Selective answering

Section 89 of the Evidence Act 2008 is sure to generate some fresh discussion about whether selective answering can be a valid source of inferences about an accused’s consciousness of guilt.

The prohibition on the selective answering of an accused in response to police questioning being used to infer a consciousness of guilt – or at least the impermissibility of jury directions to that effect – is a settled issue: R v Smith, Alford and Schevella 50 A Crim R 434 and R v Russo [2004] VSCA 206. However, s 89(2) of the new Evidence Act will still allow evidence of selective answering for purposes other than to demonstrate consciousness of guilt (such as to provide proper context, as in R v Barrett [2007] VSCA 95).

89. Evidence of silence

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused-
(a) to answer one or more questions; or

(b) to respond to a representation-

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.
(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section, inference includes-

(a) an inference of consciousness of guilt; or
(b) an inference relevant to a party’s credibility.

Evidence can be given that an accused exercised their right to silence, but if this happens the trier of fact needs to be given a direction that the accused’s silence cannot be used to infer guilt.

In Woon v R (1964) 109 CLR 529, the selective answering of the accused during police interview was the subject of comment by the trial judge. The High Court decided that the transcript of the interview was admissible and probative. Though it contained some evidentiary value as to facts in issue, its principal value was as evidence of the accused’s responses indicative of alleged consciousness of guilt.

Some have difficulty reconciling Woon with the later Victorian authorities. The Court of Appeal have declined the attempt: R v Boros [2002] VSCA 181. The solution probably lies in recognising that it is the answers given, not the silences, which the High Court deemed admissible and probative.

In Woon, Kitto J (Owen J also adopting this reasoning),

The point here is that, whether or not an accused person’s reactions to statements or questions put to him in the course of an interview indicate either that he admits any particular fact suggested to him or only in his own mind recognizes that it is a fact, those reactions may have evidential value upon the ultimate question of fact in the case because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged. It cannot be that while the jury may be allowed to take account of conduct of the accused person as showing his state of mind upon a subsidiary or primary question of fact they may not take account of it as showing his state of mind upon the ultimate question of fact. In the present case, in my opinion, it was in accordance with law that the jury was invited to consider the significance of the applicant’s answers to such questions as he chose to answer and to treat as material upon which to found a verdict any revelation they might think those answers afforded of what they would have discovered upon the question of guilt or innocence if (to repeat the trial Judge’s vivid expression) they could have looked inside the applicant’s mind.

Taylor J,

Accordingly as I see the present case the primary question is whether it was open to the jury to infer from the words and conduct of the applicant upon his interrogation, viewed in the light of the associated facts proved against him, that he had revealed his guilt, or as the learned trial judge put it, that he had showed or indicated that he was conscious that he was guilty of the crime alleged. The case is somewhat unusual but it does not, in my view, involve the consideration of any important question of law.

Menzies J,

2. Furthermore, although the decisive question for the consideration of the jury in the case against the applicant was whether his answers to the questions which he chose to answer showed his participation in the crime proved by other evidence, I consider that the learned trial judge’s direction that the jury should consider whether the applicant’s answers indicated a consciousness of guilt was correct for, if those answers did so, then, in the circumstances here, what the applicant said could be regarded as a confession of his guilt notwithstanding that it was not so intended. As his Honour said to the jury, “A man may not intend to show his hand, gentlemen, but on the other hand he may just do that very thing”.

Windeyer J,

4. In the present case there was no evidence against Woon other than his answers to the police and his possession of some money, notes, which may or may not have been some of those stolen from the bank. The Supreme Court said that his answers to questions were “selective”. They were. But he had been told he need not answer any questions unless he wished to do so. He had replied “you can ask me any questions you like and then I will decide whether or not I will answer them”. The interrogation then proceeded. He answered some questions. He refused to answer others. In the result some of his answers appear evasive. Some questions he answered by asking in effect for an assurance that what the other men were said to have told the police had been said in such a way as to implicate him. That is to say, he appeared to be trying to find the strength of the case against him. He carefully refrained from admitting any fact that he thought the police could not prove. In all this he seems to have been cautious and astute. I entirely agree that his answers to questions asked should be considered as a whole, and in the context of his refusals to answer other questions. But could the fact that he carefully chose the questions he would answer justify an inference of his participation in the crime with which he stood charged? He expressed surprise that in their statements to the police the other men should have implicated him. “Do you mean to say that they have put me in.” . . . “It just surprises me that they would put me in.” Something might turn on the tone of voice in which these things were said. But of that we know nothing. Taken literally the utterances are equivocal. They could be expressions of surprise that his participation in the crime had been disclosed by his confederates, or they could be expressions of surprise at the suggestion that they should have falsely implicated him. In one important matter he told lies. He said at first that he did not know his alleged accomplice Radcliffe. In fact, as later he admitted, he knew him well. Moreover he had sent telegrams to him, using code names and false addresses. These telegrams were apparently expressed in some sort of code. They were certainly capable of leading to an inference that he and Radcliffe were engaged in some secret enterprise. But it seems to me that showing that there was an association – and, let it be assumed, a guilty association – between Woon and Radcliffe does not really show that Woon was a participant, either as principal or accessory, in the breaking, entering and stealing from the bank. The evidence admissible against Woon may support an inference that Radcliffe and he were partners in a criminal enterprise. But does it support a conclusion that, beyond reasonable doubt, Woon was a participant in this crime? I doubt this. However, as I have said, I would refuse leave to appeal.

The combined effect of the decisions in Woon shouldn’t be seen as abandoning any long-held legal precept, or even being out of step with later decisions. As Taylor J put it, “[T]he case does not involve the consideration of any important question of law”.

Reviewing them, it is clear that the court considered the answers and not the silences to be the probative aspect of the accused’s conduct; pressing his interrogators for information about how much they knew, evasiveness, delaying tactics and outright proven lies. This is where the consciousness of guilt is found; in the statements, not the silences.

Someremarks of Windeyer J are the source of the confusion,

3. A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all.

The references to, “might be expected to, respond in some way indicative of denial or of acceptance” and, “his … silence …. may amount to an admission of the truth” are liable to be misinterpreted, drawing attention to what wasn’t said rather than to focus on what was. It borrows from the permissible adverse inference that attaches to silence in the face of an accusation made by parties of equal standing, Parkes (1976) 64 Cr App R 25, adopted in Victorian law in R v Alexander (1994) 2 VR 249

If there was confusion about the decision in Woon created by the remarks of Windeyer J (and to a lesser extent, Kitto J), the issue was clarified by Dawson J in Petty v R; Maiden v The Queen (1991) 173 CLR 95:

Of course, in speaking of drawing adverse inferences in Woon, both Kitto and Windeyer JJ. had in mind an admission of guilt, or the disclosure of a consciousness of guilt, to be inferred from the behaviour of the accused. They were not referring to the evaluation of an accused’s evidence in the light of his previous silence, if that may be said to involve the drawing of an adverse inference. But I should add that, in my view, if a person remains silent intending to exercise his right to do so, his silence cannot amount to an admission of any kind or display a consciousness of guilt, whether or not a caution has previously been given.

While the principle may be settled, the application of it isn’t always consistent. In R v Merlino [2004] NSWCCA 104 evidence of the accused not making an immediate complaint was held to be relevant for the purposes of evaluating a story that was held to be inconsistent, and cross-examination on the issue was held to be appropriate [67 – 77].