Your right to silence – Going, Going, Gone?

The State Government of New South Wales recently announced an intention to alter the law that has for centuries provided community members the protection of the right to silence. The proposed changes are a cynical attempt to abolish the right to silence by actively discouraging anyone from ever seeking its protection. The (limited) reasons said to justify the change are either not explained, or misrepresent the current law. Worst, the law will see a person suspected of committing a serious criminal offence, denied the basic level of procedural fairness afforded a defendant in any other legal proceeding.

The Proposed Changes

At the time of writing this article the New South Wales’ Government has not produced a Bill detailing the terms of the law proposed. Despite the significance of the change all we have to date are statements to the media.

The change contemplates Police informing a suspect, not that they have a right to silence, but rather:

“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 and do may be given in evidence. Do you understand?”.

Further, and consistent with the new form of “caution”, a Court will be permitted to instruct a jury that they can draw “an adverse inference” (negative conclusion) about defence evidence that was not disclosed at the time of police questioning.

The clear intention is that the potential for “harm”, the adverse inference, will arise if a person fails to respond to questions but later gives or calls evidence in their defence. The result is that the right to silence will only apply in any real sense to a defendant who remains silent throughout a trial.

The reason the law currently provides a defendant cannot be criticised for exercising the right to silence is that to do so would so undermine the right as to make it no right at all. The principle is as obvious as the government’s intention to undermine the right.

“Do you understand?”

The simple, I expect universal answer, is “no”. The fact the standard form of caution ends with these words borders on farcical.  Who is it lawmakers expect will understand, all those rogue legal academics unfortunate enough to attract the suspicion of police?

For any other member of the community, what on earth does “may harm your defence mean”? What sort of “harm” are we talking about?

The sad reality, and cynical intention, is that most will simply assume they have to speak to Police if they wish to avoid some undefined but worrying disadvantage. A surprising number of suspects already believe that without any encouragement. This is the result those pushing to change the law seek to achieve.

An obvious question that highlights the absurdity of the caution might be framed as follows:

“Let me get this right, I have a legal right not to answer questions but I’m going to suffer harm if I exercise my right?  That’s my choice?”

One wonders what if any standard Police procedure will apply to better explaining the “caution”. Will individual officers, intent on having their questions answered, be left to explain and no doubt exaggerate the question of “harm”?

The Real Crime – A Source of Entrapment

In Petty v Maiden (1991) the High Court said:

“…the denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference…against the accused by reason of his or her exercise of the right of silence.  Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment.”

The term entrapment is appropriate. The law seeks to pressure a suspect to outline their defence the moment they are approached by Police. There is no obligation on Police to first provide the particulars and evidence in support of an allegation. Police will not do so. They will withhold information to gain a tactical advantage in the interrogation process consistent with current, longstanding practice.

A suspect may not know any more than the short title of the offence under investigation. The interrogation might concern events years and decades past. Will any regard be had to stress, intoxication, lack of sleep, physical injury, mental illness, intellectual disability, language difficulties, age, or the availability of legal representation?

The real crime is the fundamental denial of procedural fairness. A suspect in a criminal investigation is expected to deal with questions fired at them that will determine how their entire case is conducted without being afforded any chance to know the case against them.

No other defendant to a legal proceeding is expected to disclose their defence until the party bringing the case discloses the detail of their case. A right thinking community would never tolerate a justice system that allowed one party to say no more than, “I accuse you of negligence/breach of contract/sexual discrimination…” then expected the other to defend themselves or suffer the consequences. Why then is someone who faces the serious consequences that flow from a criminal prosecution placed in such a position of disadvantage?

The change also operates to white ant other fundamental protections – the presumption of innocence and the prosecution’s obligation to prove its case. To suggest a suspect must explain themselves or suffer “harm” is tantamount to obliging a person to establish their innocence or face charge and conviction.

The Arguments For (such that they are)

The rhetoric from the Premier and Attorney General suggests the changes are necessary to avoid cases in which those involved in organised crime have abused the system. None of the media reports contain the details of one such case let alone a pattern of cases justifying such a drastic change to the law.

Even if an argument appealing to the right of the community to know and answer a case advanced by a defendant was given some credence the proposed changes are not about disclosure in that sense. The law does not create an obligation to disclose relevant matters prior to trial, it creates an apparent obligation to provide information (as required by Police questioning) the very moment an accusation is first communicated. Any attempt to dress the argument up in the language of disclosure is disingenuous at best.

The case management provisions of the Criminal Procedure Act already empower a Court to order defence disclosure in certain cases. Every defendant is required to put their defence to relevant prosecution witnesses before calling or giving evidence.

There is a suggestion in some media reports the laws are required to prevent the prosecution from being “ambushed” by a “cooked up” alibi. The argument is misleading. The current law obliges a defendant to provide a Notice of Alibi well in advance of any trial and has done so since 1974. The whole purpose of that law is to afford Police an opportunity to investigate the matter.

It is suggested from some quarters the current law protects a suspect from criticism who answers police questions, provides some information, but then provides additional information that takes the prosecution by surprise. Again that is not the law. The law provides that such a person has waived their right to silence by answering questions. The prosecution is perfectly entitled to criticise any inconsistencies in the accounts of an accused.

Another spurious justification is reference to Police concerns witnesses to organised crime are not co-operating with Police investigations – the so called wall of silence. This is an entirely different issue.  The current proposal is not directed at witnesses but at suspects. Nor is the proposal limited to matters of organised crime.

Honest Police?

Credit where due. At least the statements from Police to the media are far more transparent. They confirm the law is really designed to discourage the use of the right to silence and press suspects into participating in Police interviews.

The arguments for the Police erroneously refer to what criminals can and can’t, will and won’t do. The argument misses the point that the changes are directed at all suspects, not criminals. The vast majority of Police investigations are based on an accusation by a member of the public the truth of which Police can only guess at.


The proposed changes make proper legal advice even more important, if not vital. Bosscher Lawyers has decades of experience protecting the rights of suspects and defendants.

The mere fact of seeking and receiving expert legal advice not to answer questions will stand as a shield against any attempt to criticise that decision made on advice.

We can assist you determine what (if any) tactical advantage there is in providing information to Police. That decision should be made in full knowledge of all the facts and with the benefit of expert advice, not on the spur of the moment.

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