GENERAL OBSERVATIONS:

The Victorian Council for Civil Liberties (Liberty) adopts and supports the written submissions provided by the Victorian Bar Council, the Criminal Bar Association, and the Victorian Aboriginal Legal Service.

Liberty is concerned that underlying the Reference and the Discussion Paper are two assumptions: first that a suspect is automatically an offender, and secondly, that it is for such a person to prove their innocence. Each of those assumptions cut across fundamental rights which our legal system, and our society confers upon all persons in our community, namely that a person is presumed to be innocent unless and until guilt is established beyond reasonable doubt after a fair hearing according to law, and that the onus of proving guilt rests with the prosecution.

We are also concerned with the proposed methodology of the inquiry. It is sophistry to say one is looking only at the consequences of the exercise of a right, not at its removal. To introduce adverse consequences to a person charged by reason of the exercise of the right to remain silent is to remove the right. It puts silence into the realm of choice or option, not of right.

As the majority of the High Court said in Petty v R, (1991) 173 CLR 95 @ 99, an incident of the right to silence is that no adverse inference can be drawn against an accused person by reason of his failure to answer …questions or to provide…information. To draw such an inference would be to erode the right to silence or to render it valueless.

Whilst dealing with the specific issues raised in chapter 7 of the Issues Paper, Liberty‚s responses to those questions have to be seen in the context of the matters dealt with in 2 and 3.

THE ISSUES

7.1.1 Is the exercise of the right to silence relevant to question of guilt? Only if you assume that all persons charged are guilty, that to exercise the right is to admit guilt, and that only the guilty do not immediately assert their innocence or advance a full explanation for their conduct.

Far from supporting an assertion that the right to silence is exercised only by the guilty, and in order to assist unmeritorious acquittals, the data demonstrates that Victoria has a very low crime rate and a very high conviction rate, and that there is no correlation between the exercise of the right to silence and acquittal. And of course, no data to suggest that of those relatively few who are acquitted, that their acquittals are due to silence, or that they were wrongly acquitted.

There is no support for the assertion that the guilty hide behind silence (and, implicit in that, get away with it). The reasons why people do, or should exercise their right to silence but do not deserve the accusation they have hidden behind it have been widely canvassed. They include the unequal situation of interviewer and suspect, lack of knowledge of the allegations made against them, fear of interrogation, real risk of will being overborne, fear of the unknown, vulnerability, emotion, and communication difficulties.

It is not for the protection of the strong but of the weak and vulnerable that is the measure of whether such a right should exist.

7.1.2 Does the right serve any useful purpose?

Yes. The existing protections are properly characterised as means of ensuring a suspect knows of the right, and is not placed in a position where his or her will is overborne, so a voluntary and informed decision about the exercise of the right. They are not substitutes for the right, and would be empty protections unless the right existed. The protections, described as rights are not always available, in any event. The right to communicate with a legal practitioner, for example does not carry with it a guarantee that such a communication will occur, or if it does, that there will be adequate opportunity for informed advice to be given. The deplorable lack of legal aid makes this "right" illusory at best. And, as most interrogations are commenced outside ordinary business hours, the physical problems of finding a legal practitioner are significantly compounded.

Tape recorded admissions and confessions have gone a long way to overcomingthe problems associated with actual and alleged "verbals". However, if a suspect has the right to silence removed, or suffers adverse consequencesfrom its exercise, all that tape recording achieves is a means of documenting the ultimate response to questioning. It does not overcome the fact the right to remain silent has been in effect removed by the introduction of sanctions. It does not record the efforts to persuade a suspect it will be "better for him if he speaks" or other such incursions into the voluntariness of the recorded account.

7.1.3 Does the right to silence create problems?

There is no evidence it is abused by hardened criminals. Police investigations should be predicated on locating all evidence relevant to the commission of the crime. That includes evidence which points to guilt of a suspect, independently of what the suspect says. To use silence risks lazy or biased investigating, and thereby dramatically increases the risk of miscarriages of justice. It encourages police follow a particular theory or concentrate on a particular suspect, rather than investigate to find all evidence, whether it implicates and exculpates a suspect.

Prosecution difficulties at trial: As Mr Flatman QC, the Director of Public Prosecutions said in the Office of Public Prosecutions submission, the ambush defence is more myth than reality. The alibi provisions, the availability of rebuttal evidence, (perhaps even a greater use of reopening cases by the prosecution in order to lead rebuttal evidence) and better, more effective use of committals and the Crimes (Criminal Trials) Act are all measures which exist, or can be refined to allow the prosecution to know what defence or defences an accused is running.

Given our conviction rates, there is no basis for saying an unreasonably high rate of acquittals exists at all, let alone by reason of ambush defences or trials being hamstrung by an unknown defence.

7.1.4 Are there other methods of dealing with the problems?

Yes. See 7.1.3

7.1.5 Would changing the right to silence have any undesirable effects:

Yes. It introduces a fundamental change to our criminal justice system. Introducing sanctions does remove the right. That is undesirable in our society. There is no demonstrable evil, or harm which suggests a need to remove such a fundamental right.

Any change would indeed introduce uncertainty. Experience demonstrates that.

That impacts on the quality of advice given to suspects, to directions to be given to juries, to the supervision exercised by appellate courts. All persons, whether they be suspects or not, previously convicted or not, guilty of an offence or not, are entitled to know what the law is, and to make their choices according to that knowledge.

Irremediable disadvantage would be caused to particular groups within our community, especially the young, the intellectually disadvantaged, aborigines, people of non english speaking backgrounds, people from backgrounds of political oppression, the vulnerable, the weak, and those in emotional turmoil. We have at least as strong an obligation to those groups as we have to the more able in our society. The undesirable effects would be compounded by the effective lack of legal aid for suspects in custody for questioning. The comparison with the UK position, with its 90million pound budget for legal aid for advice to suspects about to be questioned needs little elaboration. The Pandora's box fear is a real one: it will inevitably lead to lengthening of trials and to diverting attention from main issue i.e. whether the accused is guilty, not why he or she remained silent. Such inquiries will inevitably lead to the need for, and consequent cost of expert evidence.

There is an unacceptable risk of miscarriage of justice. Those who feel they have no choice but to answer may be compelled to answer in circumstances where they cannot do themselves justice, and where such inadequacies in their accounts as are thereby caused are then used to discredit them at trial. Those who decide not to answer are put into a position where the presumption of innocence has been effectively removed from them.

There are particular problems attaching to the big cases, most commonly those where charges are laid after long surveillance operations (usually drug cases), and those which rely on paper trails (usually white collar frauds). In such cases, at the time of arrest or calling in a suspect for questioning, the investigators themselves usually have not had the time or opportunity to put their case together as it will be presented at trial. A suspect should not have to answer questions in those circumstances when the case has not been formulated, and in circumstances where he or she has not had the opportunity to assess the evidence to be put in the questioning.

7.1.6 Would changing right to silence be inconsistent with fundamental principles or community standards of fairness?

Yes. To what end is the change directed? If the evidence is not good enough to convict the accused, then one must ask whether we are prepared to bear the cost of convicting a person on admittedly insufficient evidence simply because he or she remained silent.

Retention of the right to silence accords with informed community standards of fairness.

The misconceptions that guilty people hide behind silence, that those who remain silent get off, and hardened criminals hide behind silence, leads to an unjustified belief amongst some people in the community, it appears, that community standards of fairness are not met by retention of the right to silence, and to a belief we as a society would be better served by removing the right to silence or imposing sanctions for its use.

It is a serious threat to public confidence in the system of administration of justice that such misconceptions should be allowed to exist and continue. The existence of, need for and basis of fundamental principles such as the presumption of innocence, the onus of proof resting with the prosecution and the right to silence, needs to be understood by all members of the community. Information about our criminal justice system, including information about our crime rate, and conviction rate, needs to be more readily available. In order to community standards of fairness to be informed, there is clearly a need for responsible, informed discussion and debate.

7.1.7 Does the Criminal Justice and Public Order Act 1994 (UK) provide an appropriate model for reform?

No. The UK act was introduced to deal with a specific problem, namely terrorism. We do not have such a problem, and have no need of such extreme measures to deal with investigation and prosecution of crime, in the context of a falling crime rate and absence of terrorist crime in Victoria. The UK proposal has to be seen as a package. The incursions into the right to silence were countered by a trade off in relation to provision of legal aid to allow suspects proper, adequate free legal advice before questioning. The cost of implementing UK type reforms would increase legal aid needs to levels which are, in the current climate, not within the government's contemplation. As with terrorism, so with legal aid: the UK has both in significant quantities. We do not. In Victoria, as legal aid levels and exercise of the right to silence are both so low, the UK model does notprovide a feasible or necessary alternative.

7.2.1 Is an accused person‚s failure to testify at trial significant?

It depends on the strength of the prosecution case, and on whether an accused has answered questions as a suspect. The only figures in relation to correlation between standing mute and conviction come from the REAC report. Only 2% of persons standing trial for rape stood mute, and they were convicted. It is not known whether they were silent when questioned by the police.

Whilst no other analysis has been done of the correlation between standing mute and acquittal, it must be borne in mind that it is well nigh impossible to evaluate whether a person who stood mute is "really guilty", despite a finding of not guilty by magistrate or jury.

In any event, there has been no analysis of the correlation between remaining silent at interrogation, and standing mute at trial. The anecdotal evidence from the criminal bar would tend to suggest many of those who stand mute at trial answered questions at interrogation.

7.2.2 - 7.2.5 Liberty has nothing to add to the submissions on these points by the Victorian Bar Council, the Criminal Bar Association, and the Victorian Aboriginal Legal Service.

Felicity Hampel

Acting President

Liberty Victoria

Victorian Council for Civil Liberties

21 August 1998