In March 2013, the New South Wales ('NSW') Parliament passed the Evidence Amendment (Evidence of Silence) Act 2013 (NSW) ('Evidence Amendment Act'), qualifying the long-standing absolute right to silence. This paper seeks to analyse this recent law reform and argues that it is highly problematic and unnecessary for three reasons. First, the reform is a response to perceived problems in the criminal justice system that are arguably illusory. Even if the problems are manifest, it is unclear whether the reform would be effective in resolving them. Second, the qualification of the right to silence is beset with philosophical difficulties associated with the inappropriate undermining of fundamental legal principles including the presumption of innocence. Third, the reform is complicated to apply and introduces into NSW significant practical difficulties that are observable in the other (few) jurisdictions which have similarly restrained the right to silence, in particular England and Wales. This paper concludes that in light of such glaring difficulties and problems, which were made clear to the government by virtually every major criminal law stakeholder in the form of submissions strongly opposing the reform, the Evidence Amendment Act cannot be considered a genuine attempt at law reform in the sense of making changes to improve the law. Rather, it is arguable that the reform is an example of ill-conceived and populist legislation by a NSW government attempting to appear 'tough' on crime in response to recent media coverage of the activities of organised crime gangs operating in Sydney.
The right to silence is generally considered a fundamental legal right, protected in virtually every major common law jurisdiction. The right ensures that suspects being questioned by police and defendants in a criminal trial can remain silent without any detrimental legal consequence. It exists as a protection of individual liberty, preventing the State from compelling a person to provide information or confessing to an offence, as occurred in more ancient times, often in response to torture. In this way, the right to silence also serves to strengthen other fundamental legal rights in most common law jurisdictions, including the presumption of innocence and the privilege against self-incrimination. No suspect or defendant may be compelled to speak in his or her own defence since it is the State that must prove guilt. However, despite its fundamental importance, in March 2013, the NSW Parliament passed the Evidence Amendment Act, significantly affecting the right. Under the new legislation, the right to silence is no longer absolute in NSW. Rather, in some circumstances, an adverse inference may be drawn by the court against defendants who elect to remain silent during police questioning and who fail or refuse to mention a fact that they ought reasonably have mentioned and which is later relied on in their defence.
The reform has generated significant controversy. This is understandable given that its effect is to intrude upon a long-held and fundamental legal right. However, arguably more importantly and no doubt because of this, the reform is highly controversial since its enactment occurred despite strong opposition from numerous experts and virtually every major stakeholder in the criminal justice system. The reform was also enacted despite contrary recommendations from the NSW Law Reform Commission ('NSWLRC') and even a recent Scottish report that advised against similar legislative change in that jurisdiction. Given this particular context, this paper seeks to examine the restrictions placed on the right to silence in NSW. After summarising the main elements of the reform and outlining the government's rationale behind them, this paper will argue that the reform does not achieve any of the government's stated rationales, thus rendering it unnecessary. Moreover, the reform introduces into NSW a range of philosophical and practical difficulties. For example, it arguably complicates criminal proceedings, extending their duration and public expense. To support this argument, the effect of similar reforms in England and Wales in 1994, will be analysed. These reforms have been generally regarded as problematic, if not disastrous. Considering the government's persistence in supporting and implementing the Evidence Amendment Act, given the overwhelming opposition amongst all major stakeholders, and with knowledge of the detrimental impact similar reforms have had in England and Wales, this paper concludes by suggesting that the passing of the Act reflects political motives rather than any genuine endeavour by the government to reform the right to silence. The Act is arguably the product of a government attempting to appear tough on crime in response to negative publicity about organised crime gangs operating in Sydney.
II EVIDENCE AMENDMENT (EVIDENCE OF SILENCE) ACT 2013 (NSW)
A An Overview of the Reform
The Evidence Amendment Act amends the Evidence Act 1995 (NSW) ('Evidence Act'), significantly changing the law regarding the right to silence. Prior to the reform, s 89 of the Evidence Act provided a general prohibition on using the silence of an accused as evidence in criminal proceedings. In particular, the making of an adverse inference in relation to a defendant who remained silent during a police interview was precluded. Passed in March 2013, the Evidence Amendment Act qualifies the general prohibition in s 89, making it subject to a newly inserted s 89A. Under this new section, the general right to remain silent in the pre-trial stage of criminal proceedings without legal consequences is limited, such that:
unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and that is relied on in his or her defence in that proceeding. (1) From the section's wording, it is clear that the legislature intended to confer a discretion to draw an adverse inference from silence during a police interview. Indeed, the section refers simply to a defendant's failure or refusal 'to mention a fact' during a police interview, thereby not requiring 'the failure or refusal to be in relation to a specific question or representation' from the interviewer. (2) This gives the section a wide ambit and places a strong (and new) onus 'on the defendant to mention all relevant facts' per se when being interviewed. (3)
Despite this wide ambit, the operation of s 89A is dependent upon the fulfilment of two threshold criteria. First, the section does not apply automatically to all suspects being interviewed at a police station, but only those whom the police reasonably suspect have committed a serious indictable offence. (4) Second, the ability to draw an adverse inference is dependent upon the interviewer first administering a special caution, (5) which has the effect of conveying to the defendant the fact that they need not say or do anything, but that it may harm their defence should they fail or refuse to mention something later relied on in court. (6)
Finally, the application of s 89A is limited by certain safeguards designed to protect the accused from being subject to the formation of an inappropriate unfavourable inference by the court. For example, the section only applies to facts 'that the defendant could reasonably have been expected to mention in the circumstances existing at the time'. (7) Also, in order to protect vulnerable defendants, s 89A does not apply to juvenile defendants or anyone 'incapable of understanding the general nature and effect' (8) of the special caution. It is also a requirement that the special caution be given 'in the presence of an Australian legal practitioner ... acting for the defendant' (9) at the time. Importantly, the defendant is also to be allowed, in private, 'a reasonable opportunity to consult with that ... legal practitioner ... about the general nature and effect' (10) of the special caution. While the legislation does not define presence, in his second reading speech, the Attorney-General noted that this required actual physical presence, with 'contact by telephone or some other electronic means' (11) being insufficient. Finally, the...