MacMillan v The Queen

The case of *MacMillan v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, MacMillan, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the appellant had remained silent when questioned by police after being cautioned. Specifically, the court considered whether the admission of this evidence, and the directions given to the jury regarding its use, constituted a miscarriage of justice. A further issue was whether the cumulative effect of certain alleged errors during the trial had deprived the appellant of a fair trial.

In their joint judgment, Kirby and Hayne JJ analysed the principles governing the admissibility of silence in the face of police questioning. They referred to established common law principles and relevant statutory provisions, emphasizing that while a caution informs an accused of their right to silence, it does not automatically render subsequent silence admissible as evidence of guilt. The court considered the potential for such evidence to be unfairly prejudicial to an accused, particularly if the jury might infer guilt from the silence itself, rather than considering it only in the context of whether the silence was reasonably explicable by circumstances other than guilt. The judges ultimately found that the admission of the evidence of silence, coupled with the directions provided, had created a real risk of a miscarriage of justice.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.