Report No. 180
In New South Wales, though the prosecution is expressly prohibited from commenting to the jury on the fact that the defendant did not give evidence, the judge and any party (other than the prosecution) may comment to the jury if the defendant does not adduce evidence. However, there are restrictions in the nature of comments which are permitted. Any suggestion that the defendant did so because of a belief of guilt is prohibited.
Section 20 reads as follows: (NSW)
"Section 20. Comment on failure to give evidence.- (1) This section applies only in a criminal proceeding for an indictable offence.
(2) The judge or any party (other than the prosecution) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
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(a) two or more persons are being tried together for an indictable offence; and
(b) comment is made by one of those persons on the failure of any of those persons to give evidence, the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b)."
Under sections 12 and 17, the defendant is a competent but not a compellable defence witness. In spite of the prohibition on prosecution comment, it can happen that the prosecution may refer to the judicial comment that the defendant remained silent. The prosecutor has however to take care to see that he is not adopting the judge's comment as his own. The question as to the limits of the right to silence indeed arose in Weissensteiner v. The Queen (1993) 178 Com Law Rep 217. In that case, which arose from Queensland, by majority of four against three, Mason CJ, Brennan, Deane, Dawson and Toohey JJ upheld the trial judge's direction to the jury that an inference of guilt could be drawn if the defendant elected not to give evidence about facts which must have been within his special knowledge.
They further held that adverse inference could be drawn from a defendant's election not to testify where the evidence established a prima facie case, and that the "silence" could then go into the evaluation of the evidence before the court. The majority, however, admitted that mere failure to testify, was not evidence of guilt and that silence could not fill up gaps in the evidence. The judge was bound to inform the jury that the defendant was entitled to remain silent and that there could be good reasons for his silence which was unrelated to his guilt.
As stated earlier, the above case arose from Queensland where, the relevant statute did not contain any prohibition against comment. There was no section corresponding to section 20 of the New South Wales law. In the same case, the majority quoted some early English rulings to the effect that the right to silence was always part of the common law, both in civil and criminal cases, that a person who could be presumed to have knowledge of some facts, must speak out and if not, that could go against him.
An earlier decision in Australia, namely, Petty v. Queen: (1991) 173 Com L.R. 95 was distinguished. (In Petty, it was decided that, at trial it was not permissible to suggest that the accused's exercise of the right to silence before trial, could provide a basis for inferring consciousness of guilt or for inferring that he was aiding a defence newly invented which he failed to mention earlier.) It was observed that Petty did not determine whether it was permissible for the trial judge to instruct the jury that an inference available from facts proved by the Crown could be drawn more safely when the accused elected not to give evidence on relevant facts which the jury perceived to be within the personal knowledge of the accused.