Report No. 180
After referring to all these various possibilities, Mason CJ clarified:
"The failure of the accused to give evidence is not by itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has, to put the prosecution to its proof. In some other circumstances, silence in the face of an accusation, when an answer might reasonably be expected, can amount to an admission by conduct. (see e.g. Reg v. Mitchell (1892) Cox. C.C. 503; , Reg v. Chandler (1976) (1) WLR 585 and discussion in Young, "Silence as evidence" Australian Law Journal, Vol. 66 (1992) p. 675). But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission.
The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial, cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right or not."
The principles laid above, together with the exceptions referred to, leaves one absolutely confused. They, in fact, appear to be absolutely contradictory.
Brennan and Toohey JJ gave a separate judgment concurring with Mason CJ. They referred to section 3 of the Criminal Law Amendment Act, 1892 (Q) which made a person accused of an indictable offence and the wife or husband of every accused person, a competent but not a compellable witness. In 1961, this provision was carried into section 618A of the Criminal Code. In 1977, section 8 of the Evidence Act, 1977 (Q) reproduced, with some variations, the earlier enactments. In several jurisdictions in Australia, similar laws precluded the making of any comment by the prosecution (Evidence Act, 1906 (West Australia); section 85(1)(c) of evidence Act, 1910 (Tasmania); R 18(1)(II) Evidence Act, 1929 (South Australia); Section 74(1) Evidence Act, 1971 (ACT).
In some instances, the statutes prohibited comment by the Judge (Section 407(2) Crimes Act, 1900 (NS Wales); Section 9(3) of Evidence Act 1939 (NT); Section 399(3) Crimes Act, 1958 (Victoria), on the failure of an accused person to testify. No such provision was found in the Queensland statute. We may point out that no provision from any Charter or Bill of Rights which guarantees a right against self-incrimination has been adverted by the majority in the above Judgment.
On the other hand, the minority Judgment of Garedron and McHugh JJ observe significantly that the right to silence is, of course, concerned with more than the presumption of innocence and the duty of the prosecution to prove guilt beyond reasonable doubt. They stated that, it is the presumption of innocence and the prosecution's burden of proof which preclude an adverse inference being drawn from silence. Silence does not amount to evidence.
"Because of the presumption and because of the burden of proof, silence of that kind proves nothing and provides no basis for any inference adverse to the accused. Neither the presumption of innocence nor the burden of proof bears upon the situation in which failure to explain is, itself evidence. Nor does the privilege against incrimination in circumstances involving an assumption that an innocent person would offer an explanation, the accused is not asked to testify against himself, but in favour of himself."
In our view, the minority judgment is more consistent with the right against self-incrimination while, the majority judgment of Mason CJ and the other concurrent judgment contain mutually contradictory passages. The majority had no occasion to refer to any constitutional guarantee like Article 20(3) of our Constitution nor to any international convention such as the ICCPR. As stated earlier, any trial Judge will find it extremely difficult to apply the exceptions to any given set of facts. The majority view is likely to lead to more litigation. Latter cases in Australia are R v. O.G.D. (1998) 45 NSW CR 744, RPS v. The Queen 2000 HCA 3, have also not been able to lay down the law in clearer terms.
Another unfortunate fact that has to be noted so far as Australia is concerned, is that the right of the defendant to make an unsworn statement at trial has been abolished in New South Wales in 1994, although the right still exists in some residual trials. Unsworn statements have now been abolished in all Australian jurisdictions. According to several jurists, this is yet another serious infraction of the right of an accused to speak, in case he wants to speak.
The Law Reform Commission of New South Wales, in its recent Report No.95 rendered in the year 2000, on the subject "The right to silence", after a review of the law in various countries and within Australia, has made several recommendations. One of the important recommendations is Recommendation No.1 and is to the effect that legislation based on sections 34, 36 and 37 of the Criminal Justice and Public Order Act, 1994 (UK) should not be introduced in New South Wales. However, Recommendation No. 5(a) and 5(b) appears to us to take away the effect of the Recommendation No. 1. The Recommendations 5(a) and (b) are important. Recommendation 5(a) states that the defendant shall be required to disclose the following material and information, in writing, unless the Court directs otherwise:-
"5(a) In addition to the existing notice requirements for alibievidence and substantial impairment by abnormality of mind, whether the defence, in respect of any element of the charge proposes to raise issues in answer to the charge, (e.g. 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; cases involving an intent to defraud, claim of right. Recommendation 5(b) reads as follows:
"5(b) In any particular case, whether falling within Recommendation 5(a) or not, the trial Judge or other Judge charged with responsibility for giving pre-trial directions may at any time order the defendant to disclose the general nature of the case he or she proposes to present at a 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, if actual basis of the case which is to be put to the jury."
Recommendation No. 10 then refers to the consequences of an accused not complying with the direction to furnish the material specified in Recommendation No. 5 ((a) and (b)). It reads as follows:
"10. The Commission recommends that Judges be given a discretion to impose any of the following consequences for non-disclosure or departure from the disclosed case during the trial:
(a) A discretion to refuse to admit material not disclosed in accordance with the requirements.
(b) A discretion to grant an adjournment to a party whose case would be prejudiced by material introduced by the other party which was not disclosed in accordance with the requirement.
(c) In jury trials, a discretion to comment to the jury or to permit counsel to comment, subject, if appropriate, to any conditions imposed by the trial Judge.
(d) In trials without jury, the trial Judge may have regard to the failure to comply with the disclosure requirements in the same way as a jury would be entitled to do so."
It appears to us that while the N.S.W. Law Commission has not recommended the incorporation of provisions similar to sections 34, 36 and 37 of the English Act of 1994, it has however made recommendations to require the accused to disclose his defence in several respects and upon the failure to so disclose, make adverse comments. Both the prosecution and the Judge are permitted to comment on the refusal of the accused to speak. In our view the above restrictions on the right to silence do not amount to a fair due process and further the jury and the Court cannot be allowed to take the silence into account before arriving at a finding that the prosecution has established guilt of the accused beyond reasonable doubt.
The Commission, no doubt, refers to a distinction between the silence at the time of questioning by the police, when no charges are framed and to the right at the trial, after charges are framed and states that silence at the stage of interrogation of police cannot have the same importance as silence at the trial, in as much as at that stage, there is no allegation or evidence. At the stage of interrogation, the suspect may remain silent because things are not clear. At the stage of trial, there is a charge and there is evidence and therefore there is less chance of a shock or confusion or inadequate preparation to answer the questions. Even so, it does not preclude silence at the stage of interrogation being taken into account by the Judge or the Jury.
The N.S.W. Law Commission in its Report indeed refers to various aspects relating to the right to silence and to Murray v. UK decided by the European Court, but the Commission does not, however, refer to the conditions laid down by the European Court, namely, that a prima facie case must be made out first and that even so, silence cannot be relied upon unless the suspect or the accused has been informed of his right to call an attorney.
We do not also find any justification for the Legislature in Australia in abolishing the right of the accused to speak if he so desires. In addition, the Commission has now recommended that, not only the Court, but even the prosecution can be permitted to comment on the silence because the jury may mistake the comment made by the judge as an indication that an inference of guilt may easily be drawn. The N.S.W. Commission, in the body of the Report, recommended as follows:
"The Commission recommends that prohibition on prosecution comment in section 20(2) as Evidence Act 1995 (NSW) should be removed. Prosecutors should be permitted to comment upon the fact that the defendant has not given evidence, subject to the restrictions which apply to comment by the trial judge and counsel for the defendant and any accused. The prosecution should be required to apply for leave before commenting."
As already stated, we are of the view that the above procedure is not a fair procedure. The law relating to prosecution in Australia, in our view, does not conform to the minimum standards prescribed by the ICCPR. Unfortunately, even the right of the accused to speak out has been abolished. We shall next refer to the law in England and Canada, which is absolutely in favour of the right of the accused to remain silent.