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Guest Post: Time to ‘Speak Up’ on the Right to Silence

editor - November 20, 2015 - Presumption of innocence

1024px-High_court_of_Australia_-_court_2The right to silence is an important feature of Australia’s criminal justice system that offers protection against self-incrimination and compels the state to prove its case against an accused. The right has obvious links to the presumption of innocence that remains a centuries-old fundamental principle and feature of many legal systems throughout the world. Critically, those exercising the right have traditionally enjoyed the added assurance that judges and juries were expressly prohibited from drawing inferences of guilt on the sole basis that an accused had chosen to remain silent.

Those who argue that only people with something to hide remain silent fail to appreciate that there are many legitimate reasons why a person might choose to remain silent following arrest. The power imbalance that exists between the police and a suspect means that arrested innocent and vulnerable persons who participate in a police interview may feel pressured to provide false accounts in order to appease police and hasten the prospect of being released. Others might unwittingly incriminate themselves through the effects of shock, confusion, nervousness, mental illness, drugs, alcohol or poor English skills. Accordingly, for these reasons and others, criminal defence lawyers in Australia have long advised against voluntary participation in a police interview as it is invariably never in ones best interests.

However a little over two years ago, laws in the Australian state of New South Wales were amended to provide that in certain circumstances, a jury may draw an adverse inference from a suspect’s decision to remain silent. These changes to the law were prompted by a spate of drive-by shootings in and around the western suburbs of Sydney where those thought to be involved or with knowledge of such offences flatly refused to disclose information to police.

In September of 2013, in an effort to break the criminal’s code of silence, the then O’Farrell government added section 89A to the state’s Evidence Act 1995. That section currently provides that:

“In criminal proceedings for a serious indictable offence, such 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.”

This also prompted a change to the caution to be provided to suspects by police. The required caution that previously confirmed the right to silence but warned of an ability to use as evidence anything said or done now reads:

“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 which you later rely upon in court. Anything you do say and do may be given in evidence. Do you understand?”  

The ability of a judge or jury to conclude that a favourable fact first raised at trial has been recently invented wrongly assumes that accused persons understand what facts the law considers relevant. A defendant’s lack of understanding in this regard is understandable given that they invariably lack legal training and at the time of interrogation, are treated as a source of information, not the recipient of details already know to the police.

An important safeguard in the Act provides that no adverse inference can be drawn at trial if the caution is given in the absence of a lawyer. This protection has resulted in many lawyers refusing to accompany clients and/or visit them at police stations. Ironically, many within the profession have taken the attitude that in order to best protect their client’s position, it is better to stay away. Pauline Wright, the chairperson of the NSW Law Society’s Criminal Law Committee has gone so far as to suggest that under the current law, it would be ‘negligent’ for a lawyer to attend a police station as doing so would trigger operation of the section and place a client at risk of inadvertently harming their own defence come trial.

In more recent months, NSW police have expressed a view that the new laws, rather than assisting them with their investigations, have in fact hindered the timely conduct of investigations. This has resulted in calls from the NSW Police Association that the safeguard be scrapped and laws be tightened to allow the caution to be given in the absence of an accused’s lawyer.

This development is particularly concerning and represents a further effort to water down the right to silence. There is simply no reliable empirical evidence suggesting that the right to silence is being widely exploited by criminals in order to escape conviction. In the words of the NSW Law Society President John Eades, any qualification on the right to silence serves to ‘violate essential tenets of the criminal justice system that require the prosecution to prove cases beyond reasonable doubt’. It is not and should never be for the accused to prove their innocence. Any legal system whereby an accused is tarnished with the suspicion of guilt for simply putting the prosecution to proof cannot stand for a fair trial to result.

This is a guest post written by Daniel Matas and may not reflect the views of Fair Trials. Daniel Matas is a Lawyer and Clinical Lecturer at the University of Newcastle Legal Centre, Newcastle, Australia. If you are a journalist interested in this story, please telephone Fair Trials’ press department on 020 7822 2370 or 07950 849 851. For regular updates follow Fair Trials on Twitter or sign up to our monthly bulletin at the bottom of the page.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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