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4.17 - Silence in Response to Equal Parties

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Right of Silence Does Not Apply to Equal Parties

  1. 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. See Silence in Response to People in Authority).
  2. That aspect of the right of silence is designed to prevent oppression by the police or other authorities of the State. It does not encompass silence towards people with whom the accused speaks on equal terms (Petty v R (1991) 173 CLR 95 per Brennan J; R v Alexander [1994] 2 VR 249; R v Brown [2004] VSCA 59).
  3. It is therefore possible for an adverse inference to be drawn from the accused’s silence in response to a question asked, or accusation made, by a person other than a police officer or authority figure (see, e.g., R v Salahattin [1983] VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 671; R v Brown [2004] VSCA 59).

    When Can an Adverse Inference be Drawn

  4. An adverse inference can be drawn from a person’s silence where a statement was made in his or her presence, and in the circumstances an answer would have been expected (Woon v R (1964) 109 CLR 529; R v Salahattin [1983] VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 671; R v MMJ (2006) 166 A Crim R 501).
  5. In such circumstances, the jury may infer that by remaining silent, the person:
    1. Implicitly admitted the truth of the statement in whole or in part; or
    2. Demonstrated a consciousness of guilt (Woon v R (1964) 109 CLR 529; R v Salahattin [1983] VR 521; R v Alexander [1994] 2 VR 249; R v Gallagher [1998] 2 VR 671; R v MMJ (2006) 166 A Crim R 501).
  6. This topic focuses on using the accused’s silence for the first-mentioned purpose. See Incriminating Conduct (Post Offence Lies and Conduct) for information concerning the latter use of the accused’s silence.

    Admissibility

  7. A statement made in the accused’s presence will only be admissible if, in all the circumstances, it is open to the jury to conclude that:
  8. In most cases, evidence of the statement will be admitted solely to identify the subject matter of the accused’s response (as the statement itself will have little probative value). However, unless a judge limits the use of the evidence under Evidence Act 2008 s136, the statement may be used as evidence of the truth of the facts it can reasonably be supposed the speaker intended to assert (Evidence Act 2008 s60).
  9. Evidence of the accused’s silence may be excluded under Evidence Act 2008 ss135 or 137. It may be appropriate to do so where:

    Directions

  10. 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.
  11. Where directions are necessary, the judge should instruct the jury about:

    Nature of the Statement and Response

  12. The jury must determine precisely what statement (if any) was made in the accused’s presence (see, e.g., R v MMJ (2006) 166 A Crim R 501; R v Salahattin [1983] VR 521).
  13. Where the timing of the statement is important, the jury may also need to determine approximately when the statement was made (R v MMJ (2006) 166 A Crim R 501).
  14. The jury may also need to determine whether the statement contained an implicit allegation against the accused (e.g., that the accused had engaged in inappropriate sexual conduct with the complainant) (R v MMJ (2006) 166 A Crim R 501).
  15. Once the jury has determined the nature of the statement made, they will need to determine how the accused responded to that statement (i.e., whether or not he or she remained silent) (R v MMJ (2006) 166 A Crim R 501).

    Was a Response Expected?

  16. The jury must determine whether the statement called for a response. An inference can only be drawn from the accused’s silence if the circumstances were such that, in ordinary experience, the accused would have been expected to respond to the statement made in his or her presence (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501; Sibanda v R (2011) 33 VR 67).
  17. This is a question of human experience – of the probability that a person would react in a certain way in particular circumstances (R v Salahattin [1983] VR 521. See also R v Gallagher [1998] 2 VR 671; R v MMJ (2006) 166 A Crim R 501; R v Alexander [1994] 2 VR 249; Sibanda v R (2011) 33 VR 67).
  18. In determining this issue, the jury must consider all of the circumstances in the case. For example, it may be relevant:
  19. The relationship between the relevant parties may also be relevant. There may have been something in the relationship or relative positions of the parties that precluded the accused from responding (R v Salahattin [1983] VR 521).

    What Inference Can Be Drawn from the Accused’s Silence?

  20. If the jury finds that the accused failed to respond to a statement in circumstances where a person would ordinarily have been expected to respond, they must then determine what inference (if any) can be drawn from that fact (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).
  21. One inference the jury may draw is that the accused, by his or her silence, admitted the truth of the whole or some part of the statement made in his or her presence (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).[2]
  22. To draw this inference, the jury must find that by remaining silent in the circumstances, the accused acknowledged the truth of the statement made in his or her presence. In other words, he or she adopted the statement, making it his or her own (Woon v R (1964) 109 CLR 529; R v Thomas [1970] VR 674).
  23. The judge must direct the jury that they may only draw this inference if there is no other reasonable explanation for the accused’s silence in the circumstances, and direct them about any other reasons the accused may have had for remaining silent in the circumstances. For example, the accused:
  24. Even if the accused had no specific reason for failing to respond, it is for the jury to decide whether or not to infer that he or she had adopted the whole or part of the statement by his or her silence (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).
  25. It may be appropriate to direct the jury that people react to allegations in different ways, and that care must be taken when drawing any inferences from the accused’s silence.
  26. The jury must determine precisely what the accused was admitting (if anything) by his or her silence (R v MMJ (2006) 166 A Crim R 501).
  27. To a large extent, this will depend on the nature of the statement made in the accused’s presence. For example, if the statement did not (explicitly or implicitly) allege that the accused had committed the particular offence with which he was charged, then the accused cannot have admitted his or her guilt of that offence by remaining silent (see, e.g., R v MMJ (2006) 166 A Crim R 501).

    Direct the Jury About Possible Uses of the Admission

  28. The judge must direct the jury about the ways in which they can use the accused’s admission (R v MMJ (2006) 166 A Crim R 501).
  29. This will depend on precisely what the accused admitted by his or her silence. For example:
  30. Where an admission can only be used to demonstrate an improper sexual interest in the complainant, the judge may need to:
  31. The judge should direct the jury that they may only use the admission in the relevant way if they are satisfied that it is true (R v MMJ (2006) 166 A Crim R 501).

    Other Directions

  32. The judge may need to warn the jury under Jury Directions Act 2015 s32 that evidence of admissions may be unreliable. See Unreliable Evidence Warning for further information.
  33. Where the judge limits the use of the evidence under Evidence Act 2008 s136 (see above), the judge may need to direct the jury that:
  34. Where the jury are asked to draw an inference from the accused’s silence that he or she admitted the truth of part or all of the statement, the evidence is relevant as an implied admission. The prosecutor and the judge will need to comply with Division 1 of Part 4 of the Jury Directions Act 2015. See Incriminating Conduct (Post Offence Lies and Conduct) (c.f R v MMJ (2006) 166 A Crim R 501).
  35. If the prosecution has improperly suggested that the jury can reason that the accused remained silent out of a consciousness of guilt, the judge may need to direct them not to do so (Jury Directions Act 2015 ss16, 23; R v MMJ (2006) 166 A Crim R 501).

     

    Notes

[1] Section 89 addresses silence towards investigating officials: see Silence in Response to People in Authority for further information.

[2] The jury may also be able to infer a consciousness of guilt from the accused’s silence. See Incriminating Conduct (Post Offence Lies and Conduct) for further information.

Last updated: 29 June 2015

In This Section

4.17.1 - Charge: Admissions by Silence

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)

4.16 - Silence in Response to People in Authority

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