The Right to Silence

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‘Victoria should adopt reforms enacted in England which allow the jury to draw a strong adverse inference from a suspect’s exercise of the right to silence when questioned by police and permit the trial judge to direct the jury accordingly.’ Critically discuss.

The right to silence is a fundamental right that should not be curtailed in Victoria. The right itself consists of a collection of a complex set of rights, which involve a variety of procedural rules, seen as stemming from the protection against self-incrimination. The right operates in two different circumstances, as both a primary and secondary right, in that it protects an accused when being interviewed by police and also incidentally when at trial. Reforms that allow the jury to draw a strong adverse inference from a suspect’s exercise of the right to silence when questioned by police and permit the trial judge to direct the jury accordingly, should not follow the lead of England, due to the significant differences in the rights and protections established in the legal systems. The right to silence has been a controversial one for sometime and in England and Wales under the Criminal Justice and Public Order Act 1994 the right has been inhibited. The issue is particularly prevalent in Australia currently, with New South Wales in the process of passing legislation to end or at least reduce the right to silence. To weigh the argument on reform in Victoria, firstly it is important to examine the history of the right and its significance in our legal system today. A comparison then must be drawn between Victoria and England, in the way in which the right to silence operates within the differing legal regimes. Finally to conclude, the arguments both for and against such reforms must be analysed.

The phrase ‘right to silence’ is in fact a network of concepts and practices, which operate under the general principal 'that, in the absence of some contrary rule of common law or legislation, all citizens are free to remain silent and to decline to provide the authorities with information.’ The rights are best defined by the House of Lords in R v Director of Serious Fraud Office; ex parte Smith. It is a notion based on the protection against self-incrimination and the presumption of innocence. This right is more than a privilege and is founded on the human right rationale of maintaining a fair trial, which plays an integral part in Australia’s legal system.

The creation of the right to silence can be seen as a result from the practices witnessed in the Star Chamber and High Commission dating back to the sixteenth century. Although Australia has no express constitutional protection for the right to silence, it has been principally preserved by statute and is largely considered by the courts as an important common law right. The right to silence has evolved from its common law inception to also include police questioning, as stated in Petty v The Queen and is expressed in Victoria by virtue of section 89 of the VIC Evidence Act 1995. From this section we can see that the right to silence is both a pre-trial right, which includes the right to remain silent during official questioning and extends to a right at trial, where in criminal proceedings ‘unfavorable inferences’ cannot be drawn from the exercise of the pre-trial right. Section 89 of the Act also establishes that silence includes both selective and complete silence. There are some exceptions to the general right which are, most notably, the right does not apply to corporations which was established in Environmental Protection Authority v Caltex Refining Company Pty Ltd and in cases which rely wholly on circumstantial evidence, as seen in Weissenstiner v The Queen.

In England and Wales the right to silence was first codified in the Judges’ Rules, 1912. Arguably, with the inception of the subsequent Criminal Evidence Act 1984 the rights of defendants were significantly increased. By virtue of the Act a criminal...
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