Public Defenders

The 'Right' to Silence - Only Half a Right

This paper was written by District Court Judge John Nicholson SC when he held the position of Senior Public Defender

It was delivered to the Government Lawyers, CLE Convention & Dinner held at the NSW Parliament House on 18th October, 2000



Last week the NSW Law Reform Commission published its report The Right to Silence. On the 20th November the High Court will be sitting a bench of seven judges in the matter of Azzopardi specifically to consider the issue of silence at trial. The Attorney General's Department has called for, and is considering submissions in respect of the Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2000 which the government is anxious to place before parliament for its consideration. Fundamental re-evaluations of the usefulness of the 'right' to silence - in the context of the objectives of the criminal justice system- are happening all about us.

The 'right' to silence is probably a misnomer The Law Reform Commission Report on the Right to Silence identified the right to silence as follows:

'1.3 'The expression 'the right to silence' describes a group of rights which arise at different points in the criminal justice system. This group of rights includes:

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officer or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity (at least in certain circumstances...) possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.. The right to silence is more properly described as a right against self-incrimination and a right to remain silent without suffering an inference of guilt as a consequence. There have been two foundation pillars upon which the right against self-incrimination or more colloquially, the 'right' to silence has rested in the past. "

*There has been a right against self-incrimination; both at the investigation stage and at the litigation stage. While the right is widespread, in the sense that it applies in the absence of legislative provision to the contrary, it is not universal, because there is no Bill of Rights protection. Thus, for example, police subject to internal police investigations; persons giving evidence to Royal Commissions have no guarantee against self-incrimination at the investigation stage. Likewise, at the litigation stage, an accused person giving sworn evidence [usually cross examination] at his/her trial cannot plead a right against self-incrimination in respect of the matter charged, although may do so in respect of other matters.

*Interwoven with the right to silence there has been a burden upon the prosecution when alleging criminal conduct against a person before a court, to prove its allegation without assistance from the person accused. This concept required the prosecution to advance its case even if ignorant of any answer the accused person might seek to make at trial should the accused choose to provide an answer in the defence case.

How things have changed. Again, in the absence of Bill of Rights protection, this burden on the prosecution has been diminished in the past and is liable to be further diminished in the future..

The 'right' to silence during criminal investigation.
In the distant past, both in respect of the investigation of crime, and the litigation of charges arising out of that investigation, suspects and accused persons have enjoyed, and taken advantage of their 'right' to silence. That right still appears to be preserved qua official questioning at the investigation stage by s.89 of the Evidence Act 1995. In this audience that starting point is well enough known, not to labour with in any detail.

In England, though, the 'right' of silence during investigation is less secure. Avid watchers of 'The Bill' will know the police 'caution' for suspects is different from that used in NSW While the right to silence remains, suspects are reminded that their silence 'may harm your defence' if exercised and the suspect later seeks to assert a matter going to his/her defence. Many suspects, in the face of such a reminder, are prepared to forego their right to silence.

The 'harm to your defence' arises out of the capacity prosecutors and judges have at trial of commenting upon the failure of an accused person to give an account when questioned by the police. Not surprisingly, civil libertarians see the English position as an undermining or diminution of the right against self-incrimination, perhaps growing out of a particularly fevered law and order climate, in part, driven by fear of such extreme events as terrorist bombings..

In the absence of any Bill of Rights protection, political pressure from police frustrated too often by non-cooperative suspects, is likely to see a diminution of the right against self incrimination at the investigation stage as NSW follows a path similar to the English path.

The 'right' to silence crumbles at the litigation stage
To many there is no overlapping period between the period of investigation of a crime and the period of the litigation of charges arising out of that investigation. The simplistic view is that once the investigation is finished, the litigation of charges commences.

Anyone who has worked for prosecution will tell you such is not the case. It is important to understand the litigation process commences with the laying of charges at the police station, or the issuing of the summons. Thereafter, the expectation is that the resolution of the criminal charges thereby created will be achieved by the court processes being completed. However, the investigation is not necessarily at an end. Thus any incursion into the right to silence during the litigation stage of a criminal matter, permits the prosecution to orchestrate with some precision the continuing investigation of the crime. From a purist's point of view, one less than desirable implication is that the prosecution advocates may become investigators, whether they like it or not.

Notice provisions chisel away the 'right' to silence.
Since 1974 there has been a diminution of the 'right' to silence initially at the pre-trial stage and more recently at the trial itself.

The first serious incursion into the 'right' to silence came in 1974 with the requirement to give notice of alibi [then s.405A of the Crimes Act 1900, now s. 48 Criminal Procedure Act 1986] within a prescribed period [10 days after committal]. Failure to give notice means the accused has to obtain leave of the court to adduce evidence in support of an alibi.

Of course, the prosecution, upon receiving the notice, invariably required the police to investigate the claimed alibi. Thus, in addition to gaining an insight into the defence being mounted in the litigation phase of the trial, the police would be given a 'second wind' in the investigation phase. Many an accused has been undone by his 'alibi notice' and many an alibi has evaporated after witnesses have been subject to inquiry by police checking their account. Worse, more than one alibi notice has been tendered against an accused person, as evidence going to the question of guilt.

Abolition of the 'Dock Statement' impacts upon the right of silence at trial
During trials in the 18th Century, an accused was prohibited from giving evidence in his trial. It was assumed he would have difficulty being true to his oath to tell the whole truth. This was a time when the prosecution had the burden of proving the guilt of the accused with no assistance from him. By way of reform an accused was permitted to make an unsworn statement in answer to the Crown case. The right was recognised at common law, and captured in statute by s.405 Crimes Act 1900

Prior to June 1994 any person accused on indictment could make an unsworn statement at the close of the prosecution case and before calling any defence witnesses. The so called 'dock' statement was not subject to cross-examination, Moreover, the election to make the statement could not be the object of adverse judicial comment comparing it with the accused's other option of giving sworn evidence. In June 1994 an accused's person's right to make a 'dock' statement was abolished. The abolition of the 'dock' statement has diminished the accused's 'right' of silence. An accused still has the right to remain mute - but the exercise of this right carries with it perils. S.20 of the Evidence Act 1995 permits a judge or co-accused to comment upon the failure of an accused to give evidence. While Weissensteiner and more recently RPS [in the High Court] have circumscribed the scope of comment available to the judge [see also OGD and R v Fowler in the CCA], nonetheless in a more limited range of cases a failure to give evidence may still excite unappealable comment from the judge.

Even the witness's right to silence no longer secure
A witness may object to giving particular evidence on the grounds that the evidence may prove that the witness has committed an offence. Notwithstanding the common law right against self incrimination, where the court is satisfied that the interests of justice require the witness give the evidence the court may require the witness to give the evidence. In such circumstances the court will give the witness a certificate so that the evidence and evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person. Where the witness is the accused, the limited protection offered to other witnesses does not apply to the matter(s) charged in the indictment, [see s.128 Evidence Act 1995].

Nonetheless, the right to silence has not been preserved. What was once unrevealed now become revealed, and can be the subject of investigation for new and independent sources of incriminating evidence.

The highway of defence disclosure opened up by 'notice' provisions.
As earlier stated, the requirement of the defence to notify the prosecution of its intention to call alibi evidence represents an incursion into the 'right' of silence at the litigation stage. The mechanism of requiring notice to be given to the prosecution by the defence flourished in legislation since 1995.

The passage of the Evidence Act 1995 had defence disclosure consequences not foreseen by criminal advocates [or at least this criminal advocate] during the preliminary discussions at the Evidence Bill stage.

The Evidence Act 1995 requires disclosure, even by the defence in certain circumstances. That disclosure, of course, is not done in a vacuum. Any defence disclosure is evaluated by the prosecution against the issues raised by the prosecution evidence.

Thus where the defence seek to adduce evidence of the contents of a foreign document; [s.48;49]; adduce evidence of the contents of 2 or more documents in the form of a summary, [s.50]; adduce hearsay oral or documentary evidence of a previous representation where the maker is not available[s.65(8), 67]; adduce hearsay evidence of reputation as to relationship and age, [s.73(1) and (2)]; adduce evidence of tendency (character, reputation or conduct of a person to prove tendency), [s.97]; adduce evidence of coincidence (the improbability of two or more events occurring coincidentally), [s.98]; notice must be given by the defence. The prosecution is able to evaluate by the terms of the notice at least some of the issues the defence will be relying upon. This may commend to a prosecutor areas for further investigation by the police.

Of a similar character are the provisions, in sexual assault cases requiring notice to be given of an intention to adduce evidence disclosing a protected confidence or the contents of a document recording a protected confidence unless the party calling the evidence (in this case the defence) has given reasonable notice in writing to each party, and the protected confider, [see s.151(2) Criminal Procedure Act 1986]

Division 3 of the Criminal Procedure Act 1986 is entitled 'Pre-trial defence disclosure' Already referred to is the requirement to give notice of alibi [s.48].
Since 1999 an accused person, on trial for murder, must give notice of intention to adduce evidence of substantial mental impairment where he/she contends that by virtue of the substantial mental impairment he/she is not liable to be convicted of murder. A failure so to do means the accused person, cannot without the leave of the court call any other person to give evidence unless the notice included the name and address of the other person, and particulars of the evidence to be given by the other person.

No doubt 'particulars of the evidence to be given' would include the history given to the psychiatrist or psychologist or other forensic expert usually called to advance the case, including the accused's version of the circumstances in which the killing occurred. It is not difficult to see how the 'right' to silence, or more importantly, the right against self-incrimination has dissipated in these circumstances.

Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2000
Introduced into Parliament by the Government in August 2000, the principal objects of the Bill are to enable a court, on a case by case basis to impose pre-trial disclosure requirements on both the prosecution [who already have a duty to disclose] and the defence. The contents of the Bill have been spoken on by an earlier speaker. Formy purposes, what is apparent is Parliament is contemplating further and more detailed disclosure being required by the defence. The rationale of the Bill is that defence disclosure is needed to reduce delays in complex criminal trials. [It was the same rationale given for the abolition of the dock statement - and my understanding is that trials have lengthened since the abolition of the dock statement]. The 'Pre-Trial Disclosure' Bill seems modest by comparison with the recommendations of the Law Reform Commission.

Oh Woe!!! - Law Reform Commission strongly favours full defence disclosure
If the Law Reform Commission recommendations have any impact, the defence may be required to disclose the following material and information in writing, unless the Court otherwise orders:

alibi evidence and substantial impairment by abnormality of the mind [both already required]
* accident, automatism, duress, insanity, intoxication, provocation, self-defence;
* in sexual assault cases, consent, a reasonable belief that the complainant was consenting, or that the defendant did not commit the act constituting the sexual
assault alleged;
* in deemed supply cases, whether the illicit drug was possessed other than for the purpose of supply;
* in cases involving an intent to defraud, claim of right.
* the Court may order disclosure of the general nature of the case an accused proposes to present at trial, identifying the issues to be raised, whether by way of
denial of the elements of the charge or exculpation, and stating, in general terms only, the factual basis of the case which is to be put to the jury.
* all reports of defence expert witnesses - the reports clearly identifying the material relied on to prepare them.
* whether issue is taken with any part of prosecution expert witnesses report, and if so, in what respects.
* whether prosecution expert witnesses are required for cross-examination
* whether strict proof is required of prosecution surveillance evidence, and if so to what extent
* whether there is any issue as to provenance, authenticity or continuity of proposed prosecution exhibits
* whether listening device transcripts relied upon by the prosecution are accepted as accurate, and if not, in what respects is issue taken
* whether there is any issue as to admissibility or accuracy of any charts, diagrams or schedules relied upon by the prosecution
* the names and addresses of defence character witnesses, to enable to prosecution to check on the antecedents of these witnesses.
* issues of challenged admissibility of any aspect of prosecution evidence of which notice has been given
* issues concerning the form of the indictment, severability of the charges, separate trials or applications for a 'Basha' inquiry.


The inter-weaving of the 'right' to silence and the burden of proving the guilt of an accused is being too rapidly unstitched for reasons not candidly articulated. Parliament abolished the dock statement arguing it lengthened criminal trials. Pre-trial disclosure is also advocated 'in order to reduce delays in complex criminal trials.' Criminal Procedure Amendment Bill 2000 -Explanatory Note These reasons are nonsense and hide the true agenda. Pre-trial disclosure will lengthen the pre-trial litigation process, not diminish it. Any lengthening of the pre-trial process cannot diminish delay. Indeed, it is arguable it will not contribute to the more efficient use of court time, if the Court is caught up in adjudicating on what does or does not comply with disclosure requirements.

The unstitching of the inter-weaving of the right to silence and the burden of proof is changing the balance of fundamental cultural values -presumptions of innocence, and burdens of proving guilt. With pre-trial disclosure comes the pressure on the accused to establish -at least pre-trial- that he has an arguable defence. What happened to the concept that the Crown must prove its allegations of criminal conduct without assistance from the person accused. What has happened to the concept that the prosecution should advance its case even if ignorant of any answer the accused person might seek to make. It won't be long before courts are asking accused persons 'How can you possibly run a trial?'

Finally, we should no longer kid ourselves that the right to silence has been preserved during the investigation stage. The investigation of those accused of crime will now (if it didn't in the past) continue right up until the jury retires to consider its verdict. Each requirement upon the defence to give a disclosure notice of one kind or another, is an abuse of the right to silence - an abuse which is occurring not only at the litigation stage, but also at the prolonged investigation stage.


John Nicholson SC