Section 89 of the Evidence Act prevents evidence of silence being used to infer guilt. If evidence can only serve that purpose it is not admissible.

(As Jeremy Gans commented on my related post last year, this includes silence by any person, not just the accused, in response to an investigating official. It’s possible to think of some instances where these prohibitions might lead to some odd results).

The Judicial College has recently published a new chapter discussing silence in response to people in authority. It doesn’t (yet) refer to Brain‘s case which was handed down earlier this month.

Brain v The Queen

In Brain v The Queen, the appeal concerned the admissibility of answers in the record of interview. They had been objected to but allowed at trial. The accused’s answers frequently referred to a desire not to answer the question or not to incriminate himself. The appeal ground contended that these answers were irrelevant and prejudicial, and ought to have been excluded.

Coghlan AJA [at 11, with Weinberg and Mandie JJA in agreement]:

11 The matter can best be illustrated by considering some of the questions and answers in the record of interview:

139: Yeah. Can you describe how he did it and what he did and – – -?

No, I’d rather not do that. I don’t want to incriminate myself, but he started laying his hands on me, physically.

140: I’m asking you to describe what he did to you, and that – – -?

No, well, that’s hay my – – –

141: That’s what you’re telling me. You’re telling me he assaulted you.

[Darryn]?

142: Yeah?

That’s as far as I’m prepared to say, because he was speaking to ‘em. Like he had spoken to you guys three times, you know, just prior and said, “Don’t worry about it,” and while he was speaking to the ambulance I said, “You don’t have to do this,” and he started physically assaulting me.

143: Was he still on the phone then, at the time, was he?

Yes.

144: Or had he hung up?

No, no. He was still on the phone.

145: Okay, was he throwing punches at you, was he throwing things at you? That’s what I’m asking you to describe, if you can, how he was assaulting you.

Well, he was physically assaulting me, and I don’t want to go any further than – than what I’m saying, but he was laying his hands on me – – –

146: Yeah.

In a violent manner.

147: Well, the reason we’re here now is that an allegation has been made of assault by you, upon him which we’re investigating.

Yes.

148: Okay. So he told us that an assault took place in which case – in – where – whereby he was injured and the injuries were committed by yourself, what would you say to that?

That’s what that – I – I don’t wish to answer that.

The Court of Appeal noted (as the trial judge had also) that counsel at trial hadn’t objected to every instance where the accused had stated a desire not to answer, but only where it was not tactically advantageous to the defence case to allow the answer. The Court also noted that the accused had not given evidence at his trial and that some parts of the record of interview that were not objected to laid the foundation for the accused’s assertion of self-defence.

Coghlan AJA [at 17]:

17 There are numerous other examples of questions and answers to which no objection was taken, although these included expressions which, viewed in isolation, might have suggested an unwillingness to comment. It is fair to say that the defence position was that the applicant wanted those parts of the record of interview which supported a defence of self-defence to be included, whether or not they contained expressions such as ‘no comment’, or ‘I do not wish to incriminate myself’. However, where those expressions were not specifically linked to self-defence, or otherwise advantageous to the applicant, it was sought to have the record of interview edited, and the answers excluded.

18 The Crown submitted that, having regard to the overall position taken by the applicant to the record of interview, there was no reason why the impugned questions and answers should be excluded. Although the prosecutor referred to cases such as Woon v The Queen, R v McNamara and R v Barrett, all of which deal with ‘selectivity’ as rendering ‘no comment’ style answers relevant and admissible, he did not rely upon that doctrine, or any notion of ‘consciousness of guilt’ in support of their admissibility.

19 Ultimately, the position taken by the Crown in relation to the impugned questions and answers was a simple one. It was submitted that the record of interview, as a whole, could only be intelligible if those questions and answers were admitted.

The Court of Appeal found this simpler line of argument compelling. Leave to appeal was refused. The Court was satisfied that appropriate directions had overcome any prejudice to the accused.

AJA Coghlan [in 29]:

The only reason why the trial judge permitted the ‘no comment’ answers to be led was because, otherwise, the record of interview would have produced a disjointed and misleading impression. Counsel who appeared for the applicant at trial wanted, selectively, by what could be described as a ‘cut and paste’ approach, to have only those ‘no comment’ answers that were linked in some way to the applicant’s defence admitted, but not others. Plainly, he took the view that otherwise the applicant’s defence would not have been before the jury at all. It should be noted that the applicant did not give evidence at the trial, so his defence had to depend largely upon what might be elicited from the complainant in cross-examination, and those answers the applicant gave regarding self-defence in the record of interview.

30 As a general rule, ‘no comment’ type answers are regarded as irrelevant, and potentially prejudicial. For that reason, they are normally excluded. However, the question of admissibility must, in the end, depend upon the particular circumstances of the case.