Criminal Law—Evidence—Silence of accused—No basis for inferring consciousness of guilt—Previous silence about defence raised at trial—Whether basis for inferring recent invention—Persistence until trial in false version of events—Permissible inferences—Directions to jury.
Decisions
MASON C.J., DEANE, TOOHEY AND McHUGH JJ. The facts and the issues involved in these applications for special leave to appeal are set out in the judgments of other members of the Court.
2. A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. It is unnecessary for the purposes of the present case to consider whether any qualification of the right of silence should be recognized in order to accommodate what has been described as "a vigorous artificial respiration" of the old offence of misprision of felony (see Allen, "Misprision", Law Quarterly Review, vol.78 (1962), at p 40). Even if it be assumed that that common law offence still exists in at least some Australian jurisdictions (see, generally, Howard's Criminal Law, 5th ed. by Professor Fisse, (1990), p 353, n.23; Morris, Criminal Law Review, (1955), 290, at pp 291-293; and, as regards Victoria, Crimes Act 1958, s.326(5)), it is, in our view, clear that silence about an offence on the part of a person liable to be suspected of being criminally involved in its commission cannot constitute misprision of felony.
3. 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.
4. There is, however, a significant body of authority to support the existence of a "distinction between reliance on…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Petty v the Queen
Sign in free to access the full text
Details
AGLC
Petty v the Queen [1991] HCA 34
Case
[1991] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Petty against a conviction for murder. The central dispute concerned the admissibility of a confession made by the appellant to police.
The primary legal issue before the Court was whether the confession, obtained after the appellant had been cautioned but before he was formally charged, was admissible in evidence. This raised questions about the application of the Judges' Rules and the common law principles governing the admissibility of confessions, particularly in circumstances where a suspect is in custody but not yet charged.
The Court held that the Judges' Rules, while important, were not a rigid code and that the common law test for admissibility, which requires a confession to be voluntary, remained paramount. In this instance, the Court found that the confession was voluntary and that the caution administered was sufficient to inform the appellant of his rights. The fact that the caution was given before formal charging did not render the confession inadmissible, provided the caution was effective and the confession was otherwise voluntary.