The Legal Right To Silence In NSW

The Legal Right To Silence In NSW

The Legal Right To Silence In NSW

Find out more about your legal rights when remaining silent in a criminal proceeding and the impact the new laws have on the accused and their legal practitioners. 

The right to silence still exists in NSW, but when charged with a criminal offence, remaining silent is now a far less attractive prospect due to new amendments made to the law. Let’s take a closer look.

What Is A Right To Silence?

A person suspected of committing any crime has a right under common law where they can choose to remain silent. This means they can decline to answer questions asked by the police when being interviewed and not provide evidence when being questioned in court.

Under common law, a person suspected of committing a crime has a right to silence. The law states that no individual can be compelled to incriminate themselves. No adverse inference can be drawn if a person fails to answer police questions. This means, in basic terms, if a person chooses not to speak in their defence, others can not presume that they are guilty.

This action ensures that the prosecution can prove guilt beyond a reasonable doubt in a criminal matter and that the accused is not responsible for establishing their innocence. It also supports the traditional belief that individuals should not undergo compulsory interrogations about criminal conduct.

Remaining Silent During Police Interviews

An individual suspected of an offence has the right to refuse to answer the police’s questions. They are, however, required to provide their name, address and date of birth when asked by the police. When asked these details by police, they should answer, even if they are not under arrest.

When the investigating official has a suspect, they will attempt to gather more information regarding the possible criminal conduct during official questioning. The investigating official will inform the person that they do not have to answer the questions and make sure the suspect understands. The suspect can remain silent throughout the interview, or they may say “no comment”.

Any admission of guilt during an interview is only admissible in court if a confession was given willingly and voluntarily. For example, if the accused gave a confession when drunk or sick, it will probably be challenged in court and will likely become inadmissible if the prosecution seeks to rely on such evidence.

Providing Evidence In Court

In a criminal law matter, a defendant doesn’t need to give evidence in court. It is their decision. A judge can not suggest that failure to provide evidence is an admission of guilt.

If they choose to give evidence, they can be cross-examined, including asking questions that may incriminate them.

On Appeal

If a defendant in a criminal proceeding decides not to give evidence during their trial and subsequently appeals, remaining silent at trial may strengthen the inference of guilt if the prosecution provides adequate proof. The appeal court will consider their silence, which may prove disadvantageous for a severe criminal matter.

NSW Legislation – The Evidence Act

The New South Wales Evidence Act 1995 states that no adverse inference can be drawn if a person does not answer questions asked by authorities. It also says that the accused person has the right to stay silent. A suspect can remain silent during an interview and refrain from giving evidence during trial. The police caution would note that the individual is not obliged to say or do anything if they do not wish.

The Evidence Amendment

In Mar 2013 NSW government introduced the Evidence Amendment Act, which has created unforeseen consequences for a defendant’s right to silence. The new laws were introduced following a string of drive-by shootings in 2012.

The legislation now states that it may harm the accused’s defence if they do not mention something they may need to refer to or rely on later in a trial. The new laws can affect their right to silence when questioned for a serious criminal offence (more than five years in prison). It includes a condition that states that the special caution can only apply when the accused person is in the presence of their Australian legal practitioner. 

The new criminal law provisions do not apply to defendants under 18 and only apply to offences carrying maximum life imprisonment or a term of at least five years.

The Criminal Procedure Amendment

In addition to the evidence amendment, the second new law is the Criminal Procedure Amendment. This law states that the defence and the prosecution must outline their case weeks ahead of the trial proceedings. There is no risk of a different defence at trial, where new relevant facts come to light. If the defendant fails to mention relevant facts and attempts to rely on the information during the trial, it will likely result in an unfavourable inference.

Effects Of The New “Evidence Of Silence” Law Amendment

Changes to the legislation have caused great debate within the legal profession regarding the practicalities of the amendment and protecting a client’s right to silence.

The 2013 evidence amendment now allows a jury to favour the prosecution if a defendant withholds information they later rely on during the trial. The new law may negatively impact their case if they fail to speak or mention something they wish to use later.

Specialists claim it is an attack on a client’s fundamental rights as the prosecution should have to prove their case beyond a reasonable doubt. 

How Do The New Laws Impact Your Legal Right To Stay Silent?

  • The safeguard states the special caution can only be given to the defendant when in the presence of their lawyer. Career criminals may avoid the new provisions by not having their lawyer present at a police interview.
  • These changes have led some legal practitioners to avoid attending interviews with their clients at the police station. 
  • The risk of an adverse inference is genuine. It can take away the protection offered to people accused of a crime who are under stress, confused, vulnerable, or have limited English during questioning.
  • An unforeseen consequence of the new amendment is that some accused persons are disadvantaged for having legal representation present during official police questioning. Receiving legal assistance from a criminal defence lawyer is essential for serious crimes.
  • An accused cannot maintain their right to silence.
  • An Australian legal practitioner must now consider whether it is in their client’s best interests for them to be present at the police station.

The discussion has arisen about having a lawyer employed permanently at police stations to advise the accused of their rights. But the NSW government or Legal aid do not have the resources or financial capacity to do so.

NSW Law Reform Commission

In 2000 a report was conducted called the “right of silence”, which examined the public’s perception of the special caution given by police.

The commission’s report states that 60% of suspects felt the caution was threatening and pressuring. 80% were confused and felt under an additional obligation to answer questions asked by police. The report identified further problems, including:

  • Increased uncertainty about the law
  • Increased cost, length and complexity of trials
  • Increased number of appeals

Summary

Under common law, someone suspected of committing a crime has a right to silence. The New South Wales Evidence Act 1995 states that no adverse inference can be drawn if a person does not answer questions asked by authorities. This means, in basic terms, legally, if a person chooses not to speak in their defence, they should not be forced to, nor should others presume that they are guilty.

In Mar 2013 NSW government introduced an amendment to the Evidence Act. The new legislation states that it may harm the accused’s defence if they do not mention something they may need to refer to or rely on later in a trial. This affects their right to silence when questioned for a serious indictable offence. It includes a condition that states that special caution can only apply when the accused person is in the presence of their legal practitioner. 

Specialists claim it is an attack on a client’s fundamental rights as the prosecution should have to prove their case beyond a reasonable doubt. 

Changes to the legislation have caused great debate within the legal profession regarding the practicalities of implementing the amendment and protecting a client’s right to silence. Some accused persons are disadvantaged for having legal representation present during official police questioning, as they cannot maintain their right to silence. Also, it can take away the protection offered to people accused of a crime who are under stress, confused, vulnerable or who have limited English during questioning. 

The new laws put lawyers in an uncomfortable position where they must now consider whether it is in their client’s best interests for them to be present at the police station.

Related articles
Public Health Orders In NSW
Public Health Orders In NSW

The Australian and New South Wales government has introduced new legislation in response to COVID 19 pandemic. Over 15 different Read more

Dispute Resolution in NSW
Dispute Resolution

Find out more about dispute resolution, different types of conflict, why it is crucial to follow an effective dispute resolution Read more

What is an Enduring Power Of Attorney?
Enduring Power Of Attorney

Simply put, a power of attorney is when you give someone you trust the authority to decide matters on your Read more

Contributory Negligence
Contributory Negligence

Find out what contributory negligence means, what effect it can have on compensation and some common examples of negligence. Suppose Read more