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Right to silence laws weakened

In NSW, right to silence laws have been changed. Hannah Ryan and Andrew Bell explain the cause for concern.

Barry O'Farrell, waving his right to silence Barry O'Farrell, waving his right to silence

Last Wednesday the NSW Parliament passed reforms limiting the right to silence.

The new laws, introduced by the Liberal government and passed with the help of the Shooters and Fishers Party, mean that defendants can no longer happily keep their lips zipped in an initial police interview without prejudice to their trial. Instead, police can warn them: “It may harm your defence if you fail to mention something now which you later rely on in court.” A jury can later draw an adverse inference from silence, increasing the chance of conviction.

The reform was apparently enacted to make prosecution of bikie-related shootings more efficient and increase their prospects of success.

USYD’s Associate Professor David Hamer, an expert in the law of evidence, told Honi that the reform will actually have limited practical effect.

“Suspects rarely remain silent,” he wrote. “Most cooperate with the police.”

Barry O'Farrell, waving his right to silence
Barry O’Farrell, waiving his right to silence

The reforms are based on English provisions, which have had no material impact on conviction rates.

The inference will only apply when a defendant has a lawyer present. While this avoids an unfair burden falling on underprivileged defendants, it means the reform will apply inconsistently. This inconsistency is compounded by the fact that police can decide whether or not to give the new caution. If they elect not to, no adverse inference can be drawn from silence.

It is also possible for savvy defendants to avoid the applications of the reforms. If a suspect elects not to bring a lawyer to the interview, the caution cannot be issued.

At the same time, the government introduced a second, arguably more serious, reform. Defendants facing serious charges must now disclose all the details of their defence prior to trial.

According to Dr Hamer, this will not improve efficiency, the justification offered for the change. Defendants will now have to do extra paperwork, even in simple cases. The prosecution’s disclosure requirements have also been extended, and courts must manage these requirements.

The consequence of failing to disclose a defence may be that a defendant is prevented from running that defence, or that a jury can draw an adverse inference from the lack of disclosure, again increasing the chance of conviction.

It is this second reform that has the greatest risk of disadvantaging the underprivileged and uneducated. Dr Hamer says the disclosure requirements may be demanding, particular if a defendant has limited or no access to legal advice.

“Poor and uneducated defendants are more likely to be found not to have complied with the provisions,” he explained.

“The simple fact of their disadvantage may increase the chance of a conviction, and a wrongful conviction. These new disclosure provisions will certainly disadvantage poor and uneducated defendants compared to more educated defendants and those with the money to afford decent legal advice.”

Both of these reforms are aimed at efficiency but may well achieve the opposite, with some added injustice thrown in for good measure. Given their inadequacies, why did the government introduce them? According to Dr Hamer: “The only explanation appears to be that the government was pandering to the law and order lobby.”

The right to silence reform may well have limited practical effect – indeed, Dr Hamer describes it as “largely symbolic.” But even a mostly symbolic attack on legal rights should be cause for concern.