MEDICO-LEGAL SOCIETY OF NSW
13 March 2002
Nicholas Cowdery QC
Director of Public Prosecutions, NSW
In the Victorian Law Institute Journal in April 1984, Mr Justice Marks of the Victorian Supreme Court wrote an article entitled “’Thinking up’ about the right of silence and unsworn statements”.
[The expression “thinking up” he derived from the writings of an old “China hand”,
C L Arlington, naval adviser to the Manchu throne, who said that if you wanted to understand China you had to “stand on your head and think up”. We have come a long way in our understanding of China since then, by more conventional means; but “thinking up” may still be useful to tackle the ancient mystery of the right to silence, all else having failed.]
Unsworn statements, of which Justice Marks also wrote, have now gone, so I need not trouble you about those.
But we still have the right to silence – or at least, we think we do.
Justice Marks wrote this about it:
“The right of silence tends to be inviolate for many people, particularly lawyers. Its mention touches an emotional chord. The reason is its association with past struggles for liberty and civil rights. But those struggles from which the privilege emerged were for the right to think according to one’s conscience, ie, to decriminalise religious and political dissent. What was involved was what ought or ought not to be a crime, not whether a particular person was or was not a Catholic, Puritan, Brownist, Calvinist or Separatist, as well he might have been, but whether he should be deprived of liberty for being so. Freedom of conscience is today unassailable but not because the right of silence exists or protects it or has any relevance to it at all. What then and who, does it protect? What is its present justification?”
That is the issue – because the question of the right to silence now arises only in relation to conduct that is unquestionably criminal. Its origins, which Justice Marks explored in great detail, explain its former importance – but does it still matter?
Justice Marks continued:
“No one would rationally suggest that in the investigation of that conduct [ie conduct that is now unquestionably criminal] it would be wrong or unfair to ask a suspect what he has to say about an alleged crime if it is legitimately in the community’s interest to know. If a suspect refuses to answer, the inference which common sense dictates ought not to be proscribed. In my view that does not transgress any fundamental concept of liberty. No modern community can survive unless its citizens accept accountability as a fundamental duty.”
So is it a rule that now merely assists the experienced criminal?
THE RIGHT TO SILENCE
Let us take stock of the present position. There is no “right to silence” as an independent right. It is not guaranteed in any part of the “international bill of rights” – the UDHR, the ICCPR and the ICESR. It does not appear as such in any international, regional or domestic instrument or law.
The closest one comes to such a concept in the international sphere is in Article 14.3(g) of the ICCPR:
In the determination of any criminal charge against him, everyone shall be entitled …
(g) not to be compelled to testify against himself or to confess guilt …
and in Article 40.2(b)(iv) of the UN Convention on the Rights of the Child:
… States parties shall … ensure that …
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees …
(iv) Not to be compelled to give testimony or to confess guilt …
We need to be clear about what we mean when we talk so glibly (as we do) about the “right to silence”, because it is not one concept to be addressed in only one way. A good analysis was made of it by Lord Justice Mustill delivering the judgment (with which the other Law Lords agreed) in R v Director of Serious Fraud Office, ex parte Smith (1993) AC 1 at p 30 when he said:
“This expression [the right to silence] arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute.
His Lordship then identified a number of these immunities, including:
· a general immunity, possessed by all, from being compelled on pain of punishment to answer questions posed by others;
· a general immunity, possessed by all (except, in Australia, corporations and individuals subject to statutory compulsion) from being compelled to provide answers to questions which may incriminate them;
and specific immunities:
· possessed by all criminal suspects being interviewed by police (or others in authority), from being compelled to answer any questions;
· possessed by accused persons at trial, from being compelled to give evidence or answer questions; and
· possessed by accused persons at trial, from having adverse comment made on any failure to answer questions before trial or to give evidence at trial.
This analysis highlights the fact that the so-called “right to silence” includes a number of propositions that are not of the same kind or nature and are not directed towards the same ends. While generally it may be able to be said that they are directed towards ensuring the fairness of the criminal justice process towards a suspect or accused person, they are not just variations of the same expression and they have not arisen from the same source. A variation of one would not necessarily affect another – each can be considered in isolation. And some of the propositions have indeed been modified in some jurisdictions by statute.
Lord Justice Mustill examined the motives for the recognition of the various immunities and identified the following (some of which have a distinctly English flavour).
1 One person should so far as possible be entitled to tell another to mind his own business.
2 There is a long history of reaction against abuses of extra-judicial interrogation.
3 It is contrary to fair play to put an accused in a position where he is exposed to punishment whatever he does.
4 There is a desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession.
All of that is very true – but how far – and at what cost – do we need to go to avoid those ills?
LAW REFORM COMMISSION
On 1 August 1997 the NSW Government referred the question of the right to silence to the NSW Law Reform Commission (chaired by Justice Adams). The Commission reported in July 2000 (Report 95). The reference was a broad one, including questions from whether or not such a right should exist at all to questions of disclosure by the defence.
In its report the Commission referred to Lord Justice Mustill’s analysis and covered a suspect’s right to remain silent when questioned by police, pre-trial and pre-hearing disclosure duties (by prosecution and defence) and a defendant’s (or accused person’s) right to remain silent at trial.
The Commission thoroughly investigated the historical development of this so-called right and all relevant issues and produced, in my view, cogently argued recommendations for reform which, if implemented, would have better enabled the criminal investigation and trial process to do, without real prejudice to a suspect or accused person, what some people naively think it does already – to find the truth of an allegation against an accused. Unfortunately, however, only some of the recommendations were taken up by the Government and that was done in a way in which a significant and costly additional burden was imposed on the prosecution and most obligations on the defence were so qualified that they would almost never apply. Such is the process of law-making in our democracy.
Investigations into crimes usually begin with a complaint of criminal conduct or with someone witnessing a criminal incident and taking immediate action. Inquiries are made and usually a suspect is identified and may be questioned. A suspect is under no obligation to say anything to investigators (with some very minor exceptions in relation to some minor regulatory offences). The suspect must be warned – cautioned – and may refuse to speak. There is no penalty or adverse consequence for such action at any stage in the prosecution process.
Common sense might tell you that this is an unsatisfactory situation – that it operates to the detriment of society generally. In this day and age, when just about everybody has had at least a basic education and knows right from wrong, a court should be able to draw an appropriate inference from the reaction of a suspect in such a situation. Allowances can always be made for the intellectual, linguistic, cultural or social circumstances of the individual in drawing such inferences in later proceedings.
In the UK they have responded to common sense and those who watch “The Bill” will be familiar with the caution that is given as the suspect is being tackled to the ground or having his arm twisted up his back. It is a warning that whatever the person says, or the fact that he or she says nothing, may be taken into account adversely in later criminal proceedings and “may harm your defence”.
Any confessional statement – any admission against the interest of the person – must be made voluntarily in order to be admissible in evidence and used against the person. This stems from the proposition that an involuntary admission carries the risk of being untrue. A confession extracted by torture may have been made just to stop the torture. It is also, of course, socially undesirable for police to go about trying to force people to confess to crimes (although it does happen and must therefore be deterred). The rules that have developed around the use in evidence of only admissions that are voluntary are now largely uncontroversial.
But what if a suspect says nothing (as is his or her right)? What if a person whom we know from other evidence is or was in a position to know something about the crime will say nothing at all? Should a court be able to draw an inference from that silence and the other evidence or to use it as an aid to drawing conclusions about the suspect’s involvement? Some may say – what sort of inference? Or – in what circumstances? I would say – that is a matter for guidance by the judge, who is well qualified to carry out these procedures in everyday work with appropriate safeguards for the accused.
When a person has been charged with a criminal offence and the matter is to go to court, a full brief of the available evidence is prepared and a copy provided to the accused. The prosecution is under a continuing duty to disclose all relevant material in its possession. That is as it should be.
What of the accused person and his or her legal representatives? There is no obligation on them to disclose anything to the prosecution, except notice of alibi evidence if a defence of alibi is to run, a defence of substantial impairment of mental functioning and notice of certain categories of evidence prescribed by the Evidence Act (the contents of a foreign document, a summary of documents, hearsay evidence of a previous representation where the maker is not available, hearsay evidence of reputation as to relationship and age, tendency evidence and coincidence, protected confidences). So the prosecutor can go to court for a trial in most cases not knowing at all what issues are going to be contested, what defences are to be run and what evidence is likely to be called and need testing and perhaps challenge. Is that fair? (Remember, an accused person is the first to squeal if there is not a fair trial from his or her perspective.) Where is the injustice in requiring an accused to identify from an early stage just what the contest is going to be about? But their advocates say that to impose such a requirement would be to infringe the right to silence.
We, the taxpayers, are among those who pay for this inefficiency by supporting the conduct of more trials than there should be and longer trials than there should be.
The Government, in responding to the Law Reform Commission’s report, has in fact imposed more and costly obligations on the prosecution, but has not required anything much of the defence except in cases declared to be “complex criminal trials”. I predict that there will not be many of those.
An accused person need not say anything at trial, from start to finish. That is also part of the right to silence. Furthermore, if he or she remains silent, no adverse comment can be made about that by the judge to the jury and the jury cannot draw any adverse inference from that silence. That, at least, is the theory and the law. But juries are exhorted to apply their common sense to a case and they do – and I am sure that their common sense often tells them that a person in the position of the accused, if in truth not guilty, would be able to tell them something exculpatory about the circumstances of the events and that his or her failure to do so can only be due to a desire to cover up guilt.
Somewhat strangely, the silence of an accused at trial cannot be commented upon by the prosecution, but can be commented upon by a co-accused.
I think that it is fair that the further along the criminal justice path a suspect proceeds, the greater should be the expectation of an increasing degree of cooperation by the accused with the community in that process. This comes back to Justice Marks’ view that the community should accept individual accountability as a fundamental responsibility. While it may be arguable that what is said or not at the time of first confrontation between police and a suspect should be treated generously, once the evidence has been examined by prosecutors and a magistrate and there has been an order for a trial to take place, then it is no longer acceptable that the accused can sit on his or her hands and simply say: “You prove it”. By that stage, in my view, the accused should be required to cooperate increasingly in the criminal justice process – not to be made to actively assist in proving his or her own guilt, but to provide assistance in discovering the truth of the allegation.
Who is protected by the right to silence? It is certainly not the community of which the accused is a member and from whom the accused draws support and assistance. It is predominantly the guilty person who is not in a position to loudly proclaim innocence from the first opportunity.
I conclude with another statement by Justice Marks:
“It is accepted that compulsion of suspects or accused to answer questions is incompatible with a civilised system of justice. But the law may be seen as irrational and socially mischievous where it disallows consideration of potentially inculpating conduct, such as ominous silence …”