The Right to Silence at Trial: A Critique and a Call for a New approach

Abstract

This thesis addresses two questions: what is the current law on the right of an accused to remain silent at trial? And, what is the impact of the right to silence on the participants in criminal trials? The right to silence at trial was not introduced until the mid-late eighteenth century, and was not entrenched until the late nineteenth century. Today, it is accepted as a fundamental principle underpinning the common law adversarial criminal trial. The thesis argues that the right to silence is treated as fundamental and inviolate when there is no justification for doing so. When examined closely, it is exposed as a doctrine or rule which lacks consistency, clarity and predictability. The thesis begins with a detailed analysis of the Australian appellate court decisions, and reveals a trend towards an absolute right to silence. Under the current law, the accused is not expected to give evidence at trial, except in rare and exceptional circumstances where there are facts additional to those in the Crown case which are known only to the accused. The move to an absolute right to silence is interrogated within contexts where the courts are failing to address the numerous exceptions to the principle. Other influences on the right to silence are examined, including legislation facilitating scientific proof, common law doctrines such as silence in the face of accusation, reverse onus provisions in legislation, and compulsory defence disclosure. The thesis reveals the gaps and incongruities in the way the right to silence is understood, how it is practiced, and its effect on a ‘fair trial,’ not just for the accused, but also for the accuser, and the community at large. Unlike the current literature, the thesis deconstructs the right to silence, and seeks to avoid the current slippage between the right to silence on the one hand, and the presumption of innocence, the privilege against self-incrimination, and the burden of proof on the other. The right to silence is re-conceptualised as a choice with consequences, which may or may not be unfavourable to the accused, an issue which it is argued, is for the jury to determine in each case. The thesis probes the appellate court decisions and commentary by academics and legal practitioners on the reasons for the continuing existence of the right to silence and its importance in the criminal trial. The thesis concludes that the reasons offered are fractured and inadequate.