4.14 - Silence1
4.14.1.1 - Bench Notes: Silence in Response to People
in Authority
Change and Continuity
The common law prohibition on drawing adverse inferences against the
accused by reason of his or her failure to answer questions asked by a
person in authority has been largely reflected in Evidence Act 2008 s89.
The common law prohibition has not been abrogated and continues to
apply.
Both s89 and the common law prohibit inferences of consciousness of guilt
and inferences relevant to the accused’s credibility being drawn from pretrial silence. They also both prohibit adverse inferences being drawn from
selective silence.
Adverse inferences also cannot be drawn from the failure to raise a
defence at an earlier time. However, there may be other consequences if
the accused fails to comply with the pre-trial disclosure requirements
contained in the Criminal Procedure Act 2009.
The common law obligations about when to direct the jury about the
accused’s pre-trial silence, and the content of the direction, remain in
place.
Scope
1.
These Notes address the directions which may be required when,
prior to trial, a person exercises the right to remain silent when
questioned or asked to supply information by a person in authority.
2.
Similar issues are addressed in the following Bench Notes:

Silence in Response to Equal Parties;

Defence Failure to Call Witnesses.
Right to Remain Silent When Questioned by Authorities
3.
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The right to remain silent when questioned or asked to supply
information by a person in authority is a fundamental rule of the
This document was last updated on 29 June 2015.
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common law (Petty v R (1991) 173 CLR 95).
4.
This aspect of the right of silence is designed to prevent oppression
by the police or other authorities of the State (Petty v R (1991) 173
CLR 95 per Brennan J; Harman v The State of Western Australia
[2004] WASCA 230).
No Adverse Inference May be Drawn
5.
At common law it has been held that one consequence of this right is
that no adverse inference can be drawn against the accused by
reason of his or her failure to answer questions asked by a person in
authority, or to supply information to such a person. To draw such an
inference would be to erode the right or to render it valueless (Petty
v R (1991) 173 CLR 95. See also Woon v R (1964) 109 CLR 529; R v
McNamara [1987] VR 855).
6.
This aspect of the right of silence has been given legislative form by
Evidence Act 2008 s89 (R v Tang (2000) 113 A Crim R 393).
However, the common law continues to apply (R v Anderson [2002]
NSWCCA 141; R v Stavrinos (2003) 140 A Crim R 594).
7.
Although there are some minor differences in scope and content, s89
and the common law largely overlap (R v Coe [2002] NSWCCA 385;
R v Matthews NSW CCA 28/5/96).
8.
The right to silence has been restricted in some ways by the Criminal
Procedure Act 2009. See “Pre-Trial Disclosure Requirements” below
for further information.
Scope of the Prohibition Against Adverse Inferences
9.
The statutory prohibition on drawing adverse inferences from a
person’s pre-trial silence applies to criminal proceedings in which:

A party or other person failed or refused to answer one or more
questions, or to respond to a representation; and

The question or representation was put or made by an
investigating official2 who at that time was performing functions
in connection with the investigation of the commission, or
possible commission, of an offence (Evidence Act 2008 s89(1)).
10. By comparison, the equivalent common law prohibition applies
whenever a person is suspected, or believes on reasonable grounds
An investigating official is defined in the Dictionary to the Act to be either a
police officer, or a person appointed by or under an Australian law whose
functions include the prevention or investigation of offences. People who are
engaged in covert investigations under the orders of a superior are excluded.
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that he or she is suspected, of having been a party to an offence
(Petty v R (1991) 173 CLR 95).
11. As s89 prohibits unfavourable inferences being drawn against a party
where any person fails or refuses to answer a question asked by a
relevant party, in some circumstances it can prevent an adverse
inference from being drawn against a witness other than the accused
(e.g., a defence witness who gave a statement to the police, but
failed to mention something later raised in court) (see, e.g., Jones v
R [2005] NSWCCA 443).
12. As there is significant overlap between the scope of s89 and the
common law, in most cases where a person exercises his or her pretrial right of silence, adverse inferences will be prohibited on both
grounds.
Content of the Prohibition Against Adverse Inferences
13. There are two main consequences of the pre-trial right to silence:
i)
Adverse inferences may not be drawn from the failure to answer
questions asked by people in authority; and
ii)
Adverse inferences may not be drawn from previous silence
about a defence raised at trial (Petty v R (1991) 173 CLR 95).
Failure to Answer Questions
14. Evidence Act 2008 s89(1) provides that no unfavourable inferences
can be drawn against a party from a person’s failure or refusal to
answer questions put by an investigating official, or to respond to the
official’s representations.
15. Section 89 prohibits all unfavourable inferences, including inferences
of consciousness of guilt and inferences relevant to a party’s
credibility (Evidence Act 2008 s89(4)). This reflects the common law
(see, e.g., Petty v R (1991) 173 CLR 95).
Failure to Raise a Defence
16. Previous silence about a defence raised at the trial cannot provide a
basis for inferring that the defence is a new invention or is rendered
suspect or unacceptable (Petty v R (1991) 173 CLR 95; R v Stavrinos
(2003) 140 A Crim R 594; Sanchez v R [2009] NSWCCA 171).3
This inference is prohibited by the common law. While it may also be prohibited
by s89, this issue has not yet been decided by an appellate court (see R v Coe
[2002] NSWCCA 385).
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17. This stems from the rule that it is never for an accused person to
prove his or her innocence. To allow that an explanation might be
judged false because it was not put forward before trial is, in effect,
to allow the burden of proving guilt to be more readily discharged
because the accused did not signal the precise basis of his or her
innocence (Petty v R (1991) 173 CLR 95).4
18. The prohibition against drawing an inference of recent invention
applies even if:

The accused bears an evidential burden in relation to the
defence;

The accused was not specifically asked about the matter which
is the subject of the defence, or was asked no questions at all;

The accused answered questions about other matters;

The defence was not raised at the committal proceedings; or

The accused only raised the facts giving rise to the defence
after the close of the prosecution case (Petty v R (1991) 173
CLR 95; Sanchez v R [2009] NSWCCA 171).
Previous Inconsistent Accounts
19. While Evidence Act 2008 s89 and the common law both prohibit
adverse inferences being drawn from silence, they do not prevent
adverse inferences being drawn in cases where the accused has
previously told a contrary story. The jury is entitled to draw whatever
inferences are reasonably open from the responses actually made by
the accused (Petty v R (1991) 173 CLR 95; R v Gonzales-Betes
[2001] NSWCCA 226; Sanchez v R [2009] NSWCCA 171).
20. Thus, where the accused chooses to break his or her silence and give
an explanation before trial that is inconsistent with the account given
in evidence, the inconsistency may be used by the prosecution, both
to attack the accused’s credit and as demonstrating a consciousness
of guilt (Jones v R [2005] NSWCCA 443).
21. Similarly, where the accused gives an account which is inconsistent
with the case presented at trial, and fails to withdraw that account
until the time of trial, evidence of the accused’s failure to withdraw
the account is relevant and admissible. It can constitute a denial by
In R v Merlino [2004] NSWCCA 104 the NSW Court of Criminal Appeal seems to
have suggested that there may be some circumstances in which an adverse
inference can be drawn from the accused’s failure to raise a defence at the point
of arrest. However, this decision seems difficult to reconcile with the High Court’s
decision in Petty v R (1991) 173 CLR 95.
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conduct of the defence raised at trial (Petty v R (1991) 173 CLR 95).
See also Bench Notes: Previous Representations (Hearsay, Recent
Complaint and Prior Statements).
Selective Silence
22. No adverse inference can be drawn from the fact that the accused
answered some questions but did not answer others (R v McNamara
[1987] VR 855; R v Towers NSW CCA 7/6/93; Yisrael v District Court
of New South Wales (1996) 87 A Crim R 63; R v Barrett (2007) 16
VR 240. See also Evidence Act 2008 s89(1)(a)).
23. By answering some questions, the accused does not waive his or her
right of silence. He or she does not assume any obligation to provide
information to the police (R v Stavrinos (2003) 140 A Crim R 594).
24. The accused’s selectiveness in answering questions therefore cannot
demonstrate a consciousness of guilt (R v McNamara [1987] VR 855;
R v Towers NSW CCA 7/6/93; Yisrael v District Court of New South
Wales (1996) 87 A Crim R 63; R v Barrett (2007) 16 VR 240).
25. However, the answers the accused gives may be used, and can be
considered as a whole, in the context of his or her refusal to answer
other questions (Woon v R (1964) 109 CLR 529; Yisrael v District
Court of New South Wales (1996) 87 A Crim R 63; R v Towers NSW
CCA 7/6/93).
26. The jury can draw adverse inferences from the answers that were
given, but cannot draw any inferences from the questions that were
not answered (R v Barrett (2007) 16 VR 240).
27. As the accused is under no obligation to give notice of his or her
defence prior to trial, a failure to proffer an explanation cannot be
relied upon as a basis for an inference of guilt or as adversely
affecting the credibility of a defence (R v Makin (1995) 120 FLR 9).
28. However, where the accused gives a detailed account of events to
the police, the jury may be able to infer a consciousness of guilt from
the conscious omission of certain details (R v Cuenco (2007) 16 VR
118; R v Russo [2004] VSCA 206; De Marco 26/6/1997 CA Vic).5 See
Consciousness of Guilt: Bench Notes for further information.
Pre-Trial Disclosure Requirements
29. In Victoria, some limitations have been placed on the right of silence
As long as this inference is drawn from the accused’s conscious omission of
details from his or her account, rather than his or her failure to answer a question
or respond to a representation, it appears not to breach Evidence Act 2008 s89.
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by the pre-trial disclosure requirements of Part 5.5 of the Criminal
Procedure Act 2009. For example:

If the prosecution has served on the accused a summary of its
opening, the accused must serve on the prosecution (and file in
court) a response to the summary, which identifies the acts,
facts, matters and circumstances with which issue is taken and
the basis on which issue is taken (s183);

If the prosecution has served on the accused a notice of pretrial admissions, the accused must serve on the prosecution
(and file in court) a response to the notice, which indicates
which evidence set out in the notice is agreed and which
evidence is in issue, and the basis on which issue is taken
(s183);

If the accused intends to call a person as an expert witness at
the trial, he or she must file a copy of the witness’s statement
with the court, and serve a copy on the prosecution, within a
certain timeframe (s189);

If the accused intends to give or adduce evidence of an alibi, he
or she must notify the DPP of that fact within a certain
timeframe (s190).
30. If the accused fails to comply with the pre-trial disclosure
requirements contained in the Criminal Procedure Act 2009:
i)
He or she may be prevented from giving or calling certain
evidence (see, e.g., ss190, 233);
ii)
His or her response to the prosecution’s opening address may
be restricted (s225(2)); or
iii)
The judge or a party may comment on the breach (s237).6
31. Any comment made by the judge must be relevant, permitted by
another Act or a rule of law and must not be unfairly prejudicial
(Criminal Procedure Act 2009 s237).
When Can Evidence of Silence Be Admitted?
32. Evidence that a person failed to respond to a person in authority, or
failed to raise some defence or matter of explanation, will generally
be inadmissible. Such evidence is usually not probative of any
relevant fact or circumstance (in light of the fact that the accused
See Chapter 5 of the Victorian Criminal Proceedings Manual for more
information on the operation of pre-trial processes and the consequences of noncompliance.
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has a right to remain silent, and no adverse inferences can be drawn
from his or her exercise of that right) (Petty v R (1991) 173 CLR 95;
Bruce v R (1987) 74 ALR 219; R v Ireland (1970) 126 CLR 321; R v
McNamara [1987] VR 855. See also Evidence Act 2008 ss56, 89(2)).
33. However, evidence that the accused exercised the right of silence
can be admitted if there is a legitimate purpose for admitting the
evidence (R v Reeves (1992) 29 NSWLR 109; R v Astill NSW CCA
8/7/92; R v Coyne [1996] 1 Qd R 512).
34. For example, evidence that the police put the prosecution’s version
of the facts to the accused, and gave him or her the opportunity to
answer them, may be admitted to meet an anticipated criticism of
the fairness of the investigating police officers’ conduct (R v Reeves
(1992) 29 NSWLR 109; R v Hartwick Vic CCA 20/12/95; Wilson v
County Court of Victoria (2006) 14 VR 461).
35. In such circumstances, the accused’s silence can only be used to
counter the allegation of inadequate investigation. It cannot be used
to demonstrate a consciousness of guilt or as the basis of a claim of
recent invention (Wilson v County Court of Victoria (2006) 14 VR
461).
36. Evidence of the accused’s pre-trial silence may also be admitted
where the failure or refusal to answer a question is a fact in issue in
the proceeding (e.g., where it is a criminal offence for the accused to
refuse to respond to a question by an investigating official) (Evidence
Act 2008 s89(3)).
37. Where the accused answers some questions but not others, it may
be necessary to admit the whole record of interview to prevent a
distorted or unreal version of the interrogation being placed before
the jury (R v McNamara [1987] VR 855; Brain v R [2010] VSCA 172.
See also R v Astill NSW CCA 8/7/92; R v Towers NSW CCA 7/6/93).
38. Evidence of the accused’s pre-trial silence should not be admitted
solely to prevent the jury from speculating about whether the
accused had given any account of his or her actions when first
challenged by the police (R v Hartwick Vic CCA 20/12/95. But see R v
Familic (1994) 75 A Crim R 229; DPP v Butay [2001] VSC 346; R v
Ivanovic [2003] VSC 403).
39. Even if evidence that the accused exercised his or her right of silence
is admissible, it may be appropriate to exclude it under Evidence Act
2008 ss135 or 137 (see, e.g., R v Astill NSW CCA 8/7/92).
When to Direct the Jury About Pre-Trial Silence
40. As Evidence Act 2008 s89 does not address the issue of when a jury
should be directed about pre-trial silence, Part 3 of the Jury
Directions Act 2015 applies (see Jury Directions Act 2015 s10).
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41. The need for a direction depends on whether a direction is sought or
whether there are substantial and compelling reasons for giving a
direction in the absence of any request (Jury Directions Act 2015
ss14 - 16). See Bench Notes: Directions Under Jury Directions Act
2015 for information on when directions are required.
42. At common law, whenever evidence was given which disclosed that
the accused had exercised his or her pre-trial right of silence, the
judge was required to direct the jury about the issue. If a direction
was not given, the jury might mistakenly use that fact to the
accused’s detriment (King v R (1986) 15 FCR 427. See also R v
Reeves (1992) 29 NSWLR 109; R v Astill NSW CCA 8/7/92; R v
Familic (1994) 75 A Crim R 229; R v Matthews NSW CCA 28/5/96).
43. A direction on pre-trial silence was considered necessary even if it
was not sought by counsel (R v Booty NSWCCA 19/12/94).
44. Under the Jury Directions Act 2015, the judge should consider the
significance of the evidence of silence in the context of the trial when
deciding whether to give the direction despite the absence of a
request.
45. The direction should be given when the relevant evidence is first
adduced (R v Reeves (1992) 29 NSWLR 109; R v Matthews NSW CCA
28/5/96; Sanchez v R [2009] NSWCCA 171).
46. While there is no rule to the effect that the direction must be
repeated in the summing up, it will often be desirable and prudent to
do so (Sanchez v R [2009] NSWCCA 171).
47. It is not sufficient to rely on counsel having addressed the issue. The
right of silence is fundamental, and requires a direction that is given
with judicial authority (R v Matthews NSW CCA 28/5/96).
Content of the Direction
48. When directing the jury on the accused’s exercise of the right of
silence, the judge must:

Warn the jury against the impermissible use of that fact; and

Explain any permissible uses of the evidence.
Warn the Jury Against Impermissible Use of the Evidence
49. A direction about impermissible uses of evidence of pre-trial silence
must tell the jury:

That the accused has a fundamental right to remain silent; and

That they should not conclude that the accused is guilty, or
draw any adverse inference against the accused, from the fact
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that he or she exercised that right (Petty v R (1991) 173 CLR
95; R v Reeves (1992) 29 NSWLR 109; King v R (1986) 15 FCR
427; R v Astill NSW CCA 8/7/92; R v Familic (1994) 75 A Crim
R 229; R v Matthews NSW CCA 28/5/96).
50. No particular form of words is required when directing the jury about
this issue. The judge is required to do no more than direct the jury
as to the nature of the right and that no inference adverse to the
accused can be drawn (R v Hodge [2002] NSWCCA 10).
51. It will usually be appropriate to also remind the jury that the accused
was specifically cautioned by the police that he or she was not
obliged to answer any questions, so as to avoid any suggestion of a
familiarity by the accused with criminal investigation procedures (R v
Reeves (1992) 29 NSWLR 109).7
52. Where the accused’s account of events has been presented for the
first time at trial, the judge must make it clear that no suggestion
can be made that that account is an invention because it had not
been presented earlier (R v Anderson [2002] NSWCCA 141).
53. If the accused’s selective silence is revealed to the court, the jury
must be directed not to draw an adverse inference from that fact
(King v R (1986) 15 FCR 427).
Direct the Jury About Permissible Uses of the Evidence
54. Where evidence of the accused’s pre-trial silence is admitted for a
legitimate purpose (see “When Can Evidence of Silence Be
Admitted?” above), the judge’s directions on pre-trial silence should:

Explain how that evidence may be used (e.g., to counter an
allegation of inadequate investigation); and

Direct the jury that they may only use the evidence for that
purpose (see, e.g., Wilson v County Court of Victoria (2006) 14
VR 461).
Contested Silence
55. In some cases it will be unclear whether a person responded to
official questioning or remained silent. For example:

The accused may have made an ambiguous gesture (such as a
shrug) in response to a police question, which could be
interpreted as “I have nothing to say” (silence) or as “I have no
This caution is required by Crimes Act 1958 s464A(3). The prohibition against
drawing adverse inferences applies regardless of whether such a caution has been
administered (Petty v R (1991) 173 CLR 95).
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explanation for what you have asked” (a response) (see, e.g., R
v Astill NSW CCA 8/7/92);8

The accused may claim that he or she responded to a particular
question, but the police may deny that was the case (see, e.g.,
R v Tang (2000) 113 A Crim R 393).
56. If such evidence is admitted, the directions should:

Explain the different possible findings to the jury;

Tell the jury that it is for them to determine whether the person
remained silent or gave a response; and

Explain the consequences that follow each possible finding (R v
Astill NSW CCA 8/7/92; R v Familic (1994) 75 A Crim R 229).
Correcting a Prosecution Breach of the Prohibition
57. The prosecution must not suggest that an adverse inference can be
drawn against the accused by reason of his or her failure to answer
questions asked by a person in authority, or to supply information to
such a person (R v Stavrinos (2003) 140 A Crim R 594).
58. The prosecution also must not suggest that the right to silence is
subject to exceptions that allow adverse inferences to be drawn in
certain circumstances (R v Stavrinos (2003) 140 A Crim R 594).
59. Consequently, the prosecution ordinarily must not:

Ask a person why they declined to answer official questions or
why they failed to raise a defence at an earlier time (R v Coe
[2002] NSWCCA 385; R v Fraser [1988] 1 Qd R 182; R v
Armstrong (1990) 54 SASR 207);

Invite the jury to ask themselves why an accused had remained
silent (R v Stavrinos (2003) 140 A Crim R 594);

Suggest that the jury can evaluate the version of events put
forward at trial (and discount it) by reference to the accused’s
earlier silence about it (R v Stavrinos (2003) 140 A Crim R
594).
60. Where the prosecution breaches this prohibition, the judge may be
able to remedy the situation with a strong direction (see, e.g., R v
In many cases it will be appropriate to exclude such evidence, as the risk of
prejudice to the accused will outweigh the probative value of the evidence. This
will especially be the case where the jury is asked to determine the meaning of a
gesture which they did not see (see, e.g., R v Astill NSW CCA 8/7/92).
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Coe [2002] NSWCCA 385).
61. Such a direction should tell the jury:

That as the accused has a right of silence, they cannot use his
or her exercise of that right against him or her;

To ignore the contrary suggestion made by the prosecution;

To put the issue and the evidence relating to the accused’s pretrial silence out of their minds; and

To clear from their minds whatever views they might have
formed as a result of the evidence and address of the
prosecution (R v Brown [2004] VSCA 59. See also R v Stavrinos
(2003) 140 A Crim R 594).
62. These directions should be given when the improper suggestion is
made, and again during summing up (R v Coe [2002] NSWCCA 385;
R v Brown [2004] VSCA 59).
Prohibited Directions
63. The jury must not be invited to take the accused’s pre-trial silence
into account against him or her in any way (Petty v R (1991) 173
CLR 95; Evidence Act 2008 s89).
64. This means that judges must not suggest:

That the exercise of the right of silence can provide a basis for
inferring a consciousness of guilt;

That a defence raised at trial is a recent invention or is suspect
because it had not previously been mentioned; or

That the jury can infer from the accused’s silence about the
facts giving rise to that defence that those facts are false (Petty
v R (1991) 173 CLR 95).
65. The judge should not comment on the fact that a particular matter
was not raised at the committal proceedings, or imply that there was
a duty to raise matters at committal (Petty v R (1991) 173 CLR 95).
66. The judge also must not tell the jury:

That the accused’s silence can be used to test the veracity of his
or her evidence (Glennon v R (1994) 179 CLR 1);

That the accused’s silence is relevant to the weight of the
evidence given in court (Petty v R (1991) 173 CLR 95);

That the police “gave the accused the opportunity to explain”
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his or her whereabouts (as this may convey the impression that
an innocent person would have willingly answered the questions
and given the police an account of his or her movements at the
relevant time) (King v R (1986) 15 FCR 427);

That the prosecution was deprived of an opportunity to
investigate the defence raised, or to call evidence in disproof of
that defence (as this suggests that the accused is under some
duty to make timely disclosure to permit an investigation of his
or her story by the prosecution) (Petty v R (1991) 173 CLR 95,
but see Criminal Procedure Act 2009 ss183, 233 and 237);

That the accused’s failure to respond to certain questions was
not the “sort of response one would expect” from a person
telling the truth (Yisrael v District Court of New South Wales
(1996) 87 A Crim R 63);

That if the accused had been telling the truth he or she would
have responded to particular questions (Yisrael v District Court
of New South Wales (1996) 87 A Crim R 63).
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