You still have a 'Right to Silence'...

"But it may harm your defence if you do not mention, when questioned, something you later rely on in Court”

On 14 August 2012, the NSW Government foreshadowed amendments to be made to the Evidence Act (NSW) which would affect a person's right to remain silent in criminal matters.

NSW Premier, Mr Barry O’Farrell has stated that the Evidence Act is to be amended to allow juries and the judiciary to draw an adverse inference against an alleged person who refuses to speak to investigating police, but later produces evidence at trial in a bid to be found not guilty.

At present, the Evidence Act does not allow Courts or juries to draw an adverse inference from such behaviour. For hundreds of years, the highest Courts in Australia and the United Kingdom have found the "right to silence" to be a fundamental rule of law.

The changes will affect the caution given by police to people accused of committing a criminal offense.

The caution given by police is:

“You are not obliged to say or do anything unless you wish to do so but, whatever you say or do may be used in evidence. Do you understand?”

Under the new proposals, this would be changed to:

“You are not obliged to say or do anything unless you wish to do so, but it may harm your defence if you do not mention, when questioned, something you later rely on in Court. Anything you do say or do may be given in evidence. Do you understand?”.

Groups including the Law Society of NSW have condemned the moves by the NSW Government. The President of the Law Society of NSW, Justin Dowd, said on the issue:

“It is an essential tenant of the criminal justice system that the prosecution has to prove their case beyond reasonable doubt. It is not the responsibility of the accused to prove his or her innocence".

The proposals were considered in detail in a 2000 report by the NSW Law Reform Commission where the introduction of the amendments was rejected.

Mr O’Farrell has indicated that the amendments are modelled on the justice system in the UK which, in 1994, made a series of amendments similar to those noted above.  In the UK, however a government funded duty solicitor scheme which provides legal aid solicitors available 24 hours a day, every day, in each police station was provided to assist any accused person when taken into custody. This does not exist in NSW and would require a significant increase in legal aid funding.

The draft legislation is to be introduced in Parliament in October and if successful will become Law shortly thereafter.

While the amendments have not yet occurred, it reinforces the need for any individual charged, or suspected of being charged, with a criminal matter, to obtain urgent legal advice with respect to their rights and obligations under the law so that you rights can be protected and so that the best possible defence to any allegation may be put before the Court.