Does NSW still have a Right to Silence?

By National Criminal Lawyers


Historically, the right of silence came about when individuals and society began to frown upon a practice that had developed in England in the early sixteenth century. In short, Star Chambers and Ecclesiastical Tribunals regularly resorted to torture and physical punishment to force confessions and admissions from defendants.

Consequently, the Common law developed core principles and rights that protected individuals from the oppressive use of state – and at that time – Church power. These core principles and rights have not only been recognised on a municipal level; rather, the right to silence has an international voice. Article 14 of the International Convention on Civil and Political Rights (‘ICCPR’) implants the universal notion of the right to a fair trial. No doubt, there is municipal law which contradicts international law. There is also municipal law which ‘appears’ to contradict international law, but in reality, do not. For example, section 34 of the Criminal Justice and Public Order Act 1994 (UK)(‘CJPO’), to which much scholarly literature has been focused on, has been criticized as breaching international law.

The right to silence is just that; a right. The concept itself holds no firm parameter nor can be defined in one specific axiom. Rather, commentators are in agreement that the right to silence encompasses a bundle of loosely related imunities, which cohesively combine together to produce an informal ‘right’.

The rationale behind the right to silence was confirmed by the High Court in Petty & Maiden v R. In that decision, the court stated that a person who believes – on reasonable grounds – that he or she is suspected of being a party to an offence is entitled to remain silent when questioned or asked to supply any information by any person in authority about the occurrence of an offence, the identity of the participants and the roles they played.

Further, the court held that central to the right to silence was that ‘no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information’. In the court’s opinion, drawing such an inference would, arguably, render this right ‘valueless’.

In Sorby v Commonwealth, the court stated that it is a ‘firmly established principle of the common law, for over 300 years, that no person can be compelled to incriminate himself’.

 Section 89A


Effective 1 September 2013, the new amendments introduced two laws. The first is the Evidence Amendment (Evidence of Silence) Act 2013 (NSW), and the second is the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 (NSW). In summary, the first limits the right to silence, allowing juries to draw an adverse (or unfavourable) inference against an accused who relies at trial upon a fact that was not mentioned at the time of official police questioning which the accused could reasonably have been expected to mention. The second law makes it compulsory upon both the defence and prosecution to outline their prospective cases weeks ahead of trial proceedings. In short, where the accused raises a different defence at trial to that previously relied upon, an adverse inference may be drawn. Further, where an accused remains silent on a relevant fact, and later relies on this during trial proceedings, an adverse inference may also be drawn. Modelled on the 1994 reforms in the United Kingdom, these amendments have been controversial. For the purposes of this paper however, only the first amendment (section 89A of the Evidence Amendment (Evidence of Silence) Act).

The Evidence Amendment (Evidence of Silence) Act 2013


On 1 September 2013 new laws following a spate of drive-by shootings in 2012-2013 were introduced by the O’Farrell government. These laws known as s89A The Evidence Amendment (Evidence of Silence) Act 2013 are ensuring that Lawyers are deliberately not showing up at police stations when their clients are arrested.

What is the effect of the new laws?


 Under the new laws, when someone is arrested, it may harm their defence if they fail to speak or to mention something they try to rely on later at trial. However, the NSW government included a condition in the new laws wherein the law cannot be applied unless the accused person has a legal representative present.

Lawyers as such are simply not showing up at police stations to assist their clients who are undergoing the police investigation processes.


What happens if a lawyer does come to the police station?


The new provisions only apply to offences carrying a maximum penalty of life imprisonment or a term of imprisonment of five years or more. It does not apply to a defendant under the age of 18 years. However, if it does apply, an adverse inference can be drawn about a fact not mentioned which is later relied upon in any future proceedings. As such any omission at the police station would invariably weaken any right to silence, otherwise held and may even ruin a defendant’s case especially wherein he or she later relies on an explanation not given at the police station.


What are the words of the special caution?


Under the changes, the special caution now reads: “It may harm your defence if you fail to mention something now that you later rely on at trial.” Before the laws were amended, the police caution given to those arrested read as follows: “You are not obliged to say or do anything unless you wish to do so.”


 How many cautions do the police have?


The police have several cautions. The caution in s89A is in addition to any other provisions relating to a person being cautioned before being investigated OR in other words the special caution if you are with a legal practitioner can be given in addition to any other caution usually given to suspect. Moreover, it can be given either before or after any other caution.


 What new issues now arise?


The special caution if given ruins the defendants unqualified right to silence. If given the omission to mention a fact that is later relied upon will be warned against on the basis that the suspect should have mentioned that fact at the time of questioning.

Depending on the undisclosed fact it may, or may not, undermine the defence case. A Magistrate or Judge will need to explain to the fact finder/Jury depending on the fact the available inferences which should be drawn.


What does the law society say?


Law Society’s criminal law committee head Pauline Wright is quoted as saying “We are helping by not turning up and that’s unfortunate. We would prefer to see the laws go back to the way they were. It worked better for the police as well as for justice,”


What does the NSW Law Reform Commission say?


In 2000, the New South Wales Law Reform Commission conducted a report called “The Right of Silence”. A portion of this report examined the perception of ordinary members of the public to the previous caution [not including the amendments]. It concluded that 60% of people felt that the caution was pressuring or threatening. Further, 80% of people felt that the second sentence of the caution, when read alone, was not only threatening, but confusing. Similarly, in Northern Ireland – where a similar caution to the British is used – research revealed that suspects do not comprehend the caution, and believe that the presence of a caution meant that they were under an added obligation to answer any questions proposed to them by police.[1] As David Dixon[2] and David Hamer suggest, introducing such a caution in Australia will only produce similar, if not identical, results. As a result, the same problems identified in the 2000 NSW Law Reform Commission report will emerge; (a) an increase in the uncertainty of the law, (b) an increase in the length, costs and complexity of trials, and (c) an increase in the number of appeals.[3] The New South Wales Bar Association concluded:


“There can be no doubt, that where a suspect takes part in an interview with police after the supplementary caution’ is given, it will be argued that the interview should be excluded-under the discretion under s I38 Evidence Act because of a breach of the International Covenant on Civil and Political Rights”.


 National Criminal Lawyers is fully versed of the changes brought in by the Evidence Amendment (Evidence of Silence) Act 2013.
For specific advice in relation to what the changes means to you please contact National Criminal Lawyers on 02 9893 1889


1 NSWLRC above n 19, at 2.133.
2 Professor David Dixon is the Dean of Law at UNSW.
3 NSWLRC above n 19, at 2.137; see CCH A Wolters Kluwer Business, ‘Changes to evidence law in NSW: right to silence?’ (28
March, 2013) 

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