The rule of inference in criminal matters

Abstract

The primary objective of this dissertation is to examine the relative inference provisions found in the Criminal Code. Long before these provisions were formally introduced in the Criminal Code, the trier of fact already had the faculty to draw inferences from the accused’s pre-trial and trial silence. It is only natural, and hence a matter of common sense, that when circumstances arise which would require an explanation, and the defendant remains silent, the logical inference would be that the defendant did not make any disclosure because he, either did not have an answer or none that would stand up to scrutiny. Since the inference provision is inconsistent with the right to silence, it has to be subject to restrictions. Drawing on the developments in other jurisdictions and in the ECtHR, the local legislator felt the need to regulate the matter in an official way through the enacted provisions. These provisions brought about changes to the criminal trial process. Whereas prior to their introduction, the judge could not officially direct the jury towards the drawing of an inference, even if trial fairness was at the risk of being prejudiced, post-introduction he could direct the jury as to how to approach the evidence prior to drawing an inference. The dissertation will analyse whether in the prosecution of the guilty, there exists the appropriate balance between the rights of the accused and the interests of the community at large. In order to reach this aim the dissertation will be divided into seven chapters. The first chapter will provide an overall description of the rule of inference as it existed prior to the introduction of express inference provisions in the Criminal Code. The second chapter will discuss the changes made to the Criminal Code by virtue of Act III of 2002. The third chapter will analyse the Anglo-Welsh legislation and how it developed over the years. The fourth chapter will include a comparative analysis of the relevant Anglo-Welsh and Maltese provisions. The fifth chapter will discuss the relevant provisions in other Commonwealth jurisdictions. The sixth chapter will explore whether the rule of inference impinges on the fundamental human rights of the accused. The final chapter will address the balance that the legislator intended to attain between the rights of the accused and the interests of society at large, and provide recommendations for changes to redress the balance.