Right to Silence Laws have an Unintended Effect in NSW
Thursday 23 July 2015 @ 11.51 a.m. | Crime | Legal Research
There is a standoff between defence lawyers and police in NSW after lawyers are failing to turn up to police stations when their clients are arrested to avoid controversial law changes regarding the right to silence contained in the Evidence Amendment (Evidence of Silence) Act 2013 (No. 9 of 2013) (NSW) (the Act).
Background to the Act
The Act was introduced into the Legislative Assembly on 13 March 2013 as part of a package of bills relating to inferences that may be drawn from the silence during official questioning of persons accused of serious indictable offences.
According to the second reading speech, the purpose of the Evidence Amendment (Evidence of Silence) Bill is to allow an unfavourable inference to be drawn against certain accused persons who refuse to cooperate with the police during official questioning and who later seek to rely on a fact in their defence at trial that they could reasonably have mentioned during this questioning.
Its cognate bill, the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill, had as its purpose amendments to reform the case management provisions in part 3, division 3 of the Criminal Procedure Act 1986 (NSW). It expands the scope of mandatory disclosure requirements in criminal trials and allows an unfavourable inference to be drawn by a jury against a defendant who fails to comply with a pre-trial disclosure requirement under the division.
According to Greg Smith, MP:
"The provisions in the bill are targeted at seeking information in the first stages of an investigation from a suspect during police questioning. They aim to identify the defences and the facts that the suspect will later rely on at court, if the suspect is charged and contests the matter at trial. Early identification of the issues in the case will later assist in the efficient management of the trial process under the proposed changes to the Criminal Procedure Act. The provisions in the Evidence Amendment (Evidence of Silence) Bill will apply to serious indictable offences. The bill makes it clear that juveniles and people who are incapable of understanding the consequences of remaining silent are exempt from the provisions. It also removes none of the protections afforded to vulnerable people…These reforms will help to reduce delays in the criminal justice process and therefore promote fairness to both prosecution and the accused."
The Bill was assented (without amendments) as Act No. 9 of 2013 on 25 March 2013. The Act came into effect on 1 September 2013.
Unintended Side Effect of New Amendments
Under the new laws (introduced with new section 89A in the Evidence Act 1995 (NSW)), 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. But the NSW government also included a condition where the law cannot be applied unless the accused person has a legal representative present.
So, in NSW, lawyers are simply not showing up.
Police Association of NSW President Scott Weber said the loophole used by lawyers was extending the time of investigations and making things difficult for police:
"Police officers are extremely frustrated in regards to lawyers that are meant to defend offender's rights not turning up and protracting? the ongoing investigation when it's not necessary."
However, the chair of the Law Society's criminal law committee, Pauline Wright, said the law changes were a mistake to begin with and should be scrapped:
"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...You would be negligent to your client if you did go [to represent them] under these laws. If you go along to the police station with your client, you are putting your client at risk of saying something stupid or ill-informed and possibly harm their defence – what lawyer would take that risk?"
Before the laws were amended, the police caution given to those arrest read as follows: "You are not obliged to say or do anything unless you wish to do so." 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."
Similar legal changes were made in Britain in 1994 but the government made sure there was enough funding for an on-call duty lawyer at police stations, so that officers could read out the special caution needed for the law to be effective. In NSW, no such funding was provided after the laws were introduced by the government in 2013, so this has resulted in the standoff between the police and the legal profession.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
Evidence Amendment (Evidence of Silence) Act 2013 (No. 9 of 2013) as reproduced in TimeBase LawOne
