The Right to Silence Takes a Beating in NSW

By Adam Fletcher*

Earlier this month, the NSW Government announced that it is going to restrict criminal suspects’ right to silence to ‘tilt the scales of justice towards common sense.’ A Bill will be introduced by October to amend the Evidence Act 1995 (NSW) “to allow juries and the judiciary to draw an adverse inference against an alleged criminal who refuses to speak to investigating police, but later produces ‘evidence’ at trial in a bid to be found not guilty.”

The press release went on to say: “Attorney General Greg Smith said the right to silence was an important legal principle but it was too easily exploited…. The proposed change reflects reforms made in Britain and Wales in 1994, and will apply to serious indictable offences.”

However, there are at least two important differences between the criminal law system in Britain/Wales and that of NSW:

Apart from Singapore (which incidentally doesn’t provide similar guarantees of legal representation) and Ireland, Britain and Wales are the only other common law jurisdictions to have diluted the right to silence in this way (although changes are being contemplated in Scotland).

Perhaps the principal similarity is the political context – at least one person involved in the UK shift in 1994 claims that it was about politics and the police demonstrating they were ‘in charge’ of the criminal justice process, and went against the recommendations of experts.

According to the NSW Law Reform Commission, in the jurisdictions which have changed their legislation, courts and juries are “specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so.”

Is this really something we want for Australian law?

The privilege against self-incrimination was developed at common law hundreds of years ago, although its modern form (protecting the defendant before trial) is more recent. In simple terms, it evolved as a mechanism to prevent investigators from beating confessions out of people, rather than building a case by gathering evidence properly. To ensure the integrity of the right, courts and juries were also instructed not to hold it against a defendant if he or she refused to talk to the police. Cases in recent years have already watered down this ‘no adverse inference to be drawn’ rule a bit for serious crimes, while preserving the essence of the right.

Why would NSW propose to ‘tighten’ the law now? After a spate of serious gun crime in Sydney, the Police are arguing that alleged criminals are ‘obfuscating’ and exploiting the system, and that the right to silence is giving them the ‘tactical upper hand.’ Needless to say, it does not look good for ‘crims’ to have such an advantage, so it was determined that something must be done.

The right not to be compelled to confess a crime is a fundamental component of the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR – see 14(3)(g) in particular). It is also a safeguard against torture and cruel, inhuman and degrading treatment (‘ill‑treatment’) or punishment (prohibited by article 7), which are commonly inflicted for the very purpose of eliciting admissions of guilt.

It is true that section 84 of the Evidence Act 1995 (NSW) makes evidence obtained by unsavoury means inadmissible, but there is also the question of the presumption of innocence (another long‑standing common law right which is reflected in article 14(2) of the ICCPR). This presumption means it is for the State to prove the guilt of a suspect, and to compel the suspect’s cooperation in this endeavour is to undermine the very notion of a fair trial.

The privilege against self-incrimination in article 14(3)(g) of the ICCPR is closely linked to the prohibition of ill-treatment and the presumption of innocence, which are fundamental rights. As such, any limitation on this privilege should be approached with abundant caution.  In addition, the delicate balancing act required when limiting rights which go to the heart of our justice system is best undertaken by the courts, not the Executive. As I mentioned, there are Australian cases (including Parkes v R in 1976 and R v Alexander in 1994) which have already made carefully-considered modifications to the rule that silence under questioning may not be held against a suspect, which further weakens the rationale for statutory amendment.

In the UK, the Human Rights Act 1998 incorporates the fair trial guarantees in article 6 of the European Convention on Human Rights into domestic law, giving suspects an added measure of protection (in this case, guaranteed access to a lawyer). In NSW (as in most Australian jurisdictions), our equivalent international obligations (under article 14 of the ICCPR) have not been similarly incorporated into domestic law. This leaves Governments free to strip away important rights in response to the political pressures of the day (especially undesirable if they are ‘temporary aberrations’). Even with the guaranteed access to a lawyer in the UK, the UN Human Rights Committee observed in 2001:

Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.

The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.

Professor David Dixon, now Dean of Law at UNSW, is an expert on law relating to policing and is against the proposed changes to the Evidence Act 1995. He notes that two Royal Commissions, in addition to plenty of academic research, recommended against the UK’s 1994 changes. The NSW Law Reform Commission published a comprehensive report on the right to silence in 2000 which supported his stance and specifically recommended against going down the same path as the UK. It noted there are already sensible exceptions in the case of drivers’ licences and alibis. Dixon also warns that, in light of UK and international jurisprudence, “if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.” Would the Government then provide free legal advice to all who are to be questioned by the Police…?

Others with extensive experience in the criminal justice system here in Australia also remind us that “[p]eople lie for all sorts of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state.” Its abrogation can effectively shift the burden of proof to the accused, who often struggle to explain their innocence.

In making it an offence to refuse to answer questions from agencies such as the various Crime Commissions and ASIO (not to mention restricting rather than increasing the involvement of lawyers), Australian Governments have already placed serious limitations on the privilege against self-incrimination. It is time to stand up to the erosion of this important human right.

*Amended on 11/9/12 after kind advice from Jeremy Gans

3 responses to “The Right to Silence Takes a Beating in NSW”

  1. Regardless of quibbling over history, there are very cogent reasons to remain silent. Here are some of those reasons in a video viewed over 4.1million times!

  2. Nice summary, but a few inaccuracies. For starters, the ‘UK reforms’ are actually only present in England, Wales and Northern Ireland, not Scotland (though the latter is considering similar changes now that it has been obliged via the Europe rights convention to let suspects speak to lawyers prior to interrogation.)

    Second, I’m not sure if the third and fourth differences you’ve listed between English/Welsh and proposed NSW laws are actually differences. Anyway, Ireland is another common law country that restricts the right to silence in a similar way to the UK: see s19A of the Criminal Justice Act 1984. Also, I’d venture to say that politics might have something to do with the NSW retreat from the right to silence, just the the UK (and Irish) ones!

    Third, on a point of history, the NSWLRC report you link to does NOT support the view that ‘the privilege against self-incrimination BEFORE TRIAL was developed at common law hundreds of years ago’. Rather, like most histories of the right, it largely describes developments from the middle of last century, notably the crucial development of the police caution through the Judges’ Rules (see also Miranda in the US.) Even the trial version of the privilege is a relatively recent phenomenon in its current form; defendants weren’t even allowed to testify until the turn of the last century. The right to silence can mean a lot of different things, but its current form is a relatively recent one.

    Finally, the link you’ve offered about ‘intransigence from perpetrators’ seems to be mostly, if not wholly, about intransigence from people ‘affected by’ shootings, i.e. non-suspect witnesses, including victims. The common law right to silence only applies to suspects, so it’s not clear that changing the inferences that can be drawn at a future trial will make any difference to witnesses who stick, happily or otherwise, to a code of silence. However, s89 of the UEL bars drawing any inferences from anyone’s silence in the face of official questioning, whether they are suspects or not. Why is a mystery.

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