 33-34 per Gaudron ACJ, Gummow, Kirby and Hayne JJ.

94. Police Association of NSW, Submission 2 at 4. See also T Smith, Submission to Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 1-2, 16; Victorian Bar, Submission to Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 60, 70; Weissensteiner v The Queen (1993) 178 CLR 217 at 224-225 per Mason CJ, Deane and Dawson JJ and at 234 per Brennan and Toohey JJ; Williams at 652; ALRC Report 26 (Interim) at para 258; Alger at para 29; J Black, “Inferences From Silence: Redressing the Balance? (1)” [1997] Solicitors Journal 741 at 743; D Heydon QC, “Silence as Evidence” (1974) 1 Monash University Law Review 53; Weinberg at para 56; Williams at 640; Royal Commission on Criminal Procedure at para 4.66; Victoria, Scrutiny of Acts and Regulations Committee at para 3.3. Smith J of the Supreme Court of Victoria, gives examples of trials where the jury has asked the judge whether any, and if so, what, significance they should attach to the fact that the defendant has not testified: T Smith, Submission to the Scrutiny of Acts and Regulations Committee, Victoria at 16.

95. D Harvey, “The Right to Silence and the Presumption of Innocence” [1995] New Zealand Law Journal 181 at 186.

96. Weissensteiner v The Queen (1993) 178 CLR 217 at 237-238, per Brennan and Toohey JJ, approved by the majority in RPS v The Queen [2000] HCA 3 at para 15, 35.

97. This view has also been expressed by I Dennis, “The Criminal Justice and Public Order Act – The Evidence Provisions” [1995] Criminal Law Review 4 at 18; Palmer at 142-143; Royal Commission on Criminal Procedure at para 4.64; Stone at 22-23; M Aronson, “Complex Criminal Trials: The AIJA Report” (1992)

66 Australian Law Journal 825 at 827-828.

98. Ethnic Affairs Commission, Submission 1 at 1; Submission 2 at 2; D Guilfoyle, Submission at 10. See also Justice at 21; G Nash, “The Right to Silence” (1994) 91 Victorian Bar News 62 at 62; Palmer at 141; Stone at 22, Williams at 636 and 637-638; T Smith, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 2; Victorian Bar, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 14, 15, 58, 62; Law Institute of Victoria, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 2.1.2; Criminal Bar Association, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 6.11.

99. National Childrens and Youth Law Centre, Submission at 2; Youth Justice Coalition, Submission at 6. See also Marsdens, Submission 2 at 5; NSW Young Lawyers, Submission at 6. See also Victorian Bar, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 58. Compare R v Friend, discussed at para 4.48. See S Sharpe, “Vulnerable Defendants and Inferences from Silence” (1997) 147 New Law Journal 842 at 842-843.

100. NSWLRC RR 10 at para 4.23.

101. NSWLRC RR 10 at para 4.25.

102. This view was also expressed by the Criminal Bar Association, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 6.11.

103. NSWLRC RR 10 at para 4.24.

104. See also T Smith, Submission to Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 2; Law Institute of Victoria, Submission to Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 2.1.2. See also S Nash at 146; Williams at 637. 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 failure to give evidence: R v Cowan [1995] 4 All ER 939 at 944. However, note that the Evidence Act 1995 (NSW) s 103, 104 provide considerable protection to the defendant from cross-examination on any negative aspect of character or misconduct on the basis that it is relevant to credibility.

105. NSWLRC RR 10 at para 4.27.

106. See R v Barkley (Northern Ireland, November 1992) discussed in Nash and Solley at 96; R Pattendon, “Inferences From Silence” [1995] Criminal Law Review 602 at 607; J Jackson, “Interpreting the Silence Provisions: The Northern Ireland Cases” [1995] Criminal Law Review 587 at 601; Greer at 710 and 727; Justice at 21; S Nash at 146; Williams at 637-638; Royal Commission on Criminal Justice at 56; Victorian Bar, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 58; Law Institute of Victoria, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 2.1.2; Criminal Bar Association, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 6.11; NSWLRC RR 10 at para 4.28.

107. See also D Birch, “Commentary on Napper” [1996] Criminal Law Review 591 at 593.

108. The right to give unsworn evidence was abolished in NSW by s 404A of the Crimes Act 1900 (NSW), inserted by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW) s 3 and Sch 1. This applied to any person charged with an offence on or after 10 June 1994: s 13.

109. T Smith, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 2, 13-14; Marsdens, Submission 1 at 4; Victoria Legal Aid, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 5; Law Institute of Victoria, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 2.2.4; Stone at 22. See also Palmer at 141. The Commission’s empirical research suggested that defendants who had the option of giving unsworn evidence were less likely to remain silent at trial than defendants generally. However, this conclusion could only tentatively be reached due to the small number of cases within the survey period where the option of giving unsworn evidence was available to the defendant: NSWLRC RR 10 at para 4.6-4.9.

110. Palmer at 141 and 143. See also T Smith, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 2-3.

111. (1993) 178 CLR 217. See para 4.14-4.16.

112. R v Mora (Vic, Court of Appeal, No 0189/95, 30 May 1996, unreported) at 2-4. See also Victorian Bar, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 67.

113. NSWLRC Report 45 at para 4.16.

114. 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.

115. Ethnic Affairs Commission, Submission 2 at 2; J Fleming, Submission at 4; J Gallagher, Submission at 3, 5 and 6; D Guilfoyle, Submission at 2; Marsdens, Submission at 5; National Childrens and Youth Law Centre, Submission at 2; NSW Young Lawyers, Submission at 6; J Gallagher, Submission at 3 and 5-6; L Davies, Submission at 6. See also Kanaveilomani v The Queen [1995] 2 Qd R 642 at 509; N Blake, “The Case for Retention” in S Greer and R Morgan (eds), The Right to Silence Debate (Bristol and Bath Centre for Criminal Justice, 1990) 18 at 20; “The Right to Silence” (1998) 176 Civil Liberty 18; J Jackson, “The Right of Silence: Judicial Responses to Parliamentary Encroachment” (1994) 57 Modern Law Review 270 at 273 and 277; Jackson (1995) at 600; Greer at 725; Justice at 5, 6, 19-22; G Nash at 62; S Nash at 148, 151; Pattendon at 611; G Singh, “Right to Silence” (1997) 45 On the Record 2; Royal Commission on Criminal Procedure at para 4.35, 4.64 and 4.66; ALRC Report 38 at para 74; T Smith, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 14; Criminal Bar Association of Victoria, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 6.4.

116. (1993) 178 CLR 217. See para 4.14-4.16.

117. D Guilfoyle, Submission at 57. See also Victorian Bar, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 13, 15, 65, 66; Victoria Legal Aid, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 5; Law Institute of Victoria, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 2.2.1.

118. T Cleary, Submission at 2. See also Davies at 10; Dennis at 10, 18; Stone at 18-20; Weinberg at para 11; Williams at 637.

119. [2000] HCA 3. See para 4.17.

120. Intellectual Disability Rights Service, Submission at 2-3; B Kennedy, Submission at 1; Justice Action, Submission at 1; NSW Council for Civil Liberties, Submission at 1-2; NSW Young Lawyers, Submission at 7; UTS Community Law and Legal Research Centre, Submission at 1 and 2. See also D Guilfoyle, Submission at 1-2; Law Society of NSW, Submission 2 at 5; Youth Justice Coalition, Submission at 1. See also “The Right to Silence” (1998) 176 Civil Liberty 18; Criminal Bar Association, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 6.6 and 6.7; Michael and Emmerson at 10-19; S Nash at 149-150.

121. It has been argued that it cannot be automatically assumed that this decision guarantees the validity of the equivalent English provision: R Munday, “Inferences from Silence and European Human Rights Law” [1996] Criminal Law Review 370 at 383. See also Black at 742; S Nash at 149-150; Singh at 2. Compare O’Gorman at 8. The unsuccessful challenge to the Northern Ireland provision was based on the application of the fair trial guarantee under the European Convention, which does not apply in New South Wales. Australia is, however, a signatory to the International Covenant on Civil and Political Rights and the United Nations Convention on the Rights of the Child. These conventions also protect the right not to be compelled to testify against oneself at trial: International Covenant on Civil and Political Rights art 14(3)(g) and United Nations Convention on the Rights of the Child art 40(2)(b)(iv). See also the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia r 42(a).

122. A Arafas, Submission at 3; B Bright, Submission at 2; P Cloran, Submission at 1; Ethnic Affairs Commission, Submission 2 at 2; J Fleming, Submission at 4; J Gallagher, Submission at 3-6; B Hocking and L Manville, Submission at 20; Justice Action, Submission at 2; Law Society of NSW, Submission 2 at 5; Marsdens, Submission 1 at 3; Submission 2 at 5; Mt Druitt Community Legal Centre, Submission at 1; National Childrens and Youth Law Centre, Submission at 2; Youth Justice Coalition, Submission at 6; NSW Bar Association, Submission at para 4; G Turnbull, Submission at 1-4; NSW Young Lawyers, Submission at 6; Law Society of the ACT, Submission at para 3.6; T Smith, Submission to the Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 2, 4.

123. NSW Council for Civil Liberties, Submission at 3-4; UTS Community Law and Legal Research Centre, Submission at 4; D Guilfoyle, Submission at 12.

124. E Whitton, Submission at 5-6.

125. Police Association of NSW, Submission 1 (Response 4) at 6.

126. See para 4.36.

127. See para 4.11-4.12.

128. A Clarke, Submission at 2; T Cleary, Submission at 1; L Davies, Submission at 6-7; R Miller, Submission at 3; Police Association of NSW, Submission 2 at 4; S Shillington, Submission at 1; M Tedeschi, Submission at 2.

129. New South Wales Law Reform Commission, The Right to Silence (Discussion Paper 41, 1998) at para 5.41.

130. M Tedeschi QC, Submission at 2. T Cleary, Submission at 1; R Miller, Submission at 3; DS Shillington, Submission at 1; M Tedeschi QC, Submission at 2. See also Justice Evidence Committee at 4-5. See also Criminal Law Revision Committee at para 110; Working Group on the Right to Silence at para 114.