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RPS v R [2000] HCA 3 199

This case examined the right to silence at trial. A step-father was found guilty of sexual offences against his daughter over 10 years, from when she was four years old. His appeal to the High Court raised the trial judge’s direction to the jury about his silence at trial. In 1991, in Weissensteiner, the High Court had changed the common law and allowed adverse inferences from the silence of the accused. In RPS, it re-considered this, and the majority held that adverse inferences are open only for circumstantial evidence. In the United Kingdom, the common law right to silence at trial was changed by legislation in 1994, and a jury direction which allows adverse inferences from silence is currently used in courts. A feminist re-writing of RPS will argue that the current privileging of the accused over the accuser should be avoided. It recognises that an unqualified right to silence has consequences for others. The re-written judgment will adopt some aspects of UK law, but will go further by specifically engaging with ‘otherness’ by encouraging jurors to look closely not only at the particular accused, but also the particular accuser, and specifics of the crime. It will invite a re-thinking of the right to silence, and the unquestioned assumptions underpinning its practice in criminal trials, removing the unfairness resulting from the current dominant discourse, with its focus only on the accused. The decision will outline when the jury may take silence into account, without changing the onus of proof, the presumption of innocence and non-compulsion to give evidence.

Commentary author

Katherine Biber is an Associate Professor in the Faculty of Law at the University of Technology, Sydney. She is an interdisciplinary scholar with expertise in law, criminology and history. Katherine researches crime and evidence, with a specific focus on adversarial litigation. Katherine’s research interests lie in the relationship between social disadvantage and transgression.

Judgment author

Helen O’Sullivan was appointed as a Judge of the Queensland District Court in 1991 and retired in 2009. Helen holds degrees in commerce, jurisprudence and law as well as a PhD from Griffith University, and has been a Visiting Fellow at Cambridge University. Her PhD examined the limitations of the right to silence. As a judge, Helen has been involved with law reform, especially in the areas of women and criminal law, and child sexual assault.

Phillips v R [2006] HCA 4

Phillips was 17 when he was first charged with the sexual assault of a 15-year-old girl. During a police investigation, more charges were laid after five other victims came forward. Because all eight charges were heard in a joint trial, the evidence in relation to each was cross-admissible in relation to each other charge. The prosecution argued that the evidence of each complainant was admissible because together it demonstrated the objective improbability of six teenage girls independently making a false complaint of sexual assault against the same person. On appeal, the High Court concluded that the trial judge had wrongly decided that the complainants’ evidence was cross admissible, holding that such evidence can only be relevant to the mental state of the complainant (whether or not s/he consented) which was not a fact in issue. In fact, the High Court, comprised of five male judges, described Phillips’ alleged behaviour as ‘entirely unremarkable’, failing to understand the relevance and significance of a defendant’s pattern of predatory behaviour which included sexual aggression, force and violence. In 2012, it is timely to consider how the High Court arrived at a conclusion that it was entirely unremarkable for a male teenager to seek sex with teenage girls using force, violence or threats of violence when these characteristics actually represent the hallmarks of a serial sex offender.

Commentary author

Mehera San Roque is a Senior Lecturer, Director of JD Progam and Coordinator of UG and JD Education (Acting) in the Faculty of Law at the University of New South Wales. Her research interest is in evidence, feminist legal theory, law and visual culture. She is also engaged in cross-disciplinary research, working with colleagues in law, forensic science, psychology and medicine.

Judgment author

Annie Cossins is an Associate Professor in the Faculty of Law at the University of New South Wales. Annie is an expert on legal reform in the area of sexual assault and a scholar in theoretical criminology. Annie was founder and previously Convenor of the National Child Sexual Assault Reform Committee and an academic member of the Advisory Committee of the Australian Institute of Judicial Administration on a Guide to Children Giving Evidence.