In Australian law, the accused has the right to remain silent. And in most Australian jurisdictions, judges are not allowed to tell juries that they can draw inferences from silence. In the remaining jurisdictions, judges are only permitted very limited comment on the accused’s silence. Earlier this month, the High Court quashed the conviction of a man because it said the trial judge (in NSW) had over-stepped the mark.
The theory is that the right to silence and the right not to have juries draw inferences from silence are important for liberty and justice. You have to wonder. Outside the court system, people in everyday life learn about things precisely because they ask questions of people and draw inferences if they do not provide answers. It is a typical method of finding the truth by parents with children; teachers with pupils and employers with employees. But when it comes to the criminal law we get very precious.
In the case this month, the accused, charged with a sex offence with his daughter, did not give evidence. The daughter gave direct evidence and the daughter’s mother gave evidence of a partial confession. The trial judge told the jury, “”If you are satisfied that the accused could have given evidence from his own knowledge of the events about which [the mother and daughter] have given evidence, if you are satisfied that it is reasonable, in the circumstances, to expect some denial or contradiction to be forthcoming from the accused . . . you are entitled to conclude from the accused’s election not to deny or contradict that evidence that his evidence would not have assisted him in this trial.”
The judge said the jury could use the absence of the accused’s evidence to more readily accept the evidence of the daughter and mother. The bit about the conclusion that the accused’s evidence would not have assisted him meant that the jury could conclude that silence meant any evidence the accused might have given would be valueless.
The High Court found this direction so unfair that it quashed the conviction.
Well, the judge’s direction may have been dud law, but it makes commonsense to me.
Why shouldn’t a jury be told it can make inferences from a refusal by an accused to give evidence and subject himself to cross-examination? That’s what happens in life.
English law has long feared the inquisitorial method. It has long propagandised about silence and liberty. The picture painted is one of the Spanish Inquisition and burning at the stake. And the myth painted is that the inquisitorial method is one that presumes guilt until the accused proves his innocence. But that view of the inquisitorial method presumes there is no other evidence in the case – “”Confess, recant or be burnt as a witch and a heretic.”
In a modern context the truth is more likely to be arrived at by someone asking the accused: “”Look we have the following evidence, what do you say about that?” And then testing the answers with further questioning, or if there is just a blank denial with no explanation to draw inferences that maybe the other evidence is credible.”
The trouble with our system is that the judge tends to sit back and take very little part in the trial (both criminal and civil). The parties, usually their lawyers, are allowed to run the show.
One of the reasons given for the right to silence is the fear of abuse, but in modern times it is unfounded. Indeed, it is the other way around. The right to silence is abused. The fear is that if there is no right to silence then interrogators will start demanding the answers they want coupled with threats of physical and psychological abuse. But it is not the Middle Ages or a police state. That cannot happen in open court and at the police interrogation stage, we have the means of avoiding it by insisting on video-taped interviews.
It is not red-neckery to insist on asking an accused for an explanation and if it is not forth-coming to draw inferences from that. Silence is not an automatic admission of guilt, but if the matters asked of the accused are within his knowledge and there is no explanation it must at least give rise to the inference that the other evidence is more likely to be sound. And if that were the principle, it would still require the basic rule that the Crown must prove its case beyond a reasonable doubt.
The fundamental injustice of the right to silence, is that it prevents juries from arriving at the truth.
Rather than just allowing the two sides to slug it out, we should have a more active role for judges during the and prosecutors before it. Prosecutors should be involved from the moment major crime occurs, not sit passively waiting for the police brief.
If prosecutors get in earlier, they have a better chance of ensuring that interrogators do not overstep the mark with physical and psychological abuse and a better chance of ensuring police avoid putting on blinkers too early by assuming their suspect is guilty.
Justice cuts both ways. There is a demand for justice on behalf of the community that over-technical evidence law does not allow guilty people to escape.
Blob: And speaking of judges having to allow the two sides to slug it out. The Marsden defamation case rolls on day after day with more than five weeks’ worth of evidence. The costs are horrific, but not just on the parties. Taxpayers fund the court system and this case — centered on what was said on a television current affairs program — is preventing other criminal and personal injuries cases from getting a hearing. The Law Reform Commission has suggested that users pay according to the time they take in court. Hear, hear. There has to be a better and cheaper way.