USQ Law Society Law Review
Deacon Johnston
Winter 2022
ENCROACHING ON THE RIGHT TO SILENCE: THE PERNICIOUS EFFECT OF UNFAVOURABLE INFERENCE LEGISLATION DEACON JOHNSTON1 I INTRODUCTION The right to silence has obtained pop culture status significant enough to influence jurisprudence on the topic.2 It flows from ‘the privilege against self-incrimination, and the broader notions of the rule of law espoused by the liberal tradition’.3 A foundational assumption of this privilege is that the prosecution must prove a person—otherwise presumed innocent—guilty of any charge laid.4 At common law, no adverse inferences may be drawn from pre-trial silence.5 This article will first explain the law on pre-trial silence and adverse inferences in Australia, including the divergent path taken in New South Wales (‘NSW’). It will consider issues surrounding this and similar legislation, including inherent dangers, inefficacy, and complexities impacting efficiency and practicality. Lastly, the most pernicious aspect of this legislation will be examined: its effect on legal advice. This essay will argue that adverse inference legislation is impractical, potentially dangerous, and ineffective. It presents fundamental challenges to legal rights, and, accordingly, other jurisdictions should refrain from enacting similar legislation.
II
PRE-TRIAL SILENCE AND ADVERSE INFERENCES IN AUSTRALIA
Petty is the ‘most emphatic endorsement’ of the pre-trial right to silence in Australian jurisprudence.6 During police interviews, two accused each inculpated the other and downplayed their own involvement in a homicide. At trial, each accused proffered new, yet similar, accounts of the circumstances, for the first-time arguing accident and raising related
1
This paper was originally submitted as assessment for the subject LAW3321 Evidence Law.
Ronald Steiner, Rebecca Bauer and Rohit Talway, ‘The Rise and Fall of the Miranda Warnings in Popular Culture’ (2011) 59(2) Cleveland State Law Review 219, 220, citing Dickerson v United States, 530 US 428, 437 (2000). 2
Barbara Ann Hocking and Laura Leigh Manville, ‘What of the Right to Silence: Still Supporting the Presumption of Innocence, or a Growing Legal Fiction?’ (2001) 1(1) Macquarie Law Journal 63, 65. 3
4
Ibid 64-6.
5
Petty v The Queen (1991) 173 CLR 95, 99 (Mason CJ, Deane, Toohey and McHugh JJ) (‘Petty’).
Oscar Roos, ‘The Trouble With Woon: The Selective Answering of Police Questions and the Right to Pre-Trial Silence’ (2006) 3(1) University of New England Law Journal 1, 15, citing Petty v The Queen (1991) 173 CLR 95. 6
119
