Opinion - 21 September 2012

Background
The right to silence at trial was born in the mid fifteenth century and came about due to the abuses of the notorious Star Chambers in England. Their sittings were closed to the public and indictments were often in secret. Over time, the Star Chambers became more favourable to the Monarch and was ultimately used as a political weapon to oppress and control the people.

Investigative procedures introduced in England in the sixteenth century required suspects to be brought before an examining magistrate to respond to questioning however suspects were often abused. As a result of judicial officers distrust for investigating officers’ methods, the right to silence evolved.¹

With the abolition of the Star Chambers was born the Latin maxim nemo tenetur se ipsum accusare, “no man is bound to accuse himself”. This right came about as a result of the abuses of the Monarch against the people in requiring defendants to respond to questioning. It is thought the Fifth Amendment of the US Constitution was motivated by the Star Chambers thereby requiring confessions to be voluntary. Since that time the common law has evolved to embrace the right against self incrimination and more broadly the right to silence.

The law in the UK and many other Commonwealth countries has enshrined this right to guard against possible abuses of the State. The right to silence is a well established and long standing common law doctrine so much so that in the early twentieth century it was codified in both the UK and NSW. It is noteworthy that in 1994 the UK amended its legislation to qualify the right to silence and on 14 August 2012 the NSW government announced its intentions to do the same.

Proposed Amendments
Broadly speaking the amendments proposed by the NSW Government are that if a defendant fails to answer questions asked by Police, an adverse inference may be drawn at trial from any fact upon which he relies, that he should have reasonably known but did not previously disclose.

Purpose of the Right
The purpose of the right is simple but wide and comes about from the inherit right of an accused to challenge and resist any accusation made against him by the State. In the first instance an accused in criminal proceedings should not be required to accuse himself if for no other reason that in so doing he may commit perjury. However more broadly, with some minor exceptions the burden in proving any criminal offence lies with the State.² The right to silence enforces that burden. A defendant in criminal proceedings is not and should not be required to assist the State in the discharge of that burden nor is the defendant required to prove his innocence.

As such the fundamental principle that the burden of proof lies with the prosecution is a corollary to the right to silence. There would be no point to the obligation of burden if the State could simply force the defendant to answer questions. The proposed amendments do not force suspects to answer Police questions however they are coercive and suspects are likely to feel compelled to respond if they are to have a better chance of defending the allegations in Court.

Misuse
Some argue that the right to silence is often exploited by defendants who choose to exercise it. This proposition is both misconceived and not founded in evidence. It can only be premised on the notion that a defendant should be obliged to assist the Police. That is, if one starts from the position that the defendant should, to some extent, demonstrate his innocence then he must answer questions. If he does not answer questions put to him by the Police then he must have something to hide. The contention of misuse of the right cannot be substantiated unless one takes the initial position that a defendant must to some extent demonstrate his innocence.

However this contention is irreconcilable with our current system of law. A defendant is not required to assist the Police in its inquiries nor is he required to prove his innocence. Any qualification of the right to silence effectively diminishes that burden and leaves open the possibility of abuse by the State. At present the defendant has a right to silence and no adverse inference can be drawn from its exercise.³ However in the event the State Government makes the proposed changes, the right to silence will have little value.

Reasons for Exercising the Right
There are many reasons why a suspect may want to remain silent including their attitude towards Police, cultural characteristics, personal characteristics, communication factors, Police disclosure as well as shame or embarrassment. These reasons were canvassed when the Law Reform Commission explored the issue and produced their report on the Right to Silence in 2000.⁴

The proposed amendments will not apply to juveniles or persons with a mental disability nor will it apply to questions to which the suspect is not reasonably able to answer at the time. The amendments also state that they will not apply unless the defendant has had the opportunity to consult a solicitor. Apparently this means if the defendant's means and circumstances preclude him from contacting a solicitor they do not apply. However the amendments will apply to the many other possible situations referred to above.

No doubt the question of "opportunity to consult" will be the subject of extensive legal debate. What will constitute that opportunity having been afforded? If a suspect contacts his solicitor and is diverted to voicemail has he been afforded the opportunity? The provision is unclear and should not apply unless the suspect has received legal advice unless refused by the suspect.

Example of Silence Consistent with Innocence
Take for example a situation where a defendant is accused of a serious offence however asserts that at the time he was somewhere else. He may have an alibi witness who happens to be a woman with whom he is having an illicit affair. The woman may be the wife of the suspect's best friend, brother or motorcycle club president. Naturally the suspect will want to remain silent either to save his or her marriage or perhaps for reasons of personal safety. In these instances it is prudent to ensure that the alibi witness is locatable and prepared to testify before raising an alibi defence. In the event a defendant asserts he has an alibi but fails to effectively prove it in court, juries tend to be quick to convict.

Similarly, in the event a defendant advises Police he has an alibi but is unable to effectively prove it in Court he will lose credit. Conversely with the proposed amendments, if he fails to disclose to Police that he has an alibi but produces one in Court, the Prosecutor is permitted to instruct the jury to draw an adverse inference in regards to that evidence. So it seems whether the defendant answers Police questions or remains silent, he will still be subject to criticism from the State for reasons other than the strength of his evidence.

In theory, the proposed amendments will call into question the veracity of the defendant's evidence regardless of what he does. No doubt some will argue that where the alibi evidence is strong the jury is not likely to accept a Prosecutor's contentions that it's a recent invention or that the Prosecutor may not make such submissions. Whilst this may well be likely for the above scenario, the same rules will apply to all evidence and whilst the Crown may have difficulty making the argument where the defendant's evidence is strong, it will not have that trouble where the defendant's evidence is less strong. In the final analysis the question of the strength of the evidence is a legitimate issue but is distinct from the time it has been given. The proposed amendments will blur and to some extent extinguish that distinction.

Erosion of defendant’s rights over time
Over time there has been a significant erosion of defendant’s rights never to return.

For example to compensate for the fact that defendants are often the most disadvantaged of our society there was a time when they were permitted to provide dock statements which permitted a defendant to provide his view without being cross examined. However with increased literacy rates came a shift in position that defendants are now more able to withstand cross examination. However, defendants are still the most disadvantaged of society with research showing that the average IQ of suspects questioned, lies in the bottom 5% of the general population.⁵

For some offences there has been a shifting of the burden to the defendant.⁶

Police are now able to obtain a suspect's DNA profile with relative ease.⁷ When the defendant provides or is compelled to provide a DNA sample to Police, it is not unusual for the defendant to be excluded from the current investigation only to find a match to DNA found at some other crime scene. Accordingly, the legislation is not only about investigating the offence at hand but also about data gathering. Such orders compel a defendant to assist Police with its inquiries.

In certain lesser offences which were recently extended Police are no longer obliged to serve a brief on the defendant until the day of Court.⁸ It is argued the preparation of briefs burdens Police resources. However those briefs are still required to be ready on the day of the hearing so the burden is still there. The fact is these provisions simply make it more difficult for defendants to refute the charges because they do not know the evidence against them until they arrive at court. The amendments seem to be less concerned with expedience as they are about securing convictions.

Cross examination of victims in sexual assault matters has been significantly paired back and now defendants are not only not permitted to cross examine victims but their advocates are prevented from cross examination on certain issues.⁹

In terrorism cases suspects no longer have a right to silence and a refusal to answer questions is indeed an offence which carries a term of imprisonment. Further, in the event the suspect has no information relevant to the questions, he bears the burden of proving so.¹⁰

It may be that some of the above amendments have been for good cause and promote effective justice however the watering down of the right to silence is not amongst them. The issue was addressed by the Law Reform Commission in 1998 with its paper released in 2000. The Commission’s recommendation was that there should not be any change to the right.¹¹ The Commission came to that view by canvassing the various stakeholders including judges, magistrates and advocates as well as a review of the UK and Singapore system. The findings were that there was no evidence to substantiate a qualification of the right. The current government has announced its intention to water down the right to silence without any empirical evidence that such an amendment will enhance justice.

Political Purpose
Police often complain about the "wall of silence" they experience when investigating matters and the Police Commissioner with the Minister's backing was quoted by the Sydney Morning Herald as saying; The NSW Police welcomes anything that helps us break down this wall of silence.¹² The wall of silence comes from individuals not suspects that may have witnessed a crime but not be prepared to give evidence. The reduction of the right to silence does nothing to address this issue.

Final Analysis
All things being equal, the proposed amendments make it relatively easier for the Prosecution to prove its case and somewhat harder for the defendant to resist the charge however on the evidence, it will do little if anything to enhance justice.

¹ Law Reform Commission Report 95 (2000) Right to Silence at 2.3.
² Woolmington v DPP [1935] UKHL 1.
³ Petty v the Queen (1991) 173 CLR 95 at 97.
⁴ Law Reform Commission Report 95 (2000) Right to Silence at 2.115.
⁵ Law Reform Commission Report 95 (2000) Right to Silence at 2.121.
⁶ Drug Misuse and Trafficking Act 1985 (NSW) s 29.
⁷ Crimes (Forensic Procedure) Act 2000 (NSW).
⁸ Regulation 21 Criminal Procedure Regulation 2010 (NSW)
⁹ Criminal Procedure Act 1986 (NSW) ss 293,294(a).
¹⁰ Australian Security Intelligence Organisation Act 1979 (Cth) s 34L .
¹¹ Law Reform Commission Report 95 (2000) Right to Silence at 2.138.
¹² Sydney Morning Herald 14 August 2012 - www.smh.com.au/nsw/right-to-silence-law-changed-20120814-2462p.html#ixzz273M617jK.