The position having regard to the common law
67 Because of the conclusion I have reached with respect to s 89 it is not necessary to resolve the common law position. However, some consideration of the relevant principles may be useful.
68 At common law a person who believes on reasonable grounds that he or she is suspected of being a party to an offence is entitled to remain silent: Petty v The Queen (1991) 173 CLR 95 at 99. Described by the High Court in Petty as a "fundamental right" the courts have been alert to confine forensic activity which might intrude upon or diminish the right. For this reason, in a criminal trial, it cannot be suggested that an accused's exercise of the right to silence provides a basis for inferring a consciousness of guilt. Furthermore, it cannot 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 is unacceptable" Petty p 99.
69 In RPS (2000) 199 CLR 620 at 630 Kirby and Hayne JJ said of the "right to silence":
"That expression is a useful shorthand description of a number of different rules that apply to the criminal law. (their Honours refer to the observation by Lord Mustill in R v Director of Serious Fraud Office: Ex parte Smith [1993] AC 1 at 30-31). But referring without more, to the 'right to silence' is not always a safe basis for reasoning in a particular case; the use of the expression 'right to silence' may obscure the particular rule or principle that is being applied."
70 Lord Mustill described the "right to silence" as a group of disparate immunities. He identified six immunities although he did not suggest his list was exhaustive. The list is:
"(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers and others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial." (emphasis added)
71 In Azzopardi v The Queen (2001) 205 CLR 50 McHugh J discussed the history of the various immunities. Rather than a principle developed by the common law from early times McHugh J identified that "the notion of a right to silence, in the modern sense, was the invention of lawyers in the nineteenth and twentieth centuries" [147].
72 His Honour expressed regret in joining with other members of the Court in Petty having, on reflection, come to the view that "we took the right to silence in the face of police questioning as a given and without citing authority." However his Honour believed that it was too late to turn the clock back [169].
73 It cannot be doubted following Petty and Azzopardi that a person who reasonably believes that he or she is a suspect may remain silent in the face of official questioning. It will be obvious that consistent with that immunity a person is under no obligation to confess to having committed a crime. The question is whether, should they confess to the crime at a later time and, more particularly, give evidence confessing to the crime, the veracity of that confession may be attacked because they availed themselves of the available immunity.
74 One issue which caused difficulty for many years was whether an accused person's silence may be used to attack the credibility of a late explanation which he or she makes of the relevant events as opposed to inferring consciousness of guilt of the offence. Although the distinction was ridiculed by Professor Cross (The Evidence Report: Sense and Nonsense [1973] Criminal Law Review 329 at 332-334) it nevertheless gained judicial recognition until it was finally and firmly rejected by the majority in Petty.
75 Of course, if the accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused's credit, and as consciousness of guilt.
76 There are many cases which illustrate the operation of the common law. In Glennon v The Queen (1993-1994) 179 CLR 1 the Court was concerned with the question of whether a particular misdirection given by the trial judge meant that a new trial should be ordered. The direction held to be wrong was that, in circumstances where, in his defence, the accused had called evidence which was inconsistent with the Crown case, the trial judge had said "in testing the veracity of that defence brought before you in this Court you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves, if this explanation is true, surely the sensible thing was to tell the police about it as soon as possible." The direction was held to impugne the accused's right to remain silent.
77 The position of a witness at a trial has, so far as I am aware, not previously been considered. Perhaps this is not surprising. It would be a rare case indeed where a person would, as did Ms Innes in the present matter, confess to a serious crime when giving evidence at the trial of another person who has been accused of committing that very crime.
78 The attack made by the prosecutor on Ms Innes was directed to and confined to her credit. It was no part of the Crown case that the jury should find that Ms Innes had committed the crime. The Crown case was entirely inconsistent with that proposition. Accordingly, the suggestion that Ms Innes had remained silent when she should have spoken was not made for the purpose of providing a basis for inferring a consciousness that she was guilty of any offence.
79 There can be no doubt that Ms Innes had a right to remain silent. The evidence suggested that, at the least, she may have committed an assault and in the witness box she confessed to a more serious crime. She was under no obligation at any stage to provide an account of the events to anyone in authority. Accordingly, the question raised in the appeal is whether the prosecutor could raise her silence when the purpose was not to suggest that she may have committed a crime but merely to attack her credit. The Crown submits that because the attack was confined to matters of credit the common law right was not infringed.
80 There are echoes in the Crown argument in this case of the distinction between "reliance on silence as evidence against the accused, and reliance on it by way of answer to or comment upon a defence raised for the first time … at the trial" (Reg v Foster (1955) NZLR 1194 at 1200) which was the problem addressed in Petty. Although the majority in Petty acknowledged the theoretical distinction they were not prepared to allow it to operate in the criminal law. The task of separating the two concepts was too difficult.
81 Their Honours said at 100-101:
"In the present case, Priestley JA expressed the view that there is a 'significant distinction' between inferring a consciousness of guilt from silence and denying credibility to a later defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound."
82 The relevance of Ms Innes' evidence in the appellant's trial was, of course, that it provided the appellant with a defence. The criticism of Ms Innes' evidence on the basis that she only provided her account at the trial carried with it a submission that the appellant's defence should not be accepted because he had not previously advanced it. However, his right to remain silent meant that he was under no obligation to provide his account of the events or to bring forward anyone, including Ms Innes, who might explain his innocence.
83 The Crown was asking the jury to accept that the defence case, founded upon Ms Innes' evidence, was a recent invention and for this reason should not be accepted. Because the appellant was under no obligation to inform the authorities of the evidence Ms Innes would give or otherwise disclose his defence, it may be that the course taken by the prosecutor and the direction given by the trial judge were not appropriate. The attack upon her account as a recent invention could be understood as an attack upon the "fundamental right" which the common law afforded to the appellant.
84 Whether it was otherwise open to the Crown to criticise Ms Innes' evidence as not being creditable because she had not previously disclosed it, raises different considerations. However, because disclosure would have meant confessing to the commission of an offence, when the law provides immunity from self incrimination, the better view may be that for this reason also the cross examination and, later, directions, should not have been allowed.