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4.16 - Silence in Response to People in Authority

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Change and Continuity

The common law prohibition on drawing adverse inferences against the accused by reason of his or her failure to answer questions asked by a person in authority has been largely reflected in Evidence Act 2008 s89.

The common law prohibition has not been abrogated and continues to apply.

Both s89 and the common law prohibit inferences of consciousness of guilt and inferences relevant to the accused’s credibility being drawn from pre-trial silence. They also both prohibit adverse inferences being drawn from selective silence.

Adverse inferences also cannot be drawn from the failure to raise a defence at an earlier time. However, there may be other consequences if the accused fails to comply with the pre-trial disclosure requirements contained in the Criminal Procedure Act 2009.

The common law obligations about when to direct the jury about the accused’s pre-trial silence, and the content of the direction, remain in place.

 

Scope

  1. This topic addresses the directions which may be required when, prior to trial, a person exercises the right to remain silent when questioned or asked to supply information by a person in authority.
  2. Similar issues are addressed in the following topics:

    Right to Remain Silent When Questioned by Authorities

  3. The right to remain silent when questioned or asked to supply information by a person in authority is a fundamental rule of the common law (Petty v R (1991) 173 CLR 95).
  4. This aspect of the right of silence is designed to prevent oppression by the police or other authorities of the State (Petty v R (1991) 173 CLR 95 per Brennan J; Harman v The State of Western Australia (2004) 29 WAR 380; [2004] WASCA 230).

    No Adverse Inference May be Drawn

  5. At common law it has been held that one consequence of this right is that no adverse inference can be drawn against the accused by reason of his or her failure to answer questions asked by a person in authority, or to supply information to such a person. To draw such an inference would be to erode the right or to render it valueless (Petty v R (1991) 173 CLR 95. See also Woon v R (1964) 109 CLR 529; R v McNamara [1987] VR 855).
  6. This aspect of the right of silence has been given legislative form by Evidence Act 2008 s89 (R v Tang (2000) 113 A Crim R 393). However, the common law continues to apply (R v Anderson [2002] NSWCCA 141; R v Stavrinos (2003) 140 A Crim R 594).
  7. Although there are some minor differences in scope and content, s89 and the common law largely overlap (R v Coe [2002] NSWCCA 385; R v Matthews NSW CCA 28/5/96).
  8. The right to silence has been restricted in some ways by the Criminal Procedure Act 2009. See “Pre-Trial Disclosure Requirements” below for further information.

    Scope of the Prohibition Against Adverse Inferences

  9. The statutory prohibition on drawing adverse inferences from a person’s pre-trial silence applies to criminal proceedings in which:
  10. By comparison, the equivalent common law prohibition applies whenever a person is suspected, or believes on reasonable grounds that he or she is suspected, of having been a party to an offence (Petty v R (1991) 173 CLR 95).
  11. As s89 prohibits unfavourable inferences being drawn against a party where any person fails or refuses to answer a question asked by a relevant party, in some circumstances it can prevent an adverse inference from being drawn against a witness other than the accused (e.g., a defence witness who gave a statement to the police, but failed to mention something later raised in court) (see, e.g., Jones v R [2005] NSWCCA 443).
  12. As there is significant overlap between the scope of s89 and the common law, in most cases where a person exercises his or her pre-trial right of silence, adverse inferences will be prohibited on both grounds.

    Content of the Prohibition Against Adverse Inferences

  13. There are two main consequences of the pre-trial right to silence:
    1. Adverse inferences may not be drawn from the failure to answer questions asked by people in authority; and
    2. Adverse inferences may not be drawn from previous silence about a defence raised at trial (Petty v R (1991) 173 CLR 95).

    Failure to Answer Questions

  14. Evidence Act 2008 s89(1) provides that no unfavourable inferences can be drawn against a party from a person’s failure or refusal to answer questions put by an investigating official, or to respond to the official’s representations.
  15. Section 89 prohibits all unfavourable inferences, including inferences of consciousness of guilt and inferences relevant to a party’s credibility (Evidence Act 2008 s89(4)). This reflects the common law (see, e.g., Petty v R (1991) 173 CLR 95).

    Failure to Raise a Defence

  16. Previous silence about a defence raised at the trial cannot provide a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable (Petty v R (1991) 173 CLR 95; R v Stavrinos (2003) 140 A Crim R 594; Sanchez v R [2009] NSWCCA 171).[2]
  17. This stems from the rule that it is never for an accused person to prove his or her innocence. To allow that an explanation might be judged false because it was not put forward before trial is, in effect, to allow the burden of proving guilt to be more readily discharged because the accused did not signal the precise basis of his or her innocence (Petty v R (1991) 173 CLR 95).[3]
  18. The prohibition against drawing an inference of recent invention applies even if:

    Previous Inconsistent Accounts

  19. While Evidence Act 2008 s89 and the common law both prohibit adverse inferences being drawn from silence, they do not prevent adverse inferences being drawn in cases where the accused has previously told a contrary story. The jury is entitled to draw whatever inferences are reasonably open from the responses actually made by the accused (Petty v R (1991) 173 CLR 95; R v Gonzales-Betes [2001] NSWCCA 226; Sanchez v R [2009] NSWCCA 171).
  20. Thus, where the accused chooses to break his or her silence and give an explanation before trial that is inconsistent with the account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused’s credit and as demonstrating a consciousness of guilt (Jones v R [2005] NSWCCA 443; Van der Vegt v R [2016] NSWCCA 279 at [13], [40]-[41]).
  21. Similarly, where the accused gives an account which is inconsistent with the case presented at trial, and fails to withdraw that account until the time of trial, evidence of the accused’s failure to withdraw the account is relevant and admissible. It can constitute a denial by conduct of the defence raised at trial (Petty v R (1991) 173 CLR 95). See also Previous Representations (Hearsay, Recent Complaint and Prior Statements).

    Selective Silence

  22. No adverse inference can be drawn from the fact that the accused answered some questions but did not answer others (R v McNamara [1987] VR 855; R v Towers NSW CCA 7/6/93; Yisrael v District Court of New South Wales (1996) 87 A Crim R 63; R v Barrett (2007) 16 VR 240. See also Evidence Act 2008 s89(1)(a)).
  23. By answering some questions, the accused does not waive his or her right of silence. He or she does not assume any obligation to provide information to the police (R v Stavrinos (2003) 140 A Crim R 594).
  24. The accused’s selectiveness in answering questions therefore cannot demonstrate a consciousness of guilt (R v McNamara [1987] VR 855; R v Towers NSW CCA 7/6/93; Yisrael v District Court of New South Wales (1996) 87 A Crim R 63; R v Barrett (2007) 16 VR 240).
  25. However, the answers the accused gives may be used, and can be considered as a whole, in the context of his or her refusal to answer other questions (Woon v R (1964) 109 CLR 529; Yisrael v District Court of New South Wales (1996) 87 A Crim R 63; R v Towers NSW CCA 7/6/93).
  26. The jury can draw adverse inferences from the answers that were given, but cannot draw any inferences from the questions that were not answered (R v Barrett (2007) 16 VR 240).
  27. As the accused is under no obligation to give notice of his or her defence prior to trial, a failure to proffer an explanation cannot be relied upon as a basis for an inference of guilt or as adversely affecting the credibility of a defence (R v Makin (1995) 120 FLR 9).
  28. However, where the accused gives a detailed account of events to the police, the jury may be able to infer a consciousness of guilt from the conscious omission of certain details (R v Cuenco (2007) 16 VR 118; R v Russo (2004) 11 VR 1; De Marco 26/6/1997 CA Vic).[4] See Incriminating Conduct (Post Offence Lies and Conduct) for further information.

    Pre-Trial Disclosure Requirements

  29. In Victoria, some limitations have been placed on the right of silence by the pre-trial disclosure requirements of Part 5.5 of the Criminal Procedure Act 2009. For example:
  30. If the accused fails to comply with the pre-trial disclosure requirements contained in the Criminal Procedure Act 2009:
    1. He or she may be prevented from giving or calling certain evidence (see, e.g., ss190, 233);
    2. His or her response to the prosecution’s opening address may be restricted (s225(2)); or
    3. The judge or a party may comment on the breach (s237).[5]
  31. Any comment made by the judge must be relevant, permitted by another Act or a rule of law and must not be unfairly prejudicial (Criminal Procedure Act 2009 s237).

    When Can Evidence of Silence Be Admitted?

  32. Evidence that a person failed to respond to a person in authority, or failed to raise some defence or matter of explanation, will generally be inadmissible. Such evidence is usually not probative of any relevant fact or circumstance (in light of the fact that the accused has a right to remain silent, and no adverse inferences can be drawn from his or her exercise of that right) (Petty v R (1991) 173 CLR 95; Bruce v R (1987) 74 ALR 219; R v Ireland (1970) 126 CLR 321; R v McNamara [1987] VR 855. See also Evidence Act 2008 ss56, 89(2)).
  33. However, evidence that the accused exercised the right of silence can be admitted if there is a legitimate purpose for admitting the evidence (R v Reeves (1992) 29 NSWLR 109; R v Astill NSW CCA 8/7/92; R v Coyne [1996] 1 Qd R 512).
  34. For example, evidence that the police put the prosecution’s version of the facts to the accused, and gave him or her the opportunity to answer them, may be admitted to meet an anticipated criticism of the fairness of the investigating police officers’ conduct (R v Reeves (1992) 29 NSWLR 109; R v Hartwick Vic CCA 20/12/95; Wilson v County Court of Victoria (2006) 14 VR 461).
  35. In such circumstances, the accused’s silence can only be used to counter the allegation of inadequate investigation. It cannot be used to demonstrate a consciousness of guilt or as the basis of a claim of recent invention (Wilson v County Court of Victoria (2006) 14 VR 461).
  36. Evidence of the accused’s pre-trial silence may also be admitted where the failure or refusal to answer a question is a fact in issue in the proceeding (e.g., where it is a criminal offence for the accused to refuse to respond to a question by an investigating official) (Evidence Act 2008 s89(3)).
  37. Where the accused answers some questions but not others, it may be necessary to admit the whole record of interview to prevent a distorted or unreal version of the interrogation being placed before the jury (R v McNamara [1987] VR 855; Brain v R [2010] VSCA 172. See also R v Astill NSW CCA 8/7/92; R v Towers NSW CCA 7/6/93).
  38. Evidence of the accused’s pre-trial silence should not be admitted solely to prevent the jury from speculating about whether the accused had given any account of his or her actions when first challenged by the police (R v Hartwick Vic CCA 20/12/95. But see R v Familic (1994) 75 A Crim R 229; DPP v Butay [2001] VSC 346; R v Ivanovic [2003] VSC 403).
  39. Even if evidence that the accused exercised his or her right of silence is admissible, it may be appropriate to exclude it under Evidence Act 2008 ss135 or 137 (see, e.g., R v Astill NSW CCA 8/7/92).

    When to Direct the Jury About Pre-Trial Silence

  40. As Evidence Act 2008 s89 does not address the issue of when a jury should be directed about pre-trial silence, Part 3 of the Jury Directions Act 2015 applies (see Jury Directions Act 2015 s10).
  41. The need for a direction depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  42. At common law, whenever evidence was given which disclosed that the accused had exercised his or her pre-trial right of silence, the judge was required to direct the jury about the issue. If a direction was not given, the jury might mistakenly use that fact to the accused’s detriment (King v R (1986) 15 FCR 427. See also R v Reeves (1992) 29 NSWLR 109; R v Astill NSW CCA 8/7/92; R v Familic (1994) 75 A Crim R 229; R v Matthews NSW CCA 28/5/96).
  43. A direction on pre-trial silence was considered necessary even if it was not sought by counsel (R v Booty NSWCCA 19/12/94).
  44. Under the Jury Directions Act 2015, the judge should consider the significance of the evidence of silence in the context of the trial when deciding whether to give the direction despite the absence of a request.
  45. The direction should be given when the relevant evidence is first adduced (R v Reeves (1992) 29 NSWLR 109; R v Matthews NSW CCA 28/5/96; Sanchez v R [2009] NSWCCA 171).
  46. While there is no rule to the effect that the direction must be repeated in the summing up, it will often be desirable and prudent to do so (Sanchez v R [2009] NSWCCA 171).
  47. It is not sufficient to rely on counsel having addressed the issue. The right of silence is fundamental, and requires a direction that is given with judicial authority (R v Matthews NSW CCA 28/5/96).

    Content of the Direction

  48. When directing the jury on the accused’s exercise of the right of silence, the judge must:

    Warn the Jury Against Impermissible Use of the Evidence

  49. A direction about impermissible uses of evidence of pre-trial silence must tell the jury:
  50. No particular form of words is required when directing the jury about this issue. The judge is required to do no more than direct the jury as to the nature of the right and that no inference adverse to the accused can be drawn (R v Hodge [2002] NSWCCA 10).
  51. It will usually be appropriate to also remind the jury that the accused was specifically cautioned by the police that he or she was not obliged to answer any questions, so as to avoid any suggestion of a familiarity by the accused with criminal investigation procedures (R v Reeves (1992) 29 NSWLR 109).[6]
  52. Where the accused’s account of events has been presented for the first time at trial, the judge must make it clear that no suggestion can be made that that account is an invention because it had not been presented earlier (R v Anderson [2002] NSWCCA 141).
  53. If the accused’s selective silence is revealed to the court, the jury must be directed not to draw an adverse inference from that fact (King v R (1986) 15 FCR 427).

    Direct the Jury About Permissible Uses of the Evidence

  54. Where evidence of the accused’s pre-trial silence is admitted for a legitimate purpose (see “When Can Evidence of Silence Be Admitted?” above), the judge’s directions on pre-trial silence should:

    Contested Silence

  55. In some cases it will be unclear whether a person responded to official questioning or remained silent. For example:
  56. If such evidence is admitted, the directions should:

    Correcting a Prosecution Breach of the Prohibition

  57. The prosecution must not suggest that an adverse inference can be drawn against the accused by reason of his or her failure to answer questions asked by a person in authority, or to supply information to such a person (R v Stavrinos (2003) 140 A Crim R 594).
  58. The prosecution also must not suggest that the right to silence is subject to exceptions that allow adverse inferences to be drawn in certain circumstances (R v Stavrinos (2003) 140 A Crim R 594).
  59. Consequently, the prosecution ordinarily must not:
  60. Where the prosecution breaches this prohibition, the judge may be able to remedy the situation with a strong direction (see, e.g., R v Coe [2002] NSWCCA 385).
  61. Such a direction should tell the jury:
  62. These directions should be given when the improper suggestion is made, and again during summing up (R v Coe [2002] NSWCCA 385; R v Brown [2004] VSCA 59).

    Prohibited Directions

  63. The jury must not be invited to take the accused’s pre-trial silence into account against him or her in any way (Petty v R (1991) 173 CLR 95; Evidence Act 2008 s89).
  64. This means that judges must not suggest:
  65. The judge should not comment on the fact that a particular matter was not raised at the committal proceedings, or imply that there was a duty to raise matters at committal (Petty v R (1991) 173 CLR 95).
  66. The judge also must not tell the jury:

    Notes

[1] An investigating official is defined in the Dictionary to the Act to be either a police officer, or a person appointed by or under an Australian law whose functions include the prevention or investigation of offences. People who are engaged in covert investigations under the orders of a superior are excluded.

[2] This inference is prohibited by the common law. While it may also be prohibited by s89, this issue has not yet been decided by an appellate court (see R v Coe [2002] NSWCCA 385).

[3] In R v Merlino [2004] NSWCCA 104 the NSW Court of Criminal Appeal seems to have suggested that there may be some circumstances in which an adverse inference can be drawn from the accused’s failure to raise a defence at the point of arrest. However, this decision seems difficult to reconcile with the High Court’s decision in Petty v R (1991) 173 CLR 95.

[4] As long as this inference is drawn from the accused’s conscious omission of details from his or her account, rather than his or her failure to answer a question or respond to a representation, it appears not to breach Evidence Act 2008 s89.

[5] See Chapter 5 of the Victorian Criminal Proceedings Manual for more information on the operation of pre-trial processes and the consequences of non-compliance.

[6] This caution is required by Crimes Act 1958 s464A(3). The prohibition against drawing adverse inferences applies regardless of whether such a caution has been administered (Petty v R (1991) 173 CLR 95).

[7] In many cases it will be appropriate to exclude such evidence, as the risk of prejudice to the accused will outweigh the probative value of the evidence. This will especially be the case where the jury is asked to determine the meaning of a gesture which they did not see (see, e.g., R v Astill NSW CCA 8/7/92).

Last updated: 16 February 2017

In This Section

4.16.1 – Charge: Failure to Answer Police Questions

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings