Published date01 April 2008
Date01 April 2008
Subject MatterNoticeboard
Cases and comments
Right to silence—Canada and Australia
In R v Singh 2007 SCC 48 the Supreme Court of Canada sanctioned a powerful
psychological tool to induce a detained suspect to talk and ignored the risk that
using it might lead to a false confession (although in this case it had not). The
defendant, acting on the advice of counsel, asserted his right to silence—in all 18
times—to no effect. The interviewing officer either affirmed that the defendant
was entitled to remain silent, or explained that it was the officer’s duty to put the
known facts to him and continued the interview. The officer candidly admitted at
the trial that he had been determined to get a confession ‘no matter what’. In the
end the defendant broke his silence by admitting that he had been at the pub at
which a shooting had taken place and followed this up by identifying himself in a
still photograph and on a CCTV video. This evidence was crucial to the prosecu-
tion’s case. At his trial, for murder, the defendant argued that the admissions were
involuntary and violated his right to silence which by virtue of s. 7 of the Charter is
a constitutional right. The trial judge held against him on both points after inves-
tigating the circumstances under which the admissions had been made. Singh
appealed the finding that his Charter right was not breached to the Supreme
Court. That court split five to four against him.
Charron J, for the majority, said that in circumstances where an obvious person in
authority is interrogating a person who is in detention, the right to silence is
functionally subsumed by the confessions rule expounded in R v Oickle 2000 SCC
38. That case held that a confession is involuntary if the result of threats or
promises or oppression or conduct that undermined the suspect’s ability to
exercise his free will to choose whether to speak or remain silent. In his appeal the
defendant did not allege that the confession was involuntary and therefore,
Charron J said, his appeal must fail. Singh’s argument to the Supreme Court was a

bold one; it was that the police must stop questioning a suspect in detention once
he declares that he does not wish to speak. Charron J said that the suggested rule
ignored the state’s interest in the effective investigation of crime. ‘What the
common law recognizes is the individual’s right to remain silent. This does not
mean that a person has the right not to be spoken to by state authorities’ (ibid. at
[28]). Charron J did acknowledge that persistent questioning of a detainee who
repeatedly asserted his right to silence might raise a strong argument that a subse-
quently obtained statement is not the product of his free will but said that in this
particular case the confession was not the result of the defendant’s will being
Fish J, for the four dissenting justices, did not agree that the right to silence was
eclipsed by the confession rule and concluded that the police had prevented the
defendant from exercising his right to silence effectively.
Potential witnesses are rightfully expected, as a matter of civic duty,
to assist the police by answering their questions. As a matter of law,
however, they may refuse to answer, and go on home. Prisoners and
detainees, on the other hand, are by definition not free to leave as they
please. They are powerless to end their interrogation … [T]his is why
they have been given the right to counsel and its close relative, the
right to silence. Neither of these rights have been given constitutional
protection on the condition that it not be exercised, lest the investigation
of crime be brought to a standstill. On the contrary, the policy of the
law is to facilitate, and not to frustrate, the effective exercise of both
rights by those whom they are intended to protect. They are Charter
rights, not constitutional placebos. (ibid. at [86]–[87])
There was no evidence, he said, that respecting the right to silence of a person in
detention paralyses police investigations, but even if it has an inhibiting effect,
the constitutional promise must be kept.
* * *
The appellant in Em v The Queen [2007] HCA 46 was charged with offences arising
out of two home invasions in January 2002. In April 2002 he was arrested and
interviewed under caution at a police station. He confessed to the second incident;
however, since, at his insistence, the confession was not recorded electronically or
written down, it was inadmissible evidence by virtue of s. 281 of the Criminal
Procedure Act 1986 (NSW), a provision designed to prevent verballing of suspects.
The police did not give up. After his release, the defendant was invited to go with

the police to a park for an informal chat with the two police officers who had previ-
ously interviewed him. On this occasion each officer wore a covert listening
device, use of which had received prior approval from a judge (as required by the
Listening Devices Act 1984). Before the questioning began, the police reminded
Em that he did not have to say anything, but carefully omitted to remind him that
if he did say anything, it could be used in evidence against him. To encourage him
to talk, they reassured him that they were not out to ‘trick’ or ‘con’ him and
repeatedly pointed out that he was not under arrest (a circumstance which made
it lawful to omit a caution). Being unaware of the concealed listening devices, Em
assumed that what he said could not be used as evidence and made certain admis-
sions. The High Court was asked, inter alia, whether pursuant to s. 90 of the
Evidence Act 1995 (NSW), it was unfair to receive his admissions because the police
had exploited an erroneous belief which they knew the appellant to have held. The
High Court decided, four to one, that exclusion of the admissions was not
required: the appellant knew his rights, knew he was speaking to detectives inves-
tigating two serious crimes and willingly made the admissions.
He thought that the conversation could not be used against him in
criminal proceedings, but that cannot of itself make it unfair for the
conversation to be received in evidence. The detectives kept secret
from him the fact that the conversation was being recorded, and
hence his freedom to speak was affected in the sense that a factor that
was important to him was kept secret from him. But that is true of
virtually all cases of lawfully authorized secret surveillance. Virtually
all persons who are the subject of that type of surveillance have been
deprived of the opportunity to make an informed choice about
whether or not to exercise their right to silence. (ibid. at [78], per
Gleeson CJ and Heydon J)
Kirby J, dissenting, said that ‘the governing consideration is not whether the detec-
tives deliberately intended to deprive the appellant of his right to a fair trial. It is
whether their conduct had that effect in the proceedings in which the contested
evidence was admitted. I consider that the conduct did have that effect’ (ibid. at
[206]). The police had used various stratagems to foster in the appellant a belief
that the conversation was off-the-record. To record the conversation covertly
under these circumstances transgressed the boundaries of acceptable police
* * *

Carr v The State of Western Australia [2007] HCA 47 has certain factual similarities to
Em v The Queen above, namely, a suspect who does not incriminate himself when
formally interviewed under caution but later incautiously makes substantial
admissions during an informal chat without realising that what he says is being
electronically recorded. What happened was this: while under arrest, as the police
were undertaking routine processing tasks at the lock-up, the appellant volun-
teered something that indicated his involvement in a robbery. The police
exploited the situation by asking further questions without first re-cautioning
him or pointing out that the lock-up was fitted with surveillance video cameras.
The only issue before the High Court was whether s. 570D of the Western
Australian Criminal Code barred receipt into evidence of the videotape containing
his admissions. Under s. 570D, for serious offences, admissions during interview
are inadmissible unless either (1) the admission was recorded on a videotape or (2)
the prosecution has a reasonable excuse for there not being such a videotape
recording, or there were exceptional circumstances which, in the interests of
justice, justify admitting the evidence. All the members of the court, except Kirby
J, held that the informal conversation initiated by the suspect was an ‘interview’
but since it had been videotaped, the prosecution complied with s. 570D. Affir-
mative consent by the defendant to the videotaping was not necessary. The
judgment contains obiter observations about the common law which may interest
lawyers outside Australia:
There is no common law principle that evidence of an admission or
confession to a police officer is inadmissible unless a caution is first
However, failure to administer a caution may result in the discre-
tionary rejection of a confession or admission by a suspect on the
grounds of fairness and public policy.
‘[T]here is no principle of the...

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