The Right to Silence

Posted on 17 September 2012

The people of NSW have always been afforded the protection that they will remain innocent until proven guilty in the eyes of the court. This principle is derived from the Westminster system and has been enshrined in common and statute of all Australian jurisdictions for centuries. It has been a fundamental principle in the criminal justice system for allowing an accused person the right to remain silent. This applies in both pre trial interviews by police and in a trial.

The right to silence has been supported by the uniform Evidence Act of 1995. Under section 17 of the uniform Evidence Act 1995, defendants are not considered to be competent witnesses for the prosecution and section 20 restricts the comment that prosecutors, any co-accused and judges are allowed to make about the silence of the accused in indictable offences. However, section 20 does not prevent the jury from drawing inferences from the failure of the accused to testify.  

Under current laws juries are instructed by trial judges not to draw an adverse inference from in circumstances where a defendant attempts to present evidence at trial having previously failed to divulge the information which would have assisted police with their enquiries.  

On 15 August 2012, the NSW Premier, the Honourable Barry O'Farrell, announced plans to amend current provisions within the Evidence Act in an attempt to curtail incidences where organised crime gangs hide behind the right to silence. The proposed amendments will allow juries to make an adverse finding against alleged criminals refusing to cooperate with investigating police but who later produce “evidence” at trial. 

The proposed new laws will include warnings to people advising their defence may be harmed in court should they refuse to give information to police about a crime. Currently the caution police give is:  "You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?"

However, this is to be amended to:  "You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?"

The Law Society has been extremely critical of the NSW Governments decision to amend the Evidence Act without consulting with relevant stakeholders in the criminal justice field or with the people of NSW. President Justin Dowd has gone as far as to assert that he is unaware of any evidence that a change in the law will achieve the desired objectives of the Government stating that:

"the people it would affect least will be career criminals, who will know they should stay silent anyway. The people it will affect most are those that are charged for the first time, those who are nervous or panicked, those who have a disability, language difficulties or other disadvantages".

In addition, he has raised doubts that the new law will actually assist police as it will only apply where a person is actually charged with an offence and not in cases where the "code of silence" applies, which is a completely different issue to the right to remain silent. The strength of the Law Society's opposition to the new laws is unmistakable as they have called upon the government to:

"rethink its stated position and to consult widely and genuinely before taking away the rights of the citizens of NSW. Any such change should only occur after rigorous, evidence-based research, and appropriate safeguards, are guaranteed".

The right to silence, a cornerstone of the criminal law justice system, will be undermined if the proposed amendment to the Evidence Act is passed by NSW Parliament. Any changes to this right have the potential to undermine a person's basic right of being innocent until proven guilty and are most likely to affect the most disadvantaged people throughout NSW. Careful consideration should also be given as to whether the proposed changes can even achieve their stated objective.

Dooley & Associates supports the Law Society of NSW’s stance on the matter and suggests that such radical changes to our criminal justice laws should only be made after proper consultation with all key stakeholders. Watch this space for further developments...