Journal Archive
By Paul Schramm
Detective Superintendent
Officer-in-charge
Major Crime Task Force
South Australia Police
Police Services are continually being challenged to protect the community from crime. In recent years, it has become increasingly apparent that the investigative effectiveness of police is being eroded by some processes within our judicial system that must now be brought into question as to whether they serve the public interest.
The right to silence has many advantages for criminals - and the lawyers who represent them, but its exercise is not in the best interests of the Criminal Justice System (When silence is golden, Police Review, 1991).
It is now timely for Australian jurisdictions to seriously consider introducing legislative reform similar to that which was introduced into England in 1994 with the introduction of section 34 to 39 of the Criminal Justice and Public Order Act. South Australia can lead the way.
Establishing the Justification for Change
The right to silence is a relatively new addition in our legal history and dates back to about 1914. While it can be said that it has served our legal system well as a principle and has ensured that the prosecution is always called on to prove its case beyond reasonable doubt, there is now overwhelming evidence that the use of this basic right could now be termed, in many serious instances at least, as an abuse of the legal process and the rule of law.
There are many examples that can be cited: the person charged with unlawful possession of $20,000 might exercise his right to silence. When the matter is eventually brought to trial, perhaps some six months later, the defendant offers an explanation to the court that is considered satisfactory. Why should the public not expect the defendant to give that explanation when first questioned by police so that the community could be spared the expense of a trial. An innocent person who provides a bona fide explanation should have little to fear in these circumstances. Conversely, a guilty person has everything to gain by exercising his right to silence.
If a person is requested by a police officer to identify who the driver of a vehicle was at a particular time and place, there is a statutory obligation on that person to disclose the information truthfully.
If a person is interviewed by police regarding his presence in the vicinity of an armed holdup, and if he committed the offence, then he is under no obligation to disclose and can exercise his right to silence until he subsequently manufactures some bona fide reasons or alibi. Again, an innocent person having a legitimate reason for a presence at or near the scene, should have nothing to fear by his disclosure.
There are countless other scenarios where it can be argued that the right to silence disproportionately protects the guilty rather than the innocent.
This imbalance is having an enormous social impact and cost implication on the community. Both police and judiciary believe that the introduction of the right to comment on a defendant's silence will bring a dramatic rise in convictions (Silence is Golden, Police Review, 04.11.88). It this is correct, then it is a reasonable inference that scarce investigative resources will not be focussed on innocent people and the trial process will at best be avoided or at least shortened as a consequence of the suspect being obliged to comment or risk adverse comment at trial.
Acquittals of guilty people as a result of a failing in the judicial process has a negative impact on society and every step should be pursued to ensure that the law and the legal system is representative of today's community expectations. At the same time, it is accepted that care needs to be taken to ensure proper safeguards exist to protect those who are innocent (as opposed to those who merely plead not guilty).
Based on available research that primarily focuses on the 1994 English legislation, there is considerable evidence to support the view that the adoption of the (English) amendments has corrected the imbalance between the rights of the guilty, the rights of the victims and an effective judicial system that more accurately reflects community expectations.
Sections 34 to 39 of the Criminal Justice and Public Order Act, 1994
In 1994, the Criminal Justice and Public Order Act, 1994 was enacted and commenced in 1995. The philosophy behind the introduction of the legislation was primarily to restore some identified imbalances that had been developing over a number of years within the judicial system regarding the common law right to silence.
To be affected by the 1994 Act, the accused's silence must take one of four forms (Inferences from Silence, Criminal Law Review, 1995):
(1) failure to give evidence or to answer questions at the trial (s.35(3))
This section states that should a person fail to mention a fact/s relied upon in his defence or any fact which in the circumstances at the time, the accused could have reasonably been expected to mention but failed to, the court may draw such inference from the failure as may appear proper.
(2) failure to mention any fact to police either on being questioned or on being charged (s.34(l));
This section provides for the court to draw inferences from the failure of an accused person, against whom a prima facie case has been established, who at any time before he was charged with the offence, on being questioned under caution, failed to mention any fact relied on in his defence.
(3) failure to account to police for the presence (or in the case of clothing or footwear, the condition) of objects, substances or marks on his person or in his possession or on the premises where he was found (s.36(1),(3));
(4) failure to account to police for his presence at a particular place at around the time that the crime was committed(s.37(l)).
From these four points, the benefits to an effective criminal investigation and just outcome in the public interest should be immediately evident. Put simply, the suspect is encouraged to make an early disclosure that can be tested through the investigative process or, if no such disclosure is made, then he will risk adverse comment at trial.
It should be stressed that the amendments would not suggest that a person would be convicted, or even prosecuted, on the basis of silence alone. Inferences may be drawn from a refusal or failure to answer a question only if there is other prima facie evidence to link the suspect to the offence and the accused is relying on some fact which he failed to mention when questioned by police under circumstances where it was reasonable for a disclosure to be made.
An example is given in McLernon's (Belfast Court, December 1990 CA April 1992) case. The accused was charged with possession of firearms with intent to endanger life. Firearms were found in a house and shortly before the house was searched, the accused was seen with another man driving a car to the house, entering it and driving off.
The other man was forensically linked to the house. After saying nothing in the interview, the accused made a written statement to the police saying that he had driven to the house to deliver a message to the householder and that he was then asked to drive the other man to another house and back again. The trial judge, LJ Kelly, rejected this written statement as a contrived falsehood and went on to draw a most unfavourable inference from the accused's initial refusal to account for the firearms and from his presence at the house, namely that no innocent explanation was available to him.
Although this is a Northern Ireland case, it should be noted that similar provisions to the English legislation existed in Ireland well before the 1994 enactment of the Criminal Justice and Public Order Act.
Under the English legislation, the investigative officer must ensure that certain circumstances are present before availing himself or herself of any of the afore mentioned sections.
The new caution is required to be given:
"You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence".
Though there is a certain equivocality about the new caution, a suspect who listens to it will be very likely to conclude that, if he has a defence to offer, he had better put it forward as soon as he has been told what he is alleged to have done. Equally, the remarks which the officer must have directed to the suspect in order for the prosecution to be able to make use of sections 36 and 37, include a reference to the possibility that adverse inferences will be drawn from his failure or refusal to give an account. Here too, there is a strong encouragement to speak (Two side-effects of sections 34 to 37 of the Criminal Justice and Public Order Act 1994, Criminal Law Review, 1995).
Literature Research
Some research articles which refer to commentaries on the legislation include: "Violent criminals are often able to rob with impunity by relying on their right to silence," writes Harold Acton . why not take a leaf from the law on drink-driving and increase their likelihood of being convicted" (End this golden silence, Police Review, 29.04.88).
"Application of any of the right to silence provisions requires the court to determine questions of fact relating to the fulfilment of the statutory pre-conditions and questions of discretion: what inferences may be drawn and is it, in the circumstances, appropriate to draw them?..." (Inferences from silence, Criminal Law Review, August 1995).
Impact on the Provision of Legal Advice
Clearly, the introduction of this type of legislation is likely to change the role of the legal adviser in the police station (any elsewhere). In circumstances where silence would previously have been advised by most of them, this is no longer the case. The legal adviser would still play an important role when the questioning by police, although still relevant to the offence, falls outside of the ambit of sections 34, 36 and 37 of the Act (Criminal Law Review, 1995). In addition, the legal adviser will always have the role to ensure that appropriate rights and cautions are administered.
Some commentators have held the view that if a legal adviser provides advice to a client to exercise his right to silence, then this would negate any unfavourable inferences being drawn latter in a trial (The Criminal Justice and Public Order Act - The Evidence Provisions, CLR, 1995). In a number of cases, the trial judge has not shared this view stating: "if the failure was objectively unreasonable, it did not in his Lordship's view become reasonable merely because a solicitor gave his client ill-judged advice" (Connolly and McCartney, Belfast Crown Court, 05.06.92). It is unclear whether or not this precedent has been followed in the English cases since 1995.
Progress in Australia
The West Australia police have initiated a research project with the view to make submissions to the "overhaul of the criminal legal system and a WA Law Reform Commission review announced by WA Attorney General, Peter Foss. The controversial proposal to scrap or radically change the right to silence - one of the issues covered by the review has sparked hot debate since the New South Wales and Northern Territory governments mooted the idea last month" (The West Australian, 13,09.97).
Mr. Wayne Martin QC, the WA Law Reform Commission chairman, said there was a "pressing need for matters to be addressed and the inquiry's terms of reference were almost finalised". In the same West Australian media article, WA Attorney General said that removing the right to remain silent would stop "technical tricks" in the system. We won't change the onus of proof but we will say to the accused, you can't be quite so coy about it. At the moment, everything is in the hands of the accused. I can't see why you can't have a system where you try to find out the truth".
The WA Director of Public Prosecution, Mr John McKechnie said the justice system had an important peace keeping role in the community. The State will be diminished if people don't have a realistic access to the courts to resolve dispute - 1 believe they will find other ways, either by mediation or inappropriately by violence" (The West Australian, 03.09.97).
In the Northern Territory, the Chief Minister Mr. Stone has indicated his intention to "review the right to remain silent with a view of introducing a similar system as the 1994 UK Act" (The Australian, 22.08.97).
A number of Law Society and Civil Liberty organisations have already clearly indicated that any interference with the "right to silence" would be vigorously opposed.
Summary
I do not mean to be over-simplistic by saying that the English legislation and subsequent positive research on its effectiveness coupled with the increasing costs and inefficiencies emerging within the Australian legal systems are powerful catalysts for change. 1 am well aware that such changes, particularly to the "rights to silence" strike at the very heart of the concept of being innocent until proven guilty".
However, it is apparent from the research that there was a ground swell of discontent within the English legal system, particularly between 1988 and 1995, that resulted in the legislative reform outlined in this proposal.
If major crime is to be controlled within Australia, then it is imperative that we seriously consider the lessons of other jurisdictions, particularly the United Kingdom. The precursors for ineffective judicial and investigative processes, so evident in England pre 1995, are just as visible in Australia. While similar amendments to the "right to silence" may not be the complete panacea to controlling crime and protecting the community, it would be a significant step forward.
If the community is to have any chance of re-establishing a competitive edge against crime as we move into the next millennium, it is now time to seriously consider appropriate legislative reform similar to that which now exists under the Criminal Justice and Public Order Act 1994 [England] - South Australia can lead the way.[End]