DPP v Butay [2001] VSC 346

5. I take those points in turn. First, the law is that generally speaking, such recalcitrance by an accused person is not to be referred to. That rule has been stated both by the High Court and by the Court of Appeal of this State: see respectively Petty v R [1991] HCA 34; (1991) 173 C.L.R. 95 (in particular at 99 in the judgment of Mason C.J. and Deane, Toohey and McHugh JJ. and also at 127 per Gaudron J.) and R v Hartwick (Court of Appeal, Victoria, unreported, 20 December 1995 per Callaway J.A. at 5-6 and in whose reasons Charles J.A. and Vincent A.J.A. agreed). The foundation, I think, of the rule is the judgment of Barwick C.J. (in whose reasons the other Justices agreed) in R v Ireland [1970] HCA 21; (1971) 126 C.L.R. 321 at 331, where His Honour stated:

"His failure to answer questions thereafter could not be accounted as an admission. In those circumstances the fact that he was asked and made no answer was not relevant: it would not be probative of any relevant fact or circumstance. It was therefore not admissible."

In Petty v R at 99 Mason, C.J. and Deane, Toohey and McHugh, JJ. stated:

"That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable." (underlining added).

With every respect, I do not understand that evidence an accused exercised the right of silence, coupled with a judicial direction, could "provide a basis for inferring a consciousness of guilt."

12. In Hartwick, Callaway J.A., having cited the above passage from Petty, proceeded:

"Ms Douglas submitted that the sentence I have underlined in the passage quoted from the joint judgment is limited to the case of such evidence being led for the purpose of demonstrating a consciousness of guilt or alternately without explanation. It is true that the sentence should be read in context, but I do not think it can be limited in that way. There may well be circumstances in which such evidence led, without objection, because counsel for the accused believes that it is to his or her client's advantage. See, for example, R v Hartwick (No.1), (Full Court, unreported, 5 June 1995) at p.15. Such evidence might also be proper if the defence case involved an imputation that the accused had not been given an opportunity to respond to the allegations made. In the present case the judge admitted the evidence because it might be "more prejudicial to the accused to let the jury speculate about such matters than lead the evidence." With respect, it is not for His Honour to make such a judgment in the light of counsel's objection, nor is anything said by the High Court in Weissensteiner v R [1993] HCA 65; (1993) 178 C.L.R. 217 detract any observation in Petty's case to which a reference has been made. See especially pp.228, 231 and 244."

The matter has also been touched upon, although in a non-jury context, by the Court of Appeal in New South Wales in Yisrael v District Court of New South Wales & Anor (1996) 87 A.Crim.R. 63, particularly at 66-67 per Meagher J.A. and at 75 per Sheller J.A. (Meagher J.A. in dissent but on other points). The matter has been the subject of some helpful commentary, notably in (1998) 22 Criminal Law Journal 17 by Ms E. Stone: "Calling a spade a spade: the embarrassing truth about the right to silence" where Petty and other authorities are reviewed.

17. In essence, because the silence of an accused is not "probative of any relevant fact or circumstance" (the basal reason of Barwick C.J. in Ireland at 331) it should not be referred to. If it becomes probative - for example, by "an imputation that the accused had not been given an opportunity to respond" (per Callaway J.A. in Hartwick at 6) - it may be referred to or adduced.

20. The rights and interests of the respective parties are what the courts have, very properly if I may say so, focused upon.

23. However, there is also a significant interest in juries not being unduly burdened, or distracted, in their function of giving a true verdict according to the evidence. As a matter of general law, it seems to me that a jury would be assisted, if it does not undermine or abrogate an accused's fundamental rights, to be informed that the police had asked an accused questions and the accused had, properly having been informed of the right not to answer, exercised that right. First, I do not consider that such information would undermine the right of silence. In my experience, juries are responsible and reasonable entities, and I do not believe that a properly instructed jury would use a right of a person, clearly stated, against a person. To do so would be perverse, unfair and, in my view, contrary to the character of juries. Any decent citizen would readily understand that if a person is rightly told that the person has a right it would be cynical in the extreme and unfair and wrong for a later tribunal to use the exercise of the right against the person. It would also be a trap by the system of justice against a person. I do not believe a jury would so act. Thus I consider the perceived risk to an accused person does not exist, when properly analysed.

26. Second, I consider that the present practice does not assist juries. Plainly, a jury will notice that an accused apparently said nothing to investigating police. What is the jury to make of that silence? That the accused was given no opportunity by investigating police to speak? If so, why? Or that the accused chose not to speak? If so, why? These questions inevitably will occur to jurors from the apparent silence of the accused to police. Under Petty and Hartwick, no judicial guidance is provided to juries as to how to deal with these inevitable questions, other than the global direction (unrelated in terms to the matter of the accused's apparent silence) not to

speculate. Jurors are expected, without any specific judicial direction or guidance, themselves to apply that global direction to the immediate matter at hand (the accused's apparent silence to investigation police).

30. With every respect, I consider that that situation is unhelpful to juries. It does not assist jurors in fulfilling their sworn or affirmed duty to give a true verdict according to the evidence. It is an added (and unnecessary) burden and distraction upon jurors fulfilling their oath or affirmation. I consider the elicitation in evidence the right of silence, and a judicial direction that (and why) that silence cannot be used against an accused, would assist the administration of justice. That is, it would assist jurors to fulfil their oath or affirmation and, once the juror's mind is informed by judicial direction, it would not harm the accused's interests.

33. In any event, the law is as it is stated in Petty and Hartwick and I shall apply the law loyally and fully.

36. The second point relied upon by Mr Bourke is that the breach of the law in Mr Dickson's opening is not a mere academic or technical matter but is of forensic significance to his client. Mr Bourke has said to me that he does not want this issue to be raised. The learned senior prosecutor not only referred to the exercise by the accused of his right of silence to police questions in the Homicide interview of 25 June 2000 but he developed the matter at some length (p.31 line 24 to p.32 line 15) including that the accused answered each question with the words "no comment".

39. Accordingly, I consider that a significant error of law has occurred in this trial. It cannot be remedied by my telling the jury to put out of their minds that which they, as I have said, are likely to be thinking about anyway. The only resolution is to discharge this jury without verdict which I shall now do. That course is necessitated by a high degree of need (not the tautological 'high degree of necessity') thereby arising.