The Right To Silence And Presumption Of Innocence In Australia

The presumption of innocence is a central tenant of the criminal justice system in a stable democratic society. It assumes innocence and imposes on the Prosecution the momentous burden of proving every element of an offence beyond reasonable doubt.

The presumption of innocence is a fundamental human right contained in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty to which Australia is a signatory. Other rights protected by various subsections of Article 14 of the ICCPR are the right to a fair trial or hearing, the right to representation by Counsel and the right not to compelled to self-incriminate, also known as the right to silence.

It should be noted that some laws reverse the onus of proof onto the defendant for certain elements of an offence. This means that certain elements the offence are taken to have been proven, unless the defence can establish the contrary on the balance of probabilities.

Examples include deemed drug supply offences. Pursuant to section 29 of the Drug Misuse and Trafficking Act 1985 (NSW) you will be presumed to have had drugs in your possession for the purpose of supply if the quantity of drugs found on you to prove on the balance of probabilities that the drugs that the drugs were not for supply, by proving you were in possession of the drugs for some other purpose.

Some laws relax the presumption of innocence by lowering the burden of proof that the prosecution must reach for certain elements of a crime. For example, the charge of having stolen goods in custody, set out in section 527C of the Crimes Act 1900 (NSW) holds that one element of the charge is that the goods are "reasonably suspected of being stolen." Interestingly, this means the Prosecution do not need to prove that the goods were stolen beyond reasonable doubt. Rather the prosecution needs to prove that the goods can be reasonably suspected of being stolen.

Once the prosecution proves those elements, the accused may then engage the subsection (2) defence by satisfying the court on the balance of probabilities that he or she at the time of custody had no reasonable grounds for suspecting that it was stolen or otherwise unlawfully obtained, as outlined in the case of R v Buckett (1995) 79 A Crim R 302. This shifts the onus on to the accused person to prove his or her innocence.

A reversal or relaxation provision does not automatically violate the presumption of innocence. If the law is reasonable in the circumstances, maintains the rights of the accused, and the reversal provision is justified, for example, because it is more practical for the accused to prove a fact rather than for the prosecution to disprove it, the presumption of innocence will not be taken to be violated.

The old English case of Woolmingtonv Director of Public Prosecutions [1935] AC 462 is a landmark case which considered the presumption of innocence in comprehensive detail.

In that case, Mr Reginald Woolmington was 21 years old and was married to 17 year old Violet Kathleen Woolmington in August 1934. Violet gave birth to their child in October 1934. Shortly after, the couple separated, and Violet left the couple's home to live with her mother, Lilian Smith.

In December 1934, Mr Woolmington stole a double barrelled shotgun and cartridges from his employer, Mr Cheeseman. He sawed off the barrel of the shotgun and loaded the gun with the cartridges. He cycled to Ms Smith's house and shot Violet, killing her.

At the first trial was on 23 January 1935 in Taunton before Finlay J and a jury. Mr Woolmington gave evidence and told the jury that he did not intend to kill Violet. Instead, he wanted to "frighten his wife into obedience" by threatening to kill himself if she refused to recommence the relationship. Mr Woolmington said that he attempted to show Violet the gun and threaten to kill himself, but accidentally discharged it, killing her.

The jury failed to agree on a verdict and were discharged.

At the second trial of this case in Bristol the Judge gave the jury the following directions on the law of homicide and the burden of proof in summing up:

"... If you come to the conclusion that [Violet Woolmington] died in consequence of injuries from the gun which [Mr Woolmington] was carrying, you are put by the law of this country into this position: The killing of a human being is homicide, however he may be killed, and all homicide is presumed to be malicious and murder, unless the contrary appears from circumstances of alleviation, excuse, or justification. 'In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him, ...That has been the law of this country for all time since we had law. Once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy a jury that what happened was something less, something which might be alleviated, something which might be reduced to a charge of manslaughter, or was something which was accidental, or was something which could be justified... The Crown has got to satisfy you that this woman, Violet Woolmington, died at the prisoner's hands. They must satisfy you of that beyond any reasonable doubt. If they satisfy you of that, then he has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case, which alleviate the crime so that it is only manslaughter."

The jury convicted Mr Woolmington, and he was subsequently sentenced to death.

Mr Woolmington appealed to the Court of Criminal Appeal, arguing that the Judge had misdirected the jury. The Court of Criminal Appeal dismissed the appeal, referring to several well-known texts written by prominent legal of the time, all of which sought to define the law of homicide.

The Attorney General intervened, certifying the decision of the Court of Appeal stating that it involved a point of law which was of exceptional public importance and it was desirable in the public interest that a further appeal should be brought. The appeal was heard before the House of Lords.

It was in the House of Lords that Viscount Sankey gave his notable judgement on the presumption of innocence being the golden thread in the English Criminal Law. The famous passage is extracted below:

"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

The conviction was quashed. Mr Woolmington was acquitted and released just three days before his scheduled execution. He was still aged 21 at the time of his release.

Presumption of Innocence Violated: Right to Silence Laws

The High Court of Australia case of GBF v The Queen [2020] HCA 40 is a more recent example of a case where the a judge's directions to a jury was found to violate the presumption of innocence.

In that case, the defendant was charged with six sexual offences, all of which were alleged to have been committed against his half-sister between 1 December 2012 and 24 August 2013. In this time period, the defendant was aged 33 and 34 years of age, and the complainant was aged 13 and 14 years of age. The prosecution's case was wholly dependent on acceptance of the complainant's testimony. The defendant did not give evidence and did not call any defence witnesses.

At first, the trial judge correctly directed the jury on the right to silence, the presumption of innocence, and the burden of proof.

The trial judge then reminded the jury that given the complainant gave evidence, and there was no evidence given or called by the defendant to challenge the complainant's account. Specifically, the judge said:

"But, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier."

The defendant was convicted of three counts of rape, and two counts of indecent treatment of a child under the age of 16 years. The defendant was acquitted on a further two counts of rape. On the final count of rape, the jury retuned alternative verdicts of guilty to the charge of indecent treatment of a child under 16 years of age. The defendant was sentenced to nine years imprisonment.

The defendant appealed to the Court of Appeal of the Supreme Court of Queensland, on the ground that the trial Judge had misdirected the jury.

The Court of Appeal accepted that the particular direction should not have been given and was a breach of the right to silence and the presumption of innocence. The Court of Appeal, however, dismissed the appeal on the basis that there was no real possibility that the jury misunderstood the earlier correct directions given by the judge to the jury, and there was no real possibility that the defendant had been deprived of a real chance of acquittal.

The Court of Appeal held the impugned statement had not resulted in a miscarriage of justice, taking into account that neither the Prosecution of defence had applied for a redirection at trial.

The defendant appealed to the High Court of Australia, arguing that the impugned statement invited the jury to infer his guilt from his exercise of this right to silence.

The High Court upheld the appeal, accepting that the impugned statement proceeded on a view that the accused may be expected to give evidence. This is contrary to the accusatorial system of criminal justice which places the onus on the Prosecution to prove the allegation brought by the State.

Right to Silence Laws

There is a general common law right to silence and the protection against self-incrimination or adverse inferences reflected in the case of Petty v The Queen (1991) 173 CLR 95.

The case of Azzopardi v The Queen [2001] HCA 25 is a High Court decision that said, an accused not giving evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill any gaps in the prosecution case; it cannot be used as a makeweight in considering whether the prosecution has proved the accusation beyond reasonable doubt

Section 89 of the Evidence Act 1995 is a more restrictive right to silence legislated which only applies during "official questioning" by a police officer. It states that unfavourable inferences to a party are not to be drawn from evidence that the party or another person failed or refused to answer question(s) or 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.

Other legislation consistent with the right to silence; presumption of innocence and the privilege against self-incrimination includes the following:

• Section 20 of the Evidence Act 1995 (NSW) involves the right to silence applicable at trial.
• Section 155 of the Criminal Procedure Act consistent with the presumption of innocence. This effectively states that silence by an accused person has the same effect as a not guilty plea in circumstances there is a refusal to plead.
• Section 17 of the Evidence Act 1995 (NSW) states that an accused person is not competent to give evidence as a prosecution witness and not compellable to give evidence for or against an associated defendant (co-accused) unless tried separately.
• Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) outlines the safeguards applicable that police must comply with prior to and after an arrest.

Exceptions to the Right to Silence in Australia

Noting that the right to silence is a fundamental and essential legal right in Australia, the following are some of the exceptions to the right to silence- where the right to silence does not apply in the usual way.

• Section 150 Criminal Procedure Act applies in criminal charges dealt on indictment where the matter is committed to the District Court. Any alibi defence intended to be relied upon by the defence must be disclosed to the prosecution in advance.
• Section 151 of the Criminal Procedure Act applies in criminal proceedings on a trial for murder which requires the defence to disclose to the prosecution in advance any reliance on the partial defence of substantial impairment.
• The Local Court Practice Note Crim 1 applies to criminal matters dealt with in the local court which provides a framework for general case management to finalise matters in an efficient timely manner. It requires amongst other things for the defence to disclose details such as the number of defence witnesses intended to be called.
• Section 141 of the Criminal Procedure Act impose pre-trial disclosure obligations on the defence and prosecution. section 143 of the same legislation outlines the extent of the defence's disclosure obligations.
• Section 89A of the Evidence Act abrogates to an extent and in certain circumstances a suspected person's right to silence. This applies to evidence of silence in criminal proceedings for serious indictable offences. It states that in criminal proceedings for a serious indictable offence an unfavourable inference may be drawn as appears proper from evidence that during official questioning, in relation to the offence, the defendant failed or refused to mention a fact, that he or she could reasonably have been expected to mention in the circumstances existing at the time and that is relied on in his or her defence in that proceedings. This applies where a special caution was given by an investigating official who at the time giving the caution has reasonable cause to suspect that the defendant had committed the serious indictable offence, and the special caution was given before the refusal or failure to mention the fact, and the special caution was given in the presence of an Australia legal practitioner who was acting for the defendant at that time, and the defendant had before refusal or failure to mention the fact, been allowed a reasonable opportunity to consult with that lawyer, in the absence of investigating official, about the general nature and effect of a special caution.
• Other special bodies override the privilege against self-incrimination, including Coronial Inquests, Royal Commissions, Independent Commission Against Corruption, Police Integrity Commission, Crime Commission and Special Commissions of Inquiry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.