(Legislative Assembly, NSW Parliament)

Debate: Evidence Amendment (Evidence of Silence) Bill and Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill

The right to silence is a fundamental principle that exists to protect the innocent. It supports the basic common right of innocence until guilt is proven together with the principle that confessions are made voluntarily and that one does not have to prove their innocence.

These are essential to ensure access to a fair trial.

I understand the right to silence has been enshrined in our legal system since the 1700s and in Australian law since 1824.

The Evidence Amendment (Evidence of Silence) Bill defies these basic fundamental rights by allowing a jury to make an unfavourable inference against an accused person if he or she fails to give the information during questioning by police.

Similar laws exist in the United Kingdom which the Law Reform Commission assessed in 2000. The Commission concluded that the right to silence is not used more by guilty suspects than innocent ones, nor does it impede prosecution or conviction.

In The Sydney Morning Herald on 16 August last year Professor David Dixon, Dean of Law at the University of New South Wales, stated that little research has been done on this issue since the Law Reform Commission assessment. He did however discuss his own assessment of a year's worth of interviews in New South Wales in 2006 which showed that in most cases if there is evidence against someone, they tend not to use their right to silence and cooperate with police. He says that most suspects confess immediately or will maintain denial no matter what.

Professor Dixon points out that the best case for prosecution is based on evidence not confessions because it is less subject to malpractice. 

The Law Society of New South Wales says that making an adverse inference against someone because they provide new information in court is tantamount to assuming evidence provided in court is made up. The society says it will force people to provide their defence when they are brought in to custody.

While the bill only applies to an accused with legal representation present during questioning, the Bar Association of New South Wales points out that legal practitioners often have inadequate information about the nature of evidence against an accused, making it difficult to provide advice at initial questioning.

I am particularly concerned about the impact of this on Aboriginal people, people with a mental illness, LGBTI people and people who are homeless, who can often mistrust police and the legal system.

The Aboriginal Legal Service (NSW/ACT) says that vulnerable people will be inclined to make false confessions to stop intimidating pressure or achieve bail, resulting in more being incarcerated.  

Not explaining yourself when you are arrested should not be used against you and you should not be forced to incriminate yourself.

There are a number of reasons why someone may feel disinclined to talk, and this should not incriminate them.

The legal system is difficult to understand and people have the right to understand relevant laws before they give evidence.

It is wrong of the Government to imply that if someone is innocent that they won't be accused of wrong doing or that if you are innocent you will be happy and able to talk about it.

The Government has not provided evidence that the changes in this bill will increase guilty pleas or convictions or that the right to silence is preventing prosecutions. In fact the New South Wales Bar Association reports that similar laws in England and Wales have not resulted in any successes but have been widely considered problematic.

It says that the application of police warnings will create new grounds for appeal, as it did in the UK.

I am also concerned about the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill, which makes pre-trial disclosures mandatory and allows an unfavourable inference to be made against a defendant who fails to comply.

I understand this requirement will make court preparations more onerous. More pre-trial hearings will be needed, delaying trials and increasing costs. The vulnerable people represented by legal organisations with limited resources like Legal Aid and the Aboriginal Legal Services will be impacted.

The Bar Association points out that the bill could increase the length of trials, as it has done in the UK because time will be taken up by legal argument about the adequacy of statements.

I cannot support these bills.