Re-examining the common law right of an accused not to testify

Criminal Law Forum

Volumn 12, Issue 3, 2001, Pages 359-369

  Mullineux, James ^a  

^a Serious Fraud Office   (New Zealand)

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EID: 52549123595     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1014955310812     Document Type: Review

References (30)

1. A typical example is the disapproving reference to logic (often called "strict logic") in R. v. Majewski, [1977] A.C. 443; [1976] 2 All E.R. 142 (H.L.).
2. Court of Appeal, CA185/00, 12 October 2000.
3. Before 1966, a judge in New Zealand was forbidden from commenting on an accused's failure to testify. The Canadian rule (Canada Evidence Act, R.S.C. 1985, ch. C-5, s. 4(6)) forbids the judge and the prosecutor from commenting on the accused's silence. Griffin v. California, 380 U.S. 609 dealt with a California law that entitled the trial judge to tell the jury it could take the accused's silence into consideration. In Carter v. Kentucky, 450 U.S. 288 the trial judge refused a defence request, on the ground that Kentucky law forbade any comment, to direct the jury that silence was not to be treated as evidence of guilt. The United States Supreme Court, though not unanimously, overruled both decisions.
4. R. v. McCarthy [1992) 2 N.Z.L.R. 550.
5. This point, the Court of Appeal said, was not relevant to her guilt or innocence. Still, a jury might have thought that a belief in the existence of overseas funds showed absence of mens rea. Counsel was right to try to remove this threat by arguing for the absence of foundation for the view.
6. In R. v. Dallard, [1957] N.Z.L.R. 1092, the trial judge made a comment to the jury similar to that of prosecuting counsel in Faisandier. The Court of Appeal, dealing with the predecessor of section 366, held that "[a] comment that the defence has called no evidence on a matter which the defence has raised as a matter of some importance is in all essentials something entirely different from a comment that the accused has refrained from giving evidence".
7. (1995) 13 C.R.N.Z. 301, at 303. The United States Supreme Court in Griffin, above, took essentially the same view.
8. Law Commission Report 55, Vol. 1 (Reform of the Law), para. 119ff; Vol. 2 (Evidence Code and Commentary), draft sections 32, 33 and 34, pp. 90-95.
9. BERTRAND RUSSELL, SCEPTICAL ESSAYS 97 (1928).
10. WIGMORE ON EVIDENCE paras. 30-37 (Tiller's rev., 1983).
11. The famous Goodman paradox shows that evidence that supports a conclusion A will also support any other conclusion B and that there is no way of determining which conclusion is "correct". See N. GOODMAN, FACT, FICTION AND FORECAST (1965) (Chapter III: The New Riddle of Induction: "We are left once again with the intolerable result that anything confirms anything.").
12. In 1977, L. Jonathan Cohen published THE PROBABLE AND THE PROVABLE (1977), which presents a specialised form of legal induction.
13. INTRODUCTION TO ADVOCACY (2000).
14. This is a simple rule of probability theory (the multiplication rule) and even of common sense: it is less probable that any individual is both a lawyer and an accountant than that any individual is either a lawyer or an accountant. The more facts that have to be accommodated in an explanation, the less probable that explanation is.
15. This is not the place to confront the argument of Bayesians, but those who support a Bayesian probabilistic approach to forensic fact-finding might like to consider Popper's argument against the ampliative import of Bayesian inductivism. See KARL R. POPPER, REALISM AND THE AIM OF SCIENCE xxxvii. (1983).
16. KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (1980).
17. See also R.G. COLLINGWOOD, THE IDEA OF HISTORY 269 et seq. (1945), giving a convincing description of the hypothetico-deductive method at work on a historical problem.
18. Popper's argument presented a solution to the problem of induction. In W.W. BARTLEY, THE RETREAT TO COMMITMENT (1984), Popper's argument is expanded, with the result presented as the basis of rationality.
19. Karl R. Popper, THE RETREAT TO COMMITMENT (1984), Popper's argument is expanded, with the result presented as the basis of rationality.ibid., p. 30 (italics in the original).
20. See W.W. Bartley, A Popperian Harvest in IN PURSUIT OF TRUTH 271 et seq. (P. Levinson, ed. 1982).
21. There is of course logically no inference from silence, but only the absence of an alternative explanation. This error shows how hard old habits of thinking die. However the model direction under section 35 contains the sentence "if the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him..." (my italics) which accords with the method of conjecturing explanatory theories and trying to refute false ones. For the full model direction under section 35, see R. v. Cowan [1995] 4 All E.R. 939.
22. (1967) 51 Cr App R 102.
23. See R. v. McCarthy [1992] 2 N.Z.L.R. 550, 556: "Of course the jury would be free in their deliberations to take into account the silence of the accused, but the Crown was not entitled to urge them to do so."
24. Supra note 3.
25. Law Commission Report No 55 (Evidence), Vol. 1, para. 52. The "current jurisprudence" referred to is the Canadian case of R. v. Smith, (1992) 94 D.L.R. (4th) 590 (S.C.C.). There, Lamer C.J. said: "hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible, where the circumstances under which the statements were made satisfy the criteria of necessity and reliability...."
26. Ibid., Vol. 2.
27. R. v. Fenton, R. v. Fenton, CA223/00, CA299/00, 14 September 2000, paras. 33-35.
28. [1996] 1 N.Z.L.R. 129.
29. In fact Newton's equations are not reliable, because they have been proved to be false. If the rocketry problem involved speeds approaching that of light, Newton's equations would be seen to be both false and unreliable.
30. See D. MILLER, CRITICAL RATIONALISM (1994).