Silence — Evidence of
[4-100] Common law and s 89 Evidence Act 1995
The expression “right to silence” is a useful shorthand description for a number of different rules that apply in the criminal law but may obscure the particular rule or principle that is being applied: RPS v The Queen (2000) 199 CLR 620 at 630 at ; Jones v R  NSWCCA 443. The scope and forms of the common law right are set out in Sanchez v R (2009) 196 A Crim R 472 at –. Section 89 Evidence Act 1995 is narrower in its scope than the common law concerning the right of silence: Sanchez v R at . Section 89 Evidence Act 1995 provides:
In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:
to answer one or more questions, or
to respond to a representation,
put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
Evidence of that kind is not admissible if it can only be used to draw such an inference.
Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.
The Evidence Amendment (Evidence of Silence) Act 2013 inserted s 89A. Section 89A permits unfavourable inferences to be drawn against a defendant who relies at trial upon a fact that was not mentioned at the time of questioning for the offence charged and where the defendant could reasonably have been expected to mention the fact in the circumstances existing at the time. Such inferences can only be drawn where special caution is given to the defendant who has been provided with legal assistance in respect of the caution. The provision only applies to offences carrying a maximum penalty of life imprisonment or a term of imprisonment of five years or more. It does not apply to a defendant under the age of 18 years.
See Special Bulletin 31 — August 2013 for a discussion of s 89A.
[4-110] Suggested direction — right to silence where the accused has exercised the right before trial
[The accused], as you are aware, chose not to answer questions put to [him/her] by the police at the time of [his/her] arrest. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told [the accused] when [he/she] was asked if [he/she] wanted to answer their questions. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.
In this case, it would be quite wrong if [the accused], having listened to what the police said, and having decided to exercise [his/her] right to silence, later found that a jury was using that fact against [him/her]. You must not do that of course. It is important, therefore, that you bear in mind that [the accused’s] silence cannot be used against [him/her] in any way at all. The fact that [he/she] took note of the caution given by the police and chose to remain silent cannot be used against [him/her]. Under our law, an accused person has a right to silence. [see: s 89 Evidence Act 1995 and Petty v The Queen (1991) 173 CLR 95 at 97.]
A right to silence direction should be given at the time evidence is given that an accused has exercised the right and the judge should give the direction to the jury that they are not to draw an adverse inference: Sanchez v R (2009) 196 A Crim R 472 at . There is no rule to the effect that the warning must be repeated in the summing-up but it may well be a desirable and prudent course: Sanchez v R at .
The Crown should not lead evidence or make comments to the effect that, when charged, the defendant made no reply: Petty v The Queen (1991) 173 CLR 95 at 99. Justice Callinan (Gleeson CJ agreeing) said in Graham v The Queen (1998) 195 CLR 606 at  that evidence of an accused’s refusal to answer one or more questions in the course of official questioning might properly be excluded in the exercise of discretion under s 137 Evidence Act 1995: R v Graham (unrep, 02/09/97, NSWCCA) at 9–10.
Where questions asked by the Crown prosecutor elicit the fact that the defendant did not identify matters supporting his or her innocence when questioned by the police, directions must be given which make it clear that no inference adverse to the defendant may be drawn from that fact: R v Anderson  NSWCCA 141 at ; R v Coe  NSWCCA 385 at –; R v Merlino  NSWCCA 104 at –.
It is clear from the use of the phrase “one or more questions” in s 89(1)(a) that a selective refusal to answer some questions and not others falls within the ambit of the rule in s 89. Accordingly, s 89 does not permit an inference of consciousness of guilt to be drawn from selective answering of questions by the defendant: Evidence, ALRC Report 38 (Final Report), 1987 at . See also Attorney-General’s Department, Commonwealth Evidence Law, AGPS Press, Canberra, 1995 at [89.3]: “… selective refusal to answer questions is a refusal to answer ‘one or more questions’, and therefore falls within the rule in s 89(1)”.
The common law authorities on selective silence in the face of police questioning (such as Woon v The Queen (1964) 109 CLR 529) are no longer relevant.
If the defendant seeks to impugn the police investigation, evidence that the police properly cautioned the defendant (and he or she exercised his or her right to silence) is only relevant if the criticisms are actually raised by the defendant: Graham v The Queen at .
For directions regarding the election of an accused not giving evidence or offering an explanation: see Election of accused not to offer explanation at [2-1000].