Australia: Right to silence and presumption of innocence vs. efficiency of police investigations – proposed changes to law in NSW

In brief - Evidence Amendment (Evidence of Silence) Bill 2012 and proposed changes to right to silence

Amendments to section 89 of the Evidence Act 1995 (NSW) would allow juries and the judiciary in proceedings for serious indictable offences to draw an unfavourable inference against an accused who refuses or fails to mention facts when questioned by police, but later seeks to rely on those facts as evidence at trial.

Right to remain silent – proposed changes

In a society where Australians have been known to dial 911 instead of 000 and where the TV series Law and Order has become a decade-old staple, we have become all too familiar with the phrase "you have the right to remain silent".

That phrase may no longer be the same in NSW given the object and content of draft legislation introduced by the NSW government this month.

Amendments for serious indictable offences

The Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) seeks to amend section 89 of the Evidence Act to allow juries and the judiciary in proceedings for serious indictable offences (i.e. those offences punishable by imprisonment for life or for five years or more, like murder, rape or assaulting a police officer) to draw an unfavourable inference (i.e. an inference of guilt or adverse inference on a person's credibility) against an accused who refuses or fails to mention facts when questioned by police, but later seeks to rely on those facts as "evidence" at trial.

This is at odds with the current law, which provides that in a criminal proceeding, an unfavourable inference must not be drawn against a person who fails or refuses to answer one or more questions or respond to a representation when questioned by an investigating official.

Wording of cautions given by police in NSW

If the proposed Bill is passed, one of the most obvious changes will be in the wording of cautions given by police to suspects.

Consider this scenario. Stan, armed with a six-shooter, robs a bank and is nabbed by police before he can make a clean getaway. He is taken into custody for questioning.

Under the current law, before official questioning begins, police are required to caution Stan:

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?

Under the proposed Bill, the police caution to Stan is modified:

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?

What is the right to silence?

The right to silence is an expression used to describe a bundle of loosely related immunities:

  • a general immunity from punishment if a person refuses to answer questions or provide information
  • a particular immunity from being compelled to answer questions which might incriminate. Even investigative bodies like the Australian Crime Commission, which have the power to compel a witness to answer questions about their knowledge of criminal acts, cannot use self-incriminating evidence against that witness in subsequent criminal proceedings
  • a general immunity (subject to other legislative exceptions) from having to disclose evidence which will be relied upon by an accused person at trial
  • an immunity from adverse comments being made by a prosecutor if a defendant does not give evidence at trial

Three things you need to know about the proposed changes to the right to silence

  1. The proposed changes only apply to serious indictable offences (where penalty for imprisonment is 5+ years).
  2. The changes do not apply to people who, at the time of official questioning, are under 18 years of age or to people who have a cognitive impairment (intellectual disability, developmental disorder, neurological disorder, dementia, severe mental illness, brain injury).
  3. The changes would enable a judge or jury to draw an unfavourable inference against an accused who fails or refuses to mention a fact during the course of official questioning (i.e. by remaining silent) if two criteria are met:
    • the accused could reasonably have been expected to mention the fact in the circumstances existing at the time of the questioning
    • that fact is subsequently relied on by the defence in the proceedings

Limits to the ability to draw an unfavourable inference

The proposed changes to the right to silence provide that the unfavourable inference may only be drawn if before being questioned, a supplementary caution was given to the accused by the investigating official and the accused was allowed the opportunity to obtain legal advice about the effect of failing or refusing to mention a fact.

The changes provide that an unfavourable inference cannot be drawn if the inference of the undisclosed fact is the only evidence that the accused is guilty of the serious indictable offence.

What are the potential impacts of the Evidence Amendment (Evidence of Silence) Bill?

The Bill has ignited controversy among civil libertarians, who have argued that the presumption of innocence, notions of procedural fairness and the protection of individual liberty risk becoming casualties of restrictions to the right to silence.

Other commentators, particularly from law enforcement circles, have welcomed the proposed reform, arguing that modifying the right to silence for serious indictable offences will improve the efficiency of police investigations and help to crack down on crime by precluding criminals from using the right to silence as a tactical tool during criminal trials.

Parallels have been drawn to similar reforms implemented in the UK through the Criminal Justice and Public Order Act 1994 (Eng) (especially section 34, section 36 and section 37).

In my view, although the proposed reforms are well intentioned, they appear to overlook a number of important realities. These are listed below.

Right to silence typically not used by suspects

Australian research (Dixon 2006, NSW Law Reform Commission 2000) indicates that most people do not tend to use the right to silence. Most suspects either confess or maintain their denial during police interview, irrespective of police tactics.

On that basis, perhaps the perceived link between silence and organised criminals is overstated.

Further, the issue of whether to implement a restricted right to silence akin to the UK Act was considered and subsequently rejected in a 2000 report by the NSW Law Reform Commission. Have things changed so significantly that there is a need to revisit it?

CCTV, phone tapping, DNA and police search powers

Police investigations are relying more heavily on evidence collected before interview, such as CCTV, phone tapping and DNA, rather than on seeking to procure confessions in the interview itself.

This would suggest a need to focus on reform of police search powers and resources pre-interview, and less so on reform of the right to silence.

Legal advice to suspects before police questioning

The proposed reform indirectly raises the issue of whether the government should publicly fund an organised system of legal advice to suspects before police questioning is conducted – for example, having a solicitor on call to advise the suspect of the effect of remaining silent prior to official questioning.

Aside from the obvious cost involved, this may also delay the investigative process as the suspect has to consult a legal practitioner first.

In its current form, the Bill allows a defendant the opportunity to consult a legal practitioner about the effect of remaining silent, but this overlooks, for example, the practical problem of the availability of legal advice in more remote areas of NSW, and for people who suffer linguistic or cultural disadvantage by reason of their ethnic background.

Presumption of innocence and community pressure to obtain convictions

The issue is far from resolution. It is important that policy makers and legislators maintain a careful balance between safeguarding the presumption of innocence and an accused's right to a fair trial on the one hand, and countervailing community pressure to deliver results by reducing rates of serious crime and maintaining "law and order", on the other.

Antony Riordan
Commercial litigation

& Kyrren Konstantinidis

Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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