text:
I am sending herewith the 180th report on “Article 20 (3) of the Constitution of India and the right to Silence” of a person accused.
V Union Of India, (1978 (1) SCC 248), Article 21 of the Constitution of India requires a fair, just and equitable procedure to be followed in criminal cases. In the present Report, an analysis and a comparative study of ‘right to silence’ is made based on recently decided English and European Court cases and the position currently obtaining in various countries like U.S.A., Australia, Canada, U.K. and China. Our recommendation is to emphasize that no change in the law relating to right to silence of the accused is necessary. The right is protected by Articles 20 (3) and 21 of the Constitution and sections 161 (2), 313 (3) and 315 of the Code of Criminal Procedure, 1973. If the changes made in U.K. or those proposed in Australia are introduced in India, such changes will be ultra vires of Articles 20 (3) and 21 of the Constitution of India. Our recommendation, therefore, is that no dilution of the existing right to silence need be made nor can be made.
“…..throughout the web of English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt” (per Viscount Sankey).
The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.
The origins of right to silence may not be exactly clear but the right goes back to the middle ages in England. During the 16th century, the English Courts of Star Chamber and High Commission developed the practice of compelling suspects to take an oath known as the “ex-officio oath” and, the accused had to answer questions, without even a formal charge, put by the judge and the prosecutor. If a person refused to take oath, he could be tortured. These Star Chambers and Commissions were later abolished. The right to silence is based on the principle ‘nemo debet prodere ipsum’, the privilege against self-incrimination.
Wigmore regarded the principle of silence as having crept into the common law almost by accident in the mid-seventeenth century following the collapse of the political courts of Star Chamber and Commissions. Once the right was established, the right of the accused was extended to witnesses and to allegations of crime and to civil litigation. Wood and Crawford have argued that the device can be attributed to the widespread hostility aroused by compulsory testimony upon oath. They maintain that the right emerged in England as a basic democratic right established by public agitation long before it became the subject of judicial consideration. The second theory, offered by Maguire and Levy, traces the ‘privilege against self-incrimination’ to the English common law criminal procedure in the middle ages. Both Levy and Maguire agree with Wigmore that the right was extended later to witnesses in a criminal case and to allegations of crime made in civil proceedings. Mc Nair has a third view that the above authors have put “the cart before the horse”. The privilege originated in Roman Common Law, applying first to witnesses and to allegations of crime in civil proceedings before it was extended to the accused in criminal law. The Criminal Law Revision Committee (UK) said in 1972 in its 11th Report that the principle did not emerge until the 19th century. (see ‘The Right to Silence: A Review of the Current Debate) (1990) Vol. 53 Mod L Rev p. 709).
The 16th and 17th centuries show that the privilege against self-incrimination was closely related to the medieval version, which was involved in the protection against religious intolerance. In England, prerogative courts such as the Star Chamber and the High Commission and ecclesiastical courts used the oath ex-officio. In this procedure, any person on the street could be picked up, asked to take oath and answer questions for finding out if they were in disagreement on questions of theology with the Crown. The Privy Council on a motion from the House of Commons asked Coke and Chief Justice Popham when the oath could properly be administered. They replied, “No Man…. shall be examined upon secret thoughts of his Heart, or of his secret opinion”: (see “An Oath before an Ecclesiastical Judge ex-Officio”, 12 Coke’s Rep 26 (3rd Ed, 1727). The Long Parliament abolished the Star Chamber and High Commissions and forbade ecclesiastical courts to use the oath ex-officio. (see “Origins of the Privilege against Self-incrimination”: by R.H. Helmhotz 65. New York Univ. Law Rev 962 (1990); Michael R.T. Mc Nair, “The Early Development of the Privilege against self-incrimination”: 10 Oxford J. of Legal Studies, 66 (1990); Eben Moglen, Taking the Fiflt: Reconsidering the origins of the Constitutional Privilege against Self Incrimination 92, Mich L. Rev. 1086 (1994). (quoted at pp 216-217 by Prof. Akhil Reed Amar in his ‘The Constitution and Criminal Procedure, First Principles’ 1999, Yale University Press).
The right to silence has various facets. One is that the burden is on the State or rather the prosecution to prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to be guilty. A third is the right of the accused against self incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself. There are also exceptions to the rule. An accused can be compelled to submit to investigation by allowing his photographs taken, voice recorded, his blood sample tested, his hair or other bodily material used for DNA testing etc.
In India, the right against self incrimination is incorporated in clause (3) of Art. 20 and after Maneka Gandhi’s case: (1978 (1) SCC 248), Art. 21 requires a fair, just and equitable procedure to be followed in criminal cases.
It is initially necessary to bear in mind the difference between burden of proving an issue (known as the legal or persuasive burden of proof), a burden which never shifts and the burden of adducing credible evidence (known as evidential burden), which can go on shifting during the trial. Several modern statutes, while maintaining the burden of proving a pleading or charge, alter the evidential burden. For example, in a civil case, a plaintiff may have to prove that the defendant, having borrowed money, is indebted to him but under Sec. 118 of the Negotiable Instruments Act, the initial evidential burden is shifted to the defendant if he had executed a negotiable instrument in favour of the plaintiff. This method of shifting evidential burden has been resorted to in criminal cases too particularly where an accused is found in possession of certain property which the law declares it illegal to possess, such as drugs or stolen property etc. It is perfectly open to a legislature to shift the evidential burden.
For example, under the Prevention of Corruption Act, 1988 the evidential burden is shifted to an accused person from whom unaccounted monies or properties disproportionate to his known sources of income are recovered. Under the Excise and Customs laws, and laws relating to smuggling, such evidential burden is initially imposed on the accused in certain circumstances, where the accused may be having special knowledge about facts such as where contraband property is recovered from. Such provisions have been challenged as violative of the principle against self incrimination but have been upheld in as much as there is no shift in the burden of proof on the charge which lies on the State or the prosecution.
(see Glanville Williams, The Proof of Guilt (1963, 3rd Ed., Stevans pp 184-185).
It is in the above background and in the light of the constitutional provisions in our Constitution that we propose to consider whether any changes in the right to silence is necessary and whether, even if made, whether such changes will be valid.
We shall refer to certain recent developments in other countries.
Initially in England, the law-makers were confronted with problems of terrorism in Northern Ireland. In order to combat the said problem, the Criminal Evidence (Northern Ireland) Order, 1988 was amended permitting inferences to be drawn from the silence of an accused where the accused had a duty to speak. Later on, similar changes were carried out in the English law by enacting sections 34 to 37 in the Criminal Justice and Public Order Act, 1994. These provisions permit ‘proper inferences’ to be drawn from the silence of the suspect during interrogation or of the accused at the trial. The Court can comment on the silence in its summing up to the jury. The jury can take the silence into consideration.
In a case arising from Northern Ireland, under the Criminal Evidence (Northern Ireland) Order, 1988 the matter initially came up before the House of Lords in Murray vs. DPP (1993 Cr. App. Rep. 151). There, the statute enabled the Judge to taken silence into account. In N. Ireland the matters would not go before the jury, unlike the provisions in the English Act of 1994. Lord Mustill observed that though the statute in Ireland enabled ‘proper inference’ to be drawn in case of silence of the accused, it was first necessary that a prima facie case is made out against the accused. Only then the new provisions could be resorted to for the purpose of drawing conclusions about the guilt of the accused. The Court has to make a ‘common sense approach’. He made it clear that no finding of guilt could be arrived at merely based on the silence of the accused.
On appeal, the European Court in Murray vs. United Kingdom (1996) 22 EHRR 29, held that the encroachments into the right to silence made in Ireland by the Irish law of 1988 did not violate the right to a fair trial nor the presumption of innocence mentioned in Article 6 of the European Convention. It was further held that the trial Judge could not draw an adverse inference merely on account of the silence of the accused and that the guilt of the accused must be prima-facie established by the prosecution. An additional condition was laid down that the new provisions could not be resorted to unless it was proved that the accused was given an opportunity to call for an attorney at the time when he was interrogated by the Police or at the time of trial. This was a mandatory rule.
After the judgment above referred to, which arose from the Irish law, the English Parliament, which had in the meantime introduced similar provisions in the Criminal Justice and Public Order Act, 1994, as applicable to England and Wales, amended the said Act by the Youth Justice and Criminal Evidence Act, 1999 by introducing provisions requiring the suspect or accused to be informed of his right to call an attorney.
A similar provision was introduced in Sec.36 by way of Sub-section (4A). Section 36 deals with failure of the accused to account for objects, substances, and marks. Sub-section (3A) was introduced in Section 35. That section deals with right to silence at the trial. Similarly in Sec.37 which deals with the presence of the accused at the scene of offence, sub-sec.(3A) was introduced. All these new Sub-sections require that the accused must be informed that he has a right to the presence of an attorney whenever he is questioned. If he had not been so informed, the fact that he remained silent, could not be taken into consideration.
If therefore, no presumption can be raised on account of the silence of the accused unless a prima-facie case of guilt has been established by the prosecution, it is difficult to see, and several jurists have also stated similarly, that there is no extra advantage in permitting the judge to rely on the silence of the accused. Further, while the amendment to the English law has made a provision for raising “proper inferences”, the European Court in Murray Vs. UK has reduced its rigour by limiting the use of the silence for the limited purpose of an assurance or corroboration and that too, provided the accused was informed of his right to have a lawyer by his side at the time of the questioning.
But, according to the House of Lords and the European Court, silence of the accused enters into the decision-making process before arriving at a finding that the accused is guilty beyond reasonable doubt.
One may ask the question as to in how many cases Police Officers in India are strictly following the rules laid down by the Supreme Court in D.K.Basu’s case? In a pending public interest litigation in the Supreme Court, it was reported by the amicus very recently that, according to the information received from various States, it was clear that D.K.Basu guidelines are not being followed in most of the States. Can anybody assure that in India, the Police invariably would inform a person in detention that he has a right to call a lawyer at the time of his interrogation? Even if we introduce a rule to that effect and even if the Police record in their diary that such an opportunity was given, one cannot say how much credence can be given to such a noting in India. Even in England, it was stated that, if the signature of the accused was not obtained in the diary after recording that he was informed of his right to call an attorney, that would amount to a breach of section 78 of the Police and Criminal Evidence Act, 1984. One other thing to be noted is that Article 6(1) of the European Convention only speaks of a right to a fair trial and Art. 6(2) to a presumption of innocence. There is no reference to a right against self incrimination, as contained in Article 20(3) of our Constitution or as contained in the Fifth Amendment of the American Constitution. In Murray vs. UK, the European Court no doubt observed that if the silence of the accused was taken into account, after a prima facie case was established and the accused was informed of his right to call for an attorney, the provision as to fair trial in Art. 6(1) would not be violated.
“…..the Court would observe at this juncture that the applicants were subjected to cross examination on the content of their solicitor’s advice can not be said to raise an issue of fairness under Art. 6 of the Convention. They were under no compulsion to disclose the advice given, other than the indirect compulsion to avoid the reason for their silence remaining at the level of a mere explanation. The applicants chose to make the content of their solicitor’s advice a live issue as part of their defence. For that reason, they cannot complain that the scheme of sec. 34 of the 1994 Act is such as to override the confidentiality of their discussions with their solicitor”.
The above observations of the European Court lead to this. If the accused remains silent, they run the risk of an adverse inference. But if they seek legal advice and state that their lawyer advised them to remain silent, the Court would then say that there was a fair trial and that they had waived their privilege of confidentiality. They would be prejudiced either way.
“They (accused) testified that they acted on the strength of the advice of their solicitor who had grave doubts about their fitness to cope with police questioning….their solicitor confirmed this in his testimony in the voir dire proceedings…….then admittedly the trial Judge drew the jury’s attention to this explanation. However he did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation.
It is to be observed that the Court of Appeal found in terms of the trial Judge’s direction deficient in this respect…In the Court’s opinion, as a matter of fairness, the jury should have been directed that it could only draw an adverse inference if satisfied that the applicant’s silence at the police interview could only sensibly be attributed to their having no answer or none that would stand up to cross examination….
We have set out passages from the judgment of the European Court in Condron’s case which arose out of the UK law as amended in 1994, in sufficient detail, only to show the ramifications into which the English law has been thrown after the 1994 amendments.
Let us, therefore, consider the new problems the English Courts are presently facing after the 1994 changes in the law relating to the right to silence. Presently in most cases, the accused would say, upon being questioned, that his lawyer had asked him to remain silent. Questions have arisen as to whether the lawyer has advised the accused to remain silent because the lawyer felt that the accused might not be able to withstand the hard questioning by the police or the clever or complicated questions of an able prosecutor. Questions have also arisen as to whether the lawyer knew about the guilt of the accused and felt that the accused should stand by his constitutional right. Yet another question that has arisen is whether the lawyer of the accused can be cross-examined, as done in Condron’s case to reveal the details of the advise and whether that would or would not violate the basic principle of confidentiality between a lawyer and his client.
We shall refer to some more problems faced by English Courts after the changes of 1994. For example, the present law requires the court to draw a ‘proper’ inference against the accused who has remained silent when questioned by the Police or by the Court. There are no guidelines as to what type of inference should be drawn in different situations or facts. Further, even after 1994, it is accepted that silence alone cannot be treated as evidence against the accused unless a prima facie case is made out first. Opinion about prima facie case can always differ. For example, an accused may want to remain silent as he does not recognise the authority of the person questioning his innocence. Jesus might have opted to remain silent as he did not accept the authority of Pontius Pilot to question his innocence. (see Mathew 27: 11-14; Luke: 22: 2-5) (quoted by Rosemarry Pattenden on “Inference from Silence” 1995 Cr.L. Rev. p 602). An accused may have been silent if he felt that the prosecution case was weak. He may have remained silent because his lawyer had asked him to remain silent.
It is again not clear what Lord Mustill in the House of Lords or later the European Court meant in stating that a prima facie case must first be established by the prosecution before any inference is drawn from the silence of the accused (see Murray vs. DPP (1993) Cr. App. Rep. 151 (H L.) and (1996) 22 EHRR 29). In the same judgment in the House of Lords, Lord Slynn used the words “clear prima facie case” and Kelley J in R vs. Murphy (NICA Unrep. 2-4-93), used the words “strong prima facie case”. It is again not clear whether the inference that may be drawn by the court against an accused should relate to the specific facts or whether it could be a general inference about the guilt of the accused. But, Lord Mustill said that sec. 35 could apply to one issue and may not apply to other issues. It is not clear how this can be done in practice. In England, an accused may, in fact, rely on sec. 1(f)(ii) of the Criminal Evidence Act, 1898 and contend that he does not want to testify because of the risk of cross examination. What would happen to that right is not clear. For example, in R vs. Barkley (NICR, Nov. 27, 1992) the accused refused to say anything because he feared that the co-accused may threaten him if he pointed out that the co-accused was the really guilty person. Could it then be said that even in these circumstances, it was a fit case, to draw an inference against the accused, because he remained silent?
Silence can always be consistent with innocence – the accused might remain silent because of shock, confusion, embarrassment, a desire to protect another person or to avoid reprisals, or in order to conceal some other improper conduct of some other person or it may be his personal trait to generally be silent or he may be having a low I.Q. or there may be a problem of language or literacy; there may be drug dependency; he may not have understood the caution administered by the police; he may not have realised that certain facts known to him would prove his innocence; or as already stated, he may have remained silent because of a bona fide advice by a lawyer. An accused cannot be punished because of a wrong advice of a lawyer. In England it is also curious that except sec. 35 the other provisions, namely sec. 34, 36 and 37 even apply to children and those mentally ill or handicapped. What is to happen to the right to seek legal advise as permitted under sec. 58 of the Police and Criminal Evidence Act, 1984 ?
These questions have still not been answered satisfactorily. Supposing an accused, when questioned at the trial, answers “I do not know” or “it is not true”, can an inference be drawn against him on the ground that the above words amounted to silence? If not, is there any difference between his verbal denial and his silence?
As already stated, initially the encroachment into the right to silence started with the Criminal Evidence (Northern Ireland) Order, 1988 during times when terrorist activities started on a big scale in Ireland. The Law Revision Committee had earlier felt in 1972 that such an encroachment was necessary in the law relating to silence, in the case of suspected terrorists, serious crimes of armed robbery and in regard to businessmen suspected of sophisticated offences of serious fraud (see 11th Report on Evidence (1972) by the Criminal Law Revision Committee (Cmnd. 4991, para 21 (v) and 30) and Report of Fraud Trials Committee 1986 (para 2.32). A law which was proposed to tackle terrorism in Ireland, came to be accepted in England in 1994 and applied to all cases of crimes where an accused would choose to remain silent.
In England, it has been lamented that the Government had brought the 1994 changes on the basis of the 11th Report of 1972 of the Criminal Law Review Committee even though two other Royal Commissions had recommended that the right to silence could not be encroached upon. (see Report of the Royal Commission on Criminal Procedure (Cmnd. 8092, 1981) paras 4.47 and 4.53 and the Report of the Royal Commission on Criminal Justice, Ch.IV, paras 20-25. (ibid, 1995 Crl. L. Rev. p. 4).
As to when a Court can say that a prima facie case has been proved and as to when a Court can say it has sufficient evidence of the accused having been advised of his right to call an attorney, these matters are capable of becoming serious issues in Indian courts. If the accused and the lawyers are also to be cross examined in India, as to what advise was given, there would be more confusion. It, therefore, appears obvious not to go by the changes of 1994 made in the English law. Otherwise, there will be more litigation, more uncertainty and more arguments for the defence and perhaps more acquittals in India. In fact, in Condron’s case, the European Court has referred to several judgments of the Court of appeal in England between 1994 and 2000 and the said judgments reveal that the English law has become more uncertain after 1994..
There are also several articles written by leading jurists published in the Criminal Law Review (UK) and other journals right from 1994 referring to the adverse consequences and serious problems that have crept into English law on account of these new changes.
In New South Wales, though the prosecution is expressly prohibited from commenting to the jury on the fact that the defendant did not give evidence, the judge and any party (other than the prosecution) may comment to the jury if the defendant does not adduce evidence. However, there are restrictions in the nature of comments which are permitted. Any suggestion that the defendant did so because of a belief of guilt is prohibited.
S.20. (1) This section applies only in a criminal proceeding for an indictable offence.
(2) The judge or any party (other than the prosecution) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
Under sections 12 and 17, the defendant is a competent but not a compellable defence witness. In spite of the prohibition on prosecution comment, it can happen that the prosecution may refer to the judicial comment that the defendant remained silent. The prosecutor has however to take care to see that he is not adopting the judge’s comment as his own.
The question as to the limits of the right to silence indeed arose in Weissensteiner vs. The Queen (1993) 178 Com Law Rep 217. In that case, which arose from Queensland, by majority of four against three, Mason CJ, Brennan, Deane, Dawson and Toohey JJ upheld the trial judge’s direction to the jury that an inference of guilt could be drawn if the defendant elected not to give evidence about facts which must have been within his special knowledge. They further held that adverse inference could be drawn from a defendant’s election not to testify where the evidence established a prima facie case, and that the “silence” could then go into the evaluation of the evidence before the court. The majority, however, admitted that mere failure to testify, was not evidence of guilt and that silence could not fill up gaps in the evidence. The judge was bound to inform the jury that the defendant was entitled to remain silent and that there could be good reasons for his silence which was unrelated to his guilt.
As stated earlier, the above case arose from Queensland where, the relevant statute did not contain any prohibition against comment. There was no section corresponding to sec. 20 of the New South Wales law.
In the same case, the majority quoted some early English rulings to the effect that the right to silence was always part of the common law, both in civil and criminal cases, that a person who could be presumed to have knowledge of some facts, must speak out and if not, that could go against him. An earlier decision in Australia, namely, Petty vs. Queen: (1991) 173 Com L.R. 95 was distinguished. (In Petty, it was decided that, at trial it was not permissible to suggest that the accused’s exercise of the right to silence before trial, could provide a basis for inferring consciousness of guilt or for inferring that he was aiding a defence newly invented which he failed to mention earlier.) It was observed that Petty did not determine whether it was permissible for the trial judge to instruct the jury that an inference available from facts proved by the Crown could be drawn more safely when the accused elected not to give evidence on relevant facts which the jury perceived to be within the personal knowledge of the accused.
The principles laid above, together with the exceptions referred to, leaves one absolutely confused. They, in fact, appear to be absolutely contradictory.
Brennan and Toohey JJ gave a separate judgment concurring with Mason CJ. They referred to sec. 3 of the Criminal Law Amendment Act, 1892 (Q) which made a person accused of an indictable offence and the wife or husband of every accused person, a competent but not a compellable witness. In 1961, this provision was carried into sec. 618A of the Criminal Code. In 1977, sec. 8 of the Evidence Act, 1977 (Q) reproduced, with some variations, the earlier enactments. In several jurisdictions in Australia, similar laws precluded the making of any comment by the prosecution (Evidence Act, 1906 (West Australia); sec. 85(1)(c) of evidence Act, 1910 (Tasmania); R 18(1)(II) Evidence Act, 1929 (South Australia); S 74(1) Evidence Act, 1971 (ACT). In some instances, the statutes prohibited comment by the Judge (sec. 407(2) Crimes Act, 1900 (NS Wales); s. 9(3) of Evidence Act 1939 (NT); s. 399(3) Crimes Act, 1958 (Victoria), on the failure of an accused person to testify. No such provision was found in the Queensland statute.
We may point out that no provision from any Charter or Bill of Rights which guarantees a right against self-incrimination has been adverted by the majority in the above Judgment.
In our view, the minority judgment is more consistent with the right against self-incrimination while, the majority judgment of Mason CJ and the other concurrent judgment contain mutually contradictory passages. The majority had no occasion to refer to any constitutional guarantee like Art. 20(3) of our Constitution nor to any international convention such as the ICCPR. As stated earlier, any trial Judge will find it extremely difficult to apply the exceptions to any given set of facts. The majority view is likely to lead to more litigation. Latter cases in Australia are R vs. O.G.D. (1998) 45 NSW CR 744, RPS vs. The Queen 2000 HCA 3, have also not been able to lay down the law in clearer terms.
Another unfortunate fact that has to be noted so far as Australia is concerned, is that the right of the defendant to make an unsworn statement at trial has been abolished in New South Wales in 1994, although the right still exists in some residual trials. Unsworn statements have now been abolished in all Australian jurisdictions. According to several jurists, this is yet another serious infraction of the right of an accused to speak, in case he wants to speak.
“5(a) In addition to the existing notice requirements for alibi-evidence and substantial impairment by abnormality of mind, whether the defence, in respect of any element of the charge proposes to raise issues in answer to the charge, (e.g. accident, automatism, duress, insanity, intoxication, provocation, self-defence; in sexual assault cases, consent, a reasonable belief that the complainant was consenting, or that the defendant did not commit the act constituting the sexual assault alleged; in deemed supply cases, whether the illicit drug was possessed other than for the purpose of supply; cases involving an intent to defraud, claim of right.
(a) A discretion to refuse to admit material not disclosed in accordance with the requirements.
(b) A discretion to grant an adjournment to a party whose case would be prejudiced by material introduced by the other party which was not disclosed in accordance with the requirement.
(c) In jury trials, a discretion to comment to the jury or to permit counsel to comment, subject, if appropriate, to any conditions imposed by the trial Judge.
It appears to us that while the N.S.W. Law Commission has not recommended the incorporation of provisions similar to sections 34, 36 and 37 of the English Act of 1994, it has however made recommendations to require the accused to disclose his defence in several respects and upon the failure to so disclose, make adverse comments. Both the prosecution and the Judge are permitted to comment on the refusal of the accused to speak. In our view the above restrictions on the right to silence do not amount to a fair due process and further the jury and the Court cannot be allowed to take the silence into account before arriving at a finding that the prosecution has established guilt of the accused beyond reasonable doubt.
The Commission, no doubt, refers to a distinction between the silence at the time of questioning by the police, when no charges are framed and to the right at the trial, after charges are framed and states that silence at the stage of interrogation of police cannot have the same importance as silence at the trial, in as much as at that stage, there is no allegation or evidence. At the stage of interrogation, the suspect may remain silent because things are not clear. At the stage of trial, there is a charge and there is evidence and therefore there is less chance of a shock or confusion or inadequate preparation to answer the questions. Even so, it does not preclude silence at the stage of interrogation being taken into account by the Judge or the Jury.
As already stated, we are of the view that the above procedure is not a fair procedure. The law relating to prosecution in Australia, in our view, does not conform to the minimum standards prescribed by the ICCPR. Unfortunately, even the right of the accused to speak out has been abolished.
We shall next refer to the law in England and Canada, which is absolutely in favour of the right of the accused to remain silent.
In The United States, the Fifth Amendment relates to the fundamental right against self incrimination and contains, more or less, the same language as in Article 20(3) of our Constitution. In fact, there is a federal statute of 1878 which declared that it would be competent for an accused to give evidence on his own behalf but that his failure to do so shall not be subject to any unfavourable inference against him. Initially, in Adamson vs. California (1947) 332 US 46, the question relating to the right to silence came to be considered. The majority did not refer to the Fifth Amendment. But the minority laid down, while referring to the Fifth Amendment, that the right to silence was absolute in US. Subsequently, in Griffin Vs. California (1965) 380 US 609, the Supreme Court of United States refused to permit prosecuratorial or judicial comment to the jury upon a defendant’s refusal to take the ‘stand’ in his own behalf, because such comment was a “penalty imposed by courts for exercising a constitutional privilege” and it “cuts down on the privilege by making its assertion costly”. The penalty “needlessly encouraged” a waiver of the defendant’s Fifth Amendment right to plead not guilty. The Court has stated that the defendant has an absolute right not to take the “stand” and that no adverse inference of guilt can be drawn if the defendant exercises his right to silence. An innocent defendant may want to avoid taking the “stand” because he feels that he is likely to perform badly, being uninformed about the law as compared to an experienced prosecutor who is skilled in the artificial rules governing court rooms and that the prosecutor may be able to trip him up.
However, American courts, have laid down a different principle, namely that, at a latter stage the silence of the accused can be taken into consideration by the court while deciding about the quantum of punishment. Such questions arise during plea bargaining. The Court said that the pressure to take the ‘stand’ in response to the ‘sentencing issue’ was not so great as to impair the policies underlying the self-incrimination clause. Similarly a notice by defendant regarding a plea of alibi does not offend the right against self-incrimination. (see “The Constitution and the Criminal Procedure, First Principles” by Prof. Akhil Amar, Yale University, USA).
Even in Miranda Vs. Arizona (1966) 384 US 436, it was held that the police have to give a warning to the suspect and that the suspect has a right to remain silent. He has a further right to the presence of an attorney during questioning. It is also important to note that the US Supreme Court has nowhere laid down that on account of the silence of the accused, an adverse inference can be drawn or that the silence can be treated as a piece of corroboration for inferring of guilt.
We shall next refer to the judgment of Canadian Supreme Court in R Vs. Noble (1997) (1) SCR 874. The majority in that case held that the right to silence is absolute and the silence of an accused cannot lead to any adverse inference against him nor be used for the purpose of arriving at a finding of guilt beyond reasonable doubt.
Section 11(c) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has a right not to be compelled to be a witness in proceedings against him in respect of an offence. Section 7 of the Charter also states that every person has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) codifies the common law presumption of innocence and the right to a fair trial.
“The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build a case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence. Moreover, the presumption of innocence is respected, in that it is not incumbent on the accused to defend him – or her – self or face the possibility of conviction on the basis of his or her silence. Thus a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict. On the other hand, if there exists in evidence a rational explanation or inference that is capable of raising a reasonable doubt about guilt, silence cannot be used to reject this explanation”.
It will thus be seen that according to the Canadian view it would be an error of law if the court directs the Jury to take into consideration the silence of the accused for arriving at a decision on the guilt of the accused. On the other hand, we have seen that the English view and the view of the European Court particularly in Condron’s case is just the opposite. It is held there that the jury can be asked to take the silence into consideration for arriving at a decision on the guilt of the accused.
It is very interesting to note that in China, the latest policy is to introduce the right to silence into its criminal jurisprudence. Such a regulation has been introduced recently in the procuratorates in Shenyang, Dalian and other cities.
“Procurators should prosecute suspects based on proof other than a confession in criminal cases, as announced by a procuratorate in Fushun of northeast China’s Liaoning Province in a newly-issued regulation.
The regulation guarantees people’s right to keep silence and entitles suspects to defend himself against accusations or keep silence during a criminal interrogation.
It is the first time for China’s judicial system to officially adopt right to keep silence for suspects, marking the country’s progress in protection of human right and freedom of the people.
According to the regulation, law officers will give no credit to confession, and a conviction will be based on other impersonal and reliable proof, explained by Yang Xiaodong, researcher with the Research Office of Liaoning Provincial People’s Procuratorate.
In spite of its subjectivity, a confession has been taken as the major source of proof in trying criminal cases in China. The right to silence application is believed to help eliminate inquisition by torture or extorting a confession.
The regulation practically admits the presumption of innocence and therefore has brought a radical change to the traditional judicial concept in the country, said Yang.
The presumption of innocence means that a suspect is supposed innocent when the interrogation begins and will not be convicted unless there is proof to prove his guilt. Jiang Xiaoyang, a lawyer with a Ph.D. degree from Beijing University, said that some real criminals might escape punishment after application of the presumption of innocence and right to silence, but that is the price the judicial system will have to pay in protection of innocent people.
It reflects the respect for human beings’ dignity and spiritual freedom, said Jiang.
Judiciary justness has always been the focus of media and National People’s Congress (NPC), the country’s highest legislative body. China’s top leaders have also pledged many times to curb unlawful acts inside the judicial system.
So far, the concept of right to silence has been introduced and implemented in procuratorates in Shenyang, Dalian and otherk cities in the province.
Chen Jie, judge in Dalian Intermediate People’s Court said that though the right to silence is only at the beginning in China, it will trigger a series of innovations to the country’s legal system.
China has been making reforms on its legal system in hope of protecting the citizens’ rights and interests in an all-round way and ensures judicial fairness.
China established a new Criminal Law in 1996 and made amendments to the law in 1997 focusing on rescinding illegal privileges and assuring citizens’ rights.
it was further interpreted that the procedure envisaged by Art. 21 is a procedure which must be just, fair and equitable.
“Sec. 161(2): Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have tendency to expose him to a criminal charge or to a penalty or forfeiture”.
The above provision also creates a presumption against guilt.
In other words, sec. 161, 313 and 315 raise a presumption against guilt and in favour of innocence, grant a right to silence both at the stage of investigation and at the trial and also preclude any party or the court from commenting upon the silence. This is quite contrary to what the Australian law permits. Under the Australian law the Court can make a comment on the silence but the prosecution cannot make any comment. Now the New South Wales Law Commission has, as stated earlier, recommended amendment of the law, to permit even the prosecution to comment on the silence of the accused.
Our law in the Code of Criminal Procedure, 1973 is consistent with clause (3) of Art. 20 of the Constitution and Art. 21.
“To the author, it seems that it is due to oversight that the legislature did not omit the italicised words, while inserting sec. 342A in 1955; for, after the insertion of sec. 342A, the italicised words have, at least become anomalous. They are inconsistent with proviso (b) of sec. 342A; for, the object of both sections 342 and 342A as already explained is to offer an opportunity to explain anything incriminating in the evidence against him. If, therefore, no inference may be made from the failure of the accused to take hold of the opportunity offered under sec. 342A by volunteering to testify on his own behalf, why should such inference be permissible when the court questions him for the same purpose?
“To draw an adverse inference from the refusal to testify is indeed to punish a person who seeks to exercise his right under Art. 20(3). Just as no inference of guilt can be made from the fact that the accused is invoking the protection of Art. 20(3), so no inference of guilt can be made from the mere fact that he refuses to answer or to make a statement”.
“It is now clear, therefore, that the Court cannot draw any adverse inference against the accused from his silence or refusal to answer court questions, under any circumstances”.
A survey of the current law in various countries reveals that in USA, Canada and India in view of the constitutional provisions against self incrimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused. It is only in UK that certain deviations have been made recently. The UK law of 1994 has not yet been tested under the Human Rights Act, 1998. No doubt, two cases have gone before the European Court and the said Court has laid down some conditions which must be satisfied before the Court or jury could take into consideration the silence of the accused. Firstly, a prima facie case as to guilt has to be made out by the prosecution. Secondly, the suspect or the accused must have been given an opportunity to call an attorney when he was questioned. This has led to the further amendment in the UK law in 1999 permitting the suspect or accused to call for an attorney’s assistance. But then fresh problems have arisen where the accused has relied upon the lawyer’s advice to remain silent. In such cases, the Courts are resorting to the cross-examination of the accused as well as his lawyers. A lawyer’s wrong advice can lead to serious prejudice to the accused and this cannot be permitted. In the light of the above complications, criminal trials have become more complicated and the accused is having more grounds to question a verdict of guilt. In our view, it may not therefore be wise to introduce similar changes in our system. In fact, the New South Wales Law Commission has clearly recommended that provisions like sections 34, 36 and 37 which permit the Court or jury to draw inferences from the silence of the suspect or accused, should not be introduced into the statute in New South Wales. But, unfortunately, N.S.W. Law Commission has recommended that the accused can be compelled to disclose various facts relating to his defence failing which the prosecution and the Court can make comment. In our view, this does not amount to a fair trial and indirectly violates the right against self-incrimination. The Australian Courts have not referred to any constitutional prohibitions.
On the other hand, the American and Canadian Courts have not permitted any inroads into the right to silence. While English and European Courts and the Australian Courts permit the jury and the Courts to take the silence into consideration before arriving at a finding of guilt beyond reasonable doubt,- of course, where a prima facie case is made out, and the accused is informed of his right to an attorney – the American and Canadian Courts prohibit silence being taken into consideration before arriving at a finding of guilt beyond reasonable doubt. It is only after the Court comes to a finding of guilt beyond reasonable doubt, that the accused can be asked if he has any explanation.
It is interesting that China has introduced a regulation in some regions which entitles an accused to remain silent. It is indeed rather surprising that when China is introducing this principle into its laws some democracies like UK & Australia are introducing laws deviating from the old tradition as to right to silence.
The law in India appears to be same as in USA and Canada. In view of the provisions of clause (3) of Art. 20 and the requirement of a fair procedure under Art. 21, and the provisions of ICCPR to which India is a party and taking into account the problems faced by the Courts in UK, we are firmly of the view that it will not only be impractical to introduce the changes which have been made in UK but any such changes will be contrary to the constitutional protections referred to above. In fact, the changes brought about in the Criminal Procedure Code, 1973 leaving out the certain provisions which were there in 1898 Code, appear to have been the result of the provisions of clause (3) of Art. 20 and Art. 21 of our Constitution.
We have reviewed the law in other countries as well as in India for the purpose of examining whether any amendments are necessary in the Code of Criminal Procedure, 1973. On a review, we find that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Art. 20(3) and Art. 21 of the Constitution of India. We recommend accordingly.

matches:
Art. 20
Art. 21
Art. 6
Art. 6
Art. 6
Art. 20
Art. 21
Art. 20
Art. 21
Art. 20
Art. 20
Art. 20
Art. 21
Art. 20
Art. 21
Art. 20
Art. 21


III. Whether the trial court erred in not abating portions of Fathers child support.
We affirm in part, reverse in part, and remand.
The record reveals that Father was divorced from Kayla R. Thurman (Mother) on February 9, 1990. At the time of the dissolution, Mother and Father had two minor children, S.T. and A.T. Pursuant to the original decree of dissolution, Father was to pay $143 per week in child support. On June 28, 1991, the trial court found that Father owed an arrearage of $325. Fathers support payments remained at $143 per week until September 13, 1991, when his obligation was reduced to $110 until November of 1999. On November 19, 1999, the trial court increased Fathers payments to $182 per week for a period of six weeks, after which the amount increased to $255 per week.
On January 5, 2001, Father filed a petition to modify custody and child support. A hearing on this petition was held on May 3, 2001. At this hearing, Mother made arguments and asked questions regarding Fathers lack of payment of his child support and the resulting arrearage. Father objected to several of these questions. Mother also attempted to introduce into evidence a worksheet prepared by her together with records from the court clerks office showing the amount of Fathers arrearage. Father objected to the introduction of this evidence. The court overruled Fathers objection and indicated that it would grant the parties further time to respond to the arrearage issue.
On January 29, 2002, the trial court issued an order wherein it found Father to be in arrears on his child support payments in the amount of $4,986. The trial court ordered Father to pay a total of $225 per week, with $33 per week going toward the arrearage. Regarding visitation, the trial court determined that the parties should follow the Indiana Parenting Time Guidelines.
Father filed a petition to submit omitted evidence and/or motion to correct error on February 26, 2002. The trial court failed to respond to this motion, which was therefore deemed denied on April 12, 2002. See Ind. Trial Rule 53.3. Father filed a notice of appeal on May 8, 2002.
Generally, decisions regarding child support are left to the sound discretion of the trial court. Thacker v. Thacker, 710 N.E.2d 942, 944 (Ind. Ct. App. 1999). We will not disturb a trial courts order modifying child support absent an abuse of discretion or a determination that is contrary to law. Id. We also note that Mother has failed to file an appellees brief. In such a case, we need not undertake the burden of developing arguments for the appellee. Railing v. Hawkins, 746 N.E.2d 980, 982 (Ind. Ct. App. 2001). Applying a less stringent standard of review, we may reverse the trial court when the appellant establishes prima facie error. Id. In this sense, prima facie means at first sight, on first appearance, or on the face of it. Id.
Father claims that the trial court erred when it allowed Mother to introduce evidence regarding the amount of child support arrearages he owed. The admission of evidence is entrusted to the sound discretion of the trial court. Potts v. Williams, 746 N.E.2d 1000, 1007 (Ind. Ct. App. 2001). An abuse of discretion is found where the trial courts decision is against the logic and effect of the facts and circumstances before the court. Id.
Father claims that neither he nor his counsel were prepared to address the issue of any arrearage. Father argues that he had no notice that the issue of his arrearage might come up at the hearing on his motion to reduce his child support payments and that the trial court violated his right to due process when it heard evidence regarding the arrearage issue. In support of his position, Father relies upon Indiana Code § 34-47-3-5 (Burns Code Ed. Repl. 1998), which sets forth the notice requirements for one charged with indirect contempt. In the present case, however, there was no contempt petition filed, nor does the record reveal that Father was ever held in contempt. Therefore, the statute is inapplicable.
Father seems to argue that the only proper way to determine if there is an arrearage is through a contempt citation. To be sure, a contempt citation is one means of determining an arrearage. See Pettit v. Pettit, 626 N.E.2d 444 (Ind. 1993) (noting that, in Indiana, child support obligations have long been enforceable by contempt). However, such is not the only appropriate way to enforce child support obligations. See Ind. Code § 31-16-12-1 (Burns Code Ed. Supp. 2002) (listing means available to enforce child support orders); Ind. Code §§ 31-16-2-1 through 31-16-2-8 (Burns Code Ed. Repl. 1997) (governing actions for child support); Kuhn v. Kuhn, 273 Ind. 67, 402 N.E.2d 989 (1980) (plaintiff filed suit against ex-husband seeking judgment for accrued child support with no mention of contempt); Haton v. Haton, 672 N.E.2d 962 (Ind. Ct. App. 1996) (dealing with a petition to determine and reduce delinquent child support to judgment with no mention of contempt), trans. denied.
We conclude that, if a party petitions the trial court to modify a child support order, the entire issue of child support, including arrearages, may be heard without unfair surprise to the party seeking the modification. Father should have been aware that all issues relevant to his support payments, including any arrearage, might be brought before the trial court upon his motion. Cf. Tatum v. Tatum, 773 N.E.2d 371 (Ind. Ct. App. 2002) (issue of modification of child support was properly before the trial court although neither party requested a partial reduction in support where father petitioned for termination of support); In re Marriage of Johnson, 625 N.E.2d 1331 (Ind. Ct. App. 1993) (where mother in her petition requested all other relief, trial court had power to award back child support even though mother did not specifically request to recover delinquent support in her petition); Huffman v. Huffman, 623 N.E.2d 445 (Ind. Ct. App. 1993) (issue of visitation was properly before trial court and mother had notice that a change in visitation might result upon Fathers petition to modify custody because visitation is inextricably linked to custody and a change in custody will often necessitate a change in visitation), trans. denied; OCampo v. OCampo, 597 N.E.2d 1314 (Ind. Ct. App. 1992) (recognizing that, under limited circumstances, modification of support is permissible even in the absence of a petition therefor).
Here, the issue of child support arrearage was linked with the issue of Fathers petition to reduce his child support payments. Indeed, this issue is but a part of the broader issue of child support. Father knew that he was behind in his support payments and petitioned to reduce his support payments. Therefore, we cannot say that he was unfairly surprised when Mother introduced evidence as to the amount of his arrearage. Father has failed to demonstrate prima facie error in the trial courts admission of evidence regarding his child support arrearage.
Father claims that the trial court erred when it included in its calculation of arrearage delinquent child support for which the applicable statute of limitations had expired. Father cites Kuhn, which held that the general statute of limitations, Ind. Code § 34-1-2-3, now found at Ind. Code § 34-11-1-2, was applicable to actions to recover accrued, court-ordered child support payments. 273 Ind. at 72, 402 N.E.2d at 991. This statute states that, [a] cause of action that . . . arises on or after September 1, 1982[,] and . . . is not limited by any other statute[,] . . . must be brought within ten (10) years. I.C. § 34-11-1-2 (Burns Code Ed. Repl. 1998). Father also cites Haton, which followed Kuhn, and applied the general statute of limitations to an action to recover accrued court-ordered child support. 672 N.E.2d at 963. The Court in Kuhn held that the statute of limitations begins to run on each installment of child support as it becomes due and unpaid. 273 Ind. at 72, 402 N.E.2d at 991. Applying the rule of these cases, Father claims that the trial court improperly included in its arrearage calculation payments which had become due and unpaid more than ten years ago.
Thus, a more specific statute of limitations has been enacted to cover actions to enforce child support obligations.
Two general rules apply with respect to the enactment of a new statute of limitations: (1) the period of limitation in effect at the time the suit is brought governs in an action even though it may lengthen or shorten an earlier period of limitation; (2) however, a new statute of limitations cannot revive a claim which was foregone under the prior statue of limitations before passage of the new one. Connell, 725 N.E.2d at 506.
In the present case, Fathers oldest child support obligations became due and unpaid in 1990. However, prior to the expiration of the then-applicable general statue of limitations, our General Assembly enacted what is now I.C. § 34-11-2-10, which specifically governs actions to recover delinquent child support obligations. Therefore, according to the rule set forth above, I.C. § 34-11-2-10 applies to the present case whether it lengthens or shortens the earlier applicable period. Pursuant to I.C. § 34-11-2-10, any action to enforce a child support obligation must be commenced not later than ten years after the eighteenth birthday or the emancipation of the child who is the object of the support order, whichever occurs first. Here, at the time of the hearing, S.T. and A.T. were fourteen and twelve years old respectively, and there is no suggestion that either child has been emancipated. Therefore, the ten-year period set forth in I.C. § 34-11-2-10 has not even begun to run in the present case, and the trial court did not therefore err in calculating Fathers child support arrearage.
Father claims that the trial court erred when it failed to abate his child support payments during periods of extended visitation. As set forth in the decree of dissolution, Father was to have no less than one month of summer visitation with S.T. and A.T., and during such visitation, Fathers support was to abate. (A-55). On November 24, 1999, the court entered an order increasing Fathers child support. (A-39, 46). Included in this order was a provision that any time that [Father] shall have the minor children with him for seven (7) or more consecutive days, the support shall abate by one-half (1/2). Appendix at 47. In its order on Fathers petition to modify custody and child support, which is the subject of the present appeal, the trial court acknowledged this abatement provision, stating, Part of that order [of November 1999] included an abatement of ½ of the support for any period of visitation of 7 days or more. Appendix at 39. In the next sentence, however, the trial court stated that it ha[d] received no evidence to require an abatement calculation. Id. It is this conclusion that Father challenges.
At the hearing on Fathers petition to modify custody and child support, Father testified regarding his summer visitation with his children, [Mother] usually told me when I had to have them. I got them for a month in the summer. Transcript at 8. Father also testified that these visitations went well. Mother likewise testified that, prior to the filing of Fathers current petition, that Fathers visitations had gone well. Mother further testified that Father had visitation with the children every other weekend, every other holiday and four weeks in the summer. Transcript at 41.
Thus, there was uncontradicted evidence before the trial court that Father had extended visitation with the children in the summer for a period of four weeks to one month. Yet the trial court concluded that it had received no evidence requiring an abatement. We conclude that Father has established prima facie error upon the part of the trial court for failure to abate his child support for the summer visitation to which both parties testified. We therefore reverse the trial court as to this issue and remand with instructions to calculate any abatement that may be due to Father pursuant to the trial courts orders for any period of extended summer visitation.
The order of the trial court is affirmed in part, reversed in part, and remanded for proceedings not inconsistent with this opinion.
BAILEY, J., and MATHIAS, J., concur.
Footnote: Indeed, when asked if ten days would be sufficient additional time to submit arguments regarding the arrearage, Fathers trial counsel indicated in the affirmative.


text: Defendant contends Investigator Capitosti’s failure to identify the CI as a paid informant undermines the reliability of the CI and Judge Jolly’s finding of probable cause, citing the Georgia Court of Appeals’ decision in Lyons v. State, 258 Ga. App. 9, 572 S.E.2d 632 (Ga. App. 2002). (Doc. no. 34, p. 10; doc. no. 46, p. 4.) The omission is not fatal. As one Court within the Eleventh Circuit has recognized, “‘It would have to be a very naïve magistrate who would suppose that a confidential informant would drop in off the street with . . . evidence and not have an ulterior motive. The magistrate would naturally have assumed that the informant was not a disinterested citizen.'” United States v. Taylor, No. CR 14-0303-CG, 2015 U.S. Dist. LEXIS 138746, 2015 WL 5923580, at *3 (S.D. Ala. Oct. 12, 2015) (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988)); see United States v. Shirley, No. 1:10-CR-167-JEC/AJB, 2011 U.S. Dist. LEXIS 93517, 2011 WL 3704940, at *16 (N.D. Ga. July 7, 2011), report and recommendation adopted, No. 1:10-CR-167-JEC, 2011 U.S. Dist. LEXIS 93505, 2011 WL 3687577 (N.D. Ga. Aug. 22, 2011) (“[C]ourts have held that a warrant does not violate Franks when the affidavit used to procure the warrant omitted the fact that an informant was paid for his cooperation.”) (citations omitted); see also United States v. Ofshe, 817 F.2d 1508, 1513 (11th Cir. 1987) (holding omission of CI’s criminal convictions and incarceration did not invalidate search warrant); United States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983) (holding omission of prior felonies and bad acts did not destroy probable cause). Therefore, probable cause exists even though Investigator Capitosti failed to include the CI was a paid informant in his affidavit. See Shirley, 2011 U.S. Dist. LEXIS 93517, 2011 WL 3704940, at *16 (“Therefore, even if the issuing judge had been told that CS# 2 was paid after securing cocaine from [Defendant], probable cause still existed.”).

matches: v. v. v. v. v. v.