Silence Rights

Abstract

Significant changes have been made to criminal justice in NSW by two statutes, the Evidence (Evidence of Silence) Amendment Act 2013 and the Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Act 2013.

The Evidence of Silence Act substantially affects the rights of suspects who are being questioned by police officers. Modelled on the Criminal Justice and Public Order Act 1994 s34 in England and Wales, it substantially restricts the right to silence by permitting adverse inferences to be drawn at trial from a suspect’s failure to provide information to police during interrogation. The Defence Disclosure Act acts both as a ‘backstop’ for the Evidence of Silence Act to catch those who might avoid its operation and as a practical imposition upon not only the defence in a criminal case, but also upon the prosecution. This article analyses the legislation, locating it in its policing and political contexts with particular reference to its likely impact on Indigenous suspects and defendants.

The article argues that this legislation represents a significant challenge to the integrity of the principles which form the structure of our criminal justice system. It is a product of short-term criminal justice politics, not considered investigation and evidence-based reform. There is no demonstrated need for the curtailment of the right to silence. On the available evidence, there is no reason to believe that it will achieve its stated objectives. Rather, the experience of the English legal system is that it will create many problems for the courts. Such legislative blundering is likely to have multiple undesirable side-effects. One of these may well be harm to Aboriginal and Torres Strait Island suspects and to the Aboriginal Legal Service whose task it is to advise and defend them.

Keywords: Criminal Justice in NWS, Evidence (Evidence of Silence) Amendment Act 2013, Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Act 2013, Indigenous suspects and defendants