THE LAW IN NEW SOUTH WALES
4.1 In New South Wales, accused persons can give evidence at their hearing or trial, but can not be compelled to do so.1 The court can draw unfavourable inferences where the accused does not testify and, in jury trials, the judge, defence counsel and counsel for any co-accused can comment on the accused’s silence. There are statutory and common law restrictions on the nature of comment which the judge can make. Prosecution comment is prohibited.2
JURISDICTIONS WHICH HAVE MODIFIED THE RIGHT TO SILENCE
4.2 The right to remain silent at trial is recognised in all common law countries. However, the law on adverse inferences and comment where the accused does not give evidence varies considerably, both within Australia and overseas. Victoria and the Northern Territory prohibit judicial and prosecution comment.3 In South Australia, Western Australia and Tasmania, only prosecution comment is prohibited.4 In these jurisdictions, judicial comment is regulated by the common law. The law in Queensland is regulated exclusively by the common law.
4.3 In Singapore, Northern Ireland, England and Wales, the court or jury can draw very strong inferences where the accused does not give evidence, including inferences of guilt which, combined with an independent prima facie case, can be sufficient to meet the burden of proof.5 The judge and the prosecution can comment to the jury on the adverse inferences which can be drawn.
THE COMMISSION’S FINDINGS
Incidence of silence at trial
4.4 The Commission asked judges and magistrates how often, in hearings and trials they presided over, the accused exercised the right to remain silent at his or her hearing or trial. Prosecutors and defence lawyers were asked this question in relation to hearings and trials they conducted. Responses to this question are set out in Table 4.1.
Table 4.1: How often accused persons remained silent at hearing or trial
[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]
4.5 Overall, the most common response was that accused persons almost never remained silent at their hearing or trial. Most defence lawyers responded that this never happened. Most magistrates and prosecutors responded that accused persons almost never remained silent at the hearing or trial. For judges, the most common response was that they sometimes remained silent.
Unsworn statements and silence
4.6 Until 1994, accused persons charged with indictable offences in New South Wales who were tried in the District and Supreme Courts had the option of giving unsworn evidence at their trial.6 While the removal of the right to give unsworn evidence applied to any person charged on or after 10 June 1994,7 the right to give unsworn evidence continues to apply in a small number of trials where the accused was charged before this date. Many submissions and several commentators have argued that removal of the right to give unsworn evidence has increased the importance of the right not to testify.8
4.7 The Commission asked judges, Crown prosecutors and defence lawyers how often, in trials they presided over or conducted, the accused had the option of giving unsworn evidence.9 The majority responded that the accused never or almost never had this option.
4.8 Judges, Crown prosecutors and defence lawyers were also asked how often, in trials they presided over or conducted, where the option of giving unsworn evidence was available to the accused, he or she remained silent. Overall, the most common response was that where the accused person had the option of giving unsworn evidence, he or she never exercised the right to silence. This response was consistent across all categories.
4.9 This finding suggests that accused persons who had the option of giving unsworn evidence were less likely to remain silent at the hearing or trial than accused persons in general. However, this conclusion can only be tentatively drawn, due to the small number of participants in the survey who presided over or conducted trials where the option of unsworn evidence was available to the accused.
Legal representation and advice
4.10 Judges, magistrates and prosecutors were asked how often, in pleas, hearings and trials they presided over or conducted, the accused person was represented at the hearing or trial.10 Responses to this question are set out at Table 4.2.
Table 4.2: How often accused were persons legally represented at pleas, hearings and trials
[all prosecutors (78), judges (29) and magistrates (33) answered this question]
4.11 The most common response was that accused persons were often or almost always legally represented at their plea, hearing or trial. Most judges responded that the accused was almost always or always legally represented (45% and 41% respectively). Most magistrates (49%) and prosecutors (35%) responded that the accused was often represented. It is likely that this difference between judges on the one hand and magistrates and prosecutors on the other hand reflects the higher number of unrepresented accused persons in the Local Courts.
4.12 Judges, prosecutors and magistrates were also asked whether, in hearings and trials they presided over or conducted where the accused did not testify, he or she was generally legally represented at this stage.11 Their responses are set out in Table 4.3.
Table 4.3: How often accused persons who remained silent at the hearing or trial were legally represented at this stage
[72 of 78 prosecutors, 22 of 29 judges and 31 of 33 magistrates answered this question]
4.13 Overall, most judges, magistrates and prosecutors responded that accused persons who remained silent at their hearing or trial almost always or always had legal representation. Most judges and prosecutors responded that accused persons who did not give evidence always had legal advice, while most magistrates (30%) responded that the accused almost always had legal advice.
4.14 These findings indicate that accused persons who did not give evidence at their hearing or trial were likely to be legally represented at this stage. The findings also suggest that accused persons who remained silent at their hearing or trial were more likely to be legally represented than accused persons in general.
4.15 Defence lawyers who represented clients who did not give evidence at their hearing or trial were asked how often they advised their clients against testifying.12 Their responses are set out in Table 4.4.
Table 4.4: How often accused persons who remained silent at trial were advised to do so
[129 of 190 defence respondents answered this question]
4.16 Most defence lawyers responded that they always or almost always advised clients who remained silent at the hearing or trial to do so. 16% of defence lawyers answered that they sometimes advised clients who remain silent against testifying and a further 11% answered that they almost never advised this.
Effect of silence on outcomes of hearings and trials
4.17 A common argument for modifying the right to silence at the hearing or trial is that the right not to give evidence contributes to the acquittal of offenders.13 It is also frequently argued that, unless guided by judicial direction, juries will place too much weight on the fact that the accused did not give evidence.14
4.18 The survey asked judges how the fact that the accused remained silent at the hearing or trial contributed to the outcome of trials they presided over.15 Crown prosecutors, barristers briefed by the New South Wales and Commonwealth Offices of the Director of Public Prosecutions and defence lawyers were asked how the accused’s silence contributed to the outcome of jury trials they conducted.16 Their responses to this question depended on their impressions of the significance juries attributed to the accused’s silence, since juries in New South Wales do not give reasons for their decisions. Responses to this question are set out in Table 4.5.
Table 4.5: Effect of accused’s silence on hearing and trial outcomes
[172 of 190 defence, 13 of 20* prosecutors and 21 of 29 judges answered this question]
* This figure includes all Crown prosecutors and barristers briefed by the Commonwealth and NSW Office of the Director of Public Prosecutions, but excludes police prosecutors.
4.19 Most respondents responded that they were unable to say how the accused’s silence contributed to the outcome of the hearing or trial, reflecting a reluctance to speculate on the significance which juries attributed to the silence of the accused. The Commission has previously noted that it is not possible to assess the validity of the argument that juries tend to misuse the fact that the accused did not give evidence except by speculation, since New South Wales juries do not give reasons for their decisions.17
4.20 Overall, the most common response by participants who were able to answer this question was that where the accused did not testify, this sometimes contributed to an acquittal, and sometimes contributed to a conviction. Most judges responded either that the accused’s silence did not affect the outcome of the trial or that it generally contributed to a conviction (19% each). Only 10% of judges reported that silence generally contributed to acquittals.
4.21 Most Crown prosecutors and barristers briefed by the New South Wales and Commonwealth Offices of the Director of Public Prosecutions (39%) responded that silence generally contributed to acquittals. 23% of this group responded that silence sometimes contributed to the acquittal of the accused and sometimes to a conviction. The most common response for defence lawyers was that the accused’s silence sometimes contributed to an acquittal and sometimes contributed to a conviction (30%). 21% of defence lawyers responded that the accused’s silence generally contributed to an acquittal.
Reasons for advice to remain silent
4.22 A number of submissions received by the Commission, and numerous commentators, have challenged the assumption that an accused person who was innocent would always give evidence. It is argued that there are many reasons why an innocent accused person would remain silent at his or her hearing or trial.18
4.23 The Commission asked defence lawyers who advised clients to remain silent at their hearing or trial their reasons for giving this advice.19 The most frequent reason given for this advice was the lawyer’s concern that the accused, for reasons not related to guilt or innocence, would perform poorly as a witness. This arose due to communication factors. It also arose due to the client’s personal characteristics, for example where the client had a mental illness or an intellectual disability, or, while innocent, was likely to present as hostile, evasive or confused.
4.24 The next most frequently cited reason for this advice was the lawyer’s assessment that the prosecution case was very weak, rendering it unnecessary for the accused to give evidence.
4.25 The next most common reason was that the lawyer was concerned to protect the client from the harmful effect of giving evidence, particularly cross-examination. Following this, the next most frequent reason was that the accused had previously answered police questions, either during police questioning or in a written statement.
4.26 A number of defence lawyers reported that they advised clients to remain silent because courts tended to view minor inconsistencies between the accused’s responses to police questions and evidence in court as evidence that the accused was lying.20
4.27 A number of defence lawyers also reported that they advised clients against testifying where the client indicated that giving evidence would entail incriminating another person, which the client wished to avoid. Others gave this advice to avoid exposing their client to cross-examination as to their criminal record or outstanding charges.21
4.28 A small number of defence lawyers reported that they occasionally advised a client to remain silent where the person feared that their safety, or the safety of their family, friends or associates, would be endangered if they gave evidence. A very small number of defence lawyers responded that they advised clients to remain silent because their evidence would assist the prosecution case or because the client was guilty.
FOOTNOTES
1. Evidence Act 1995 (NSW) s 12, 17, 20.
2. Evidence Act 1995 (NSW) s 20(2); Weissensteiner v The Queen (1993) 178 CLR 217 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, Gaudron and McHugh JJ dissenting.
3. Evidence Act 1939 (NT) s 9(3); Crimes Act 1958 (Vic) s 399(3).
4. Evidence Act 1929 (SA) s 18(1)II; Evidence Act 1906 (WA) s 8(1)(c); Evidence Act 1910 (Tas) s 85(1)(c).
5. Criminal Evidence Act (Northern Ireland) 1923 (Eng) s 1; Criminal Evidence (Northern Ireland) Order 1988 (Eng) Art 4; Murray v United Kingdom (1996) 22 EHRR 29; Criminal Evidence Act 1898 (Imp) (61 & 62 Vic) s 1; Criminal Justice and Public Order Act 1994 (Eng) s 35; Criminal Procedure Code (Singapore) s 189, 196.
6. The right to give unsworn evidence was abolished by s 404A of the Crimes Act 1900 (NSW), since replaced by the Criminal Procedure Act 1986 (NSW) s 95.
7. Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW) s 2, Sch 1(5); New South Wales, Government Gazette No 78 of 10 June 1994 at 2756.
8. Marsdens, Submission 1 at 4. See also 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 141 and 143; E Stone, “Calling a Spade a Spade: The Embarrassing Truth About the Right to Silence” (1998) 22 Criminal Law Journal 17 at 22; R v Mora (Vic, Court of Appeal, No 0189/95, 30 May 1996, unreported) at 2-4; Law Institute of Victoria, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 2.2.4; T Smith, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 2-3, 13-14; Victorian Bar, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 67; Victoria Legal Aid, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 5.
9. Magistrates and police prosecutors were not surveyed on this issue as the option of giving unsworn evidence did not extend to the Local Courts.
10. Defence lawyers were not asked this question as it is implicit that where defence lawyers provided information about hearings or trials they conducted, the accused was legally represented.
11. Defence lawyers were not asked this question as it is implicit that where defence lawyers provided information about accused persons who did not give evidence at hearings and trials they conducted, the accused was legally represented.
12. Other participants were not asked this question as they would be unlikely to have information about legal advice to accused persons.
13. T Cleary, Submission at 1; E Whitton, Submission at 5-6. See also G Davies, “Justice Reform: A Personal Perspective” [1996] Bar News (Summer) 5 at 10-11; England, Justice Evidence Committee, The Accused as a Witness (HMSO, 1968) at 3-5; I Alger, “From Star Chamber to Petty and Maiden: Police Attitudes to the Right to Silence”, paper presented at session 24 of the 30th Australian Legal Conference (Melbourne, 18-21 September 1997) at para 31; E Whitton, The Cartel (Herwick Pty Ltd, Sydney, 1998) chapters 18 and 19.
14. Police Association of New South Wales, Submission 2 at 4. See also 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; Australian Law Reform Commission, Evidence (Report 26, (Interim) 1985) at Volume 1 para 258; Alger at para 29; J Black, “Inferences From Silence: Redressing the Balance? (1)” [1997] Solicitors Journal 741 at 743; 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 para 56; C R Williams, “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 Law Quarterly Review 629 at 640 and 652; Victorian Bar Submission to Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 60, 70. 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 Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 1-2, 16.
15. Magistrates were not asked this question as they do not preside over jury trials.
16. Police prosecutors were not surveyed about this issue as they do not conduct jury trials.
17. New South Wales Law Reform Commission, The Right to Silence (Discussion Paper 41, 1998) at para 5.26.
18. Ethnic Affairs Commission, Submission 1 at 1; Submission 2 at 2; D Guilfoyle, Submission at 10; Marsdens, Submission 2 at 5; National Childrens and Youth Law Centre, Submission at 2; NSW Young Lawyers, Submission at 6; Youth Justice Coalition, Submission at 6. See also Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 56; R v Friend (1997) 2 All ER 1011; D Birch, “Commentary on Napper” [1996] Criminal Law Review 591 at 593; S Greer, “The Right to Silence: A Review of the Current Debate” (1990) 53 Modern Law Review 709 at 710 and 727; J Jackson, “Interpreting the Silence Provisions: The Northern Ireland Cases” [1995] Criminal Law Review 587 at 601; Justice at 21; G Nash, “The Right to Silence” (1994) 91 Victorian Bar News 62; Palmer at 141; S Nash, “Silence as Evidence: A Commonsense Development or a Violation of a Basic Right?” (1997) 21 Criminal Law Journal 145 at 146; 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; S Sharpe, “Vulnerable Defendants and Inferences From Silence” (1997) 147 New Law Journal 842 at 842-843; Stone at 22, C R Williams at 636 and 637-638; Criminal Bar Association, Submission to Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 6.11; Law Institute of Victoria, Submission to Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 2.1.2; T Smith, Submission to Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 2; Victorian Bar, Submission to Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 14, 15, 58, 62.
19. Other participants were not asked this question as they would be unlikely to have information about the reasons for advising accused persons against giving evidence.
20. See also para 2.44.
21. Note that the Evidence Act 1995 (NSW) s 103 and 14 restrict the circumstances in which accused persons can be cross-examined on any negative aspect of character or misconduct on the basis that it is relevant to credibility.
