Markarian v The Queen

The High Court of Australia considered the appeal of Markarian against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from the appellant, which the defence argued was obtained in breach of his common law right to silence.

The High Court was required to determine whether the trial judge erred in admitting evidence of statements made by the appellant to police, despite the appellant having been cautioned that he was not obliged to answer questions but that failure to do so might be given in evidence against him. The court also considered the application of the common law exclusionary rule concerning improperly or unfairly obtained evidence.

In their joint judgment, McHugh and Kirby JJ affirmed that the common law right to silence protects an accused from being compelled to answer police questions. However, they held that the caution administered in this case did not render the subsequent statements inadmissible. The judges reasoned that the caution, while informing the appellant of his right to silence, also alerted him to the potential adverse inferences that could be drawn from his silence. This, they concluded, did not amount to unfairness or impropriety that would warrant the exclusion of the evidence under the common law rule. The appeal was dismissed.