2. The accused must have had an opportunity to give an explanation in circumstances where, if he is innocent, an explanation might reasonably be expected. Those circumstances do not encompass the situation where an accused, having been duly cautioned, declines to answer questions by the police in the exercise of his right to do so. On the other hand, the fact that the caution was given or that the right to silence was asserted or exercised does not itself provide an explanation of the possession of recently stolen goods or necessarily negate the existence of circumstances of unexplained possession of such goods where such circumstances otherwise exist.

3. In each of the two cases in which the accused now seeks special leave to appeal, he declined to answer questions and evidence of his refusal to answer was admitted without objection. But in each case the accused was given an opportunity, before he was cautioned by the police, to give an explanation of his possession of the property in question and, indeed, he purported to do so. In addition, at each trial the accused purported to give an explanation in an unsworn statement from the dock.

4. The learned trial judge's summing up in these cases contained a direction that an accused's refusal to answer questions put to him by a police officer, after a warning that he was not bound to answer any questions, could not be used in any way to be an admission of guilt, to demonstrate a consciousness of guilt or otherwise to strengthen the Crown case. He also directed the jury that it was open to them to convict an accused of theft or dishonestly handling if they were satisfied that the accused was in possession of the property, that it was recently stolen, and that he has given no explanation of his possession or has given a lying explanation. His Honour said that the word "explanation":

"... includes everything the accused has said about

If you accept his explanation, then the doctrine of

5. We do not think that the directions given by the learned trial judge to the jury that they might infer guilt from the failure of the accused to give a credible explanation would have led them to draw any adverse inference from the refusal of the accused to answer police questions after the caution had been given. It would have been better had the trial judge spoken in terms of the unexplained fact of possession rather than the failure of the accused to give an explanation, but in each trial, a separate and clear direction was given that the accused had a right to refuse to answer any questions asked by the police and that no adverse inference was to be drawn against him by reason of his exercise of that right. That direction was given in recognition of the right of an accused person to remain silent both before and (by not giving evidence) at his trial. The assertion or exercise of that right does not give rise to an inference of guilt. Indeed, the fact of insistence on the right in the face of questioning does not, of itself and standing alone, have any probative force at all against an accused.

6. Reading the directions as a whole, we do not think that in these circumstances the jury would have been misled by those passages about which the accused now complains. That being so, the conclusion reached by the Full Court of the Supreme Court of Victoria was correct and these cases do not offer a satisfactory vehicle for a fuller examination of the principles involved.