Silence is Not Golden: Adverse Inferences Drawn From Remaining Silent

By Tan Shi Hui Elena, Loo Tze Ting Dorothy Ann, Lim Min Li Amanda and Tan Pei Wei.

Section 261 of the Criminal Procedure Code gives the Courts the ability to draw adverse inferences from an accused’s failure to mention any fact that he may later rely on for his defence, after he has either been charged or informed that he may be prosecuted for an offence.[1] Such inferences are then “capable of amounting to… corroboration of any evidence given against the accused”.

The prejudicial effect of s 261 stems from the drawing of an adverse inference when the accused person is unfamiliar with the law. To achieve a more holistic understanding of s 261, this article will explore the rationale behind its enactment and analyse the impediments to fairness that have eventuated as a result of its implementation. It is humbly submitted that s 261 is in need of reform in order to better achieve transparency and clarify the lay misconception of what s 261 entails. Continue reading