Australia: Reform of Criminal Trial Procedure — The Limits of the Right to Silence
| Published date | 01 April 2000 |
| Date | 01 April 2000 |
| Pages | 156-161 |
| DOI | https://doi.org/10.1108/eb025979 |
| Author | G.L. Davies |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 8 No. 2 — International
INTERNATIONAL
Australia: Reform of Criminal Trial Procedure — The
Limits of the Right to Silence
G.
L. Davies
INTRODUCTION
The report of the Working Group on Criminal Trial
Procedure did not discuss the right to silence in any
detail or arrive at any conclusion about it. There
were, it appears, two reasons for this. First, it
would have required considerable research and time
and, as the report in effect remarks, the members
did not have the luxury of either. Secondly, at the
time this report was published, reports from the
New South Wales Law Reform Commission and
the Western Australian Law Reform Commission
on this topic were expected. The former has not yet
appeared; the second is referred to below.
While there is therefore no criticism being made
here of the Working Group's failure to deal with
this topic, that failure is, in retrospect, unfortunate
in two respects. The first is that this is an area of
the law which is in need of substantial reform and
nothing which has yet emerged from any law
reform body shows any real understanding of this.
The second is that a true appreciation of the need to
reform the present law in this respect would have
led, in turn, to a recommendation of the most
useful, perhaps even the only effective, means of
implementing that part of a pre-trial regime that
provides for disclosure by a defendant, namely,
providing for a jury to be capable of drawing an
adverse inference from a failure to disclose and for a
defendant to be told that a failure to disclose may
result in such an inference being drawn. Both of
these are discussed in what follows.
A QUESTION OF DEFINITION
No rule has been the subject of as much confused
thinking as the right to silence. That confusion results
in and from a failure to define the right accurately
and has been, in substantial part, a source of con-
clusions by law reform bodies in New South
Wales, Victoria" and Western Australia that it
should not be substantially changed. Once the true
nature of the so-called right is revealed it can be
seen that it has no logical, common-sense or historical
rationale, that its precise ambit is uncertain and that,
consequently, it is in need of reform. For an under-
standing of what it is and what it is not, see below.
The so-called right to silence is, and is no more
than, an immunity of a criminal defendant from
adverse inferences being drawn from his or her
silence, an immunity which may arise at one of two
stages: when being interviewed by a police officer
or other person in authority, and in court.
It is not, and is not part of, an immunity from
compulsion to answer questions or give evidence.
That immunity has two legitimate rationales. The
first is respect for human dignity; to force someone
to speak is arguably to infringe a basic human right.
The second is a more pragmatic one, the unreliability
of a forced confession.
The truth is that there is no logical or common-
sense connection between the immunity from
adverse inferences and the immunity from compul—
sion to speak. Indeed they are antithetical. Nor is
there any legitimate historical connection between
them.
That these immunities are antithetical can be seen
from the fact that, if juries were permitted to draw
an adverse inference from a criminal defendant's
silence in answer to a suggestion or accusation, there
would be less incentive for the interviewer to resort
to compulsion or trickery to obtain a confession.
Conversely, refusing to permit the drawing of such
inferences tends to encourage such behaviour.
That they have no legitimate historical connection
can be seen from their respective histories, traced
briefly in 'No legitimate historical rationale'
below. In short, whereas the immunity from com-
pulsion is of ancient origin, existing in the courts of
Chancery long before the time of the Star Chamber,
the immunity from adverse inferences is a 20th-
Journal of Financial Crime
Vol.
8. No. 2, 2000. pp. 156-161
© Henry Stewart Publications
ISSN 0969-6458
Page 156
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