The Evidence Amendment (Evidence of Silence)Bill 2012 (NSW):

‘Legislative Improvement or Procedural Unfairness?’

The Evidence Amendment (Evidence of Silence)

Corey Gauci- 2013

Bill 2012 (NSW): ‘Legislative Improvement or Procedural Unfairness?’

I. INTRODUCTION

In an effort to end the misuse of the right to silence pursuant to the Evidence Act1,

along with the steady rise of bikie gang related crimes, New South Wales

Premiere Barry O’Farrell has proposed amendments to the current Evidence Act2;

section 89 of The Evidence Amendment (Evidence of Silence) Bill 2012 (NSW)3.

Under the proposed Bill, Juries will be given the right to draw an adverse

inference, in certain situations, from a defendant’s silence during police

questioning4, representing a radical departure from current common law and

legislation5. Consequently, the Bill has come under intense scrutiny since its

proposal in late 20126. Advocates of the change highlight the current problems

affecting the police investigation process, and how the proposed Bill would

ultimately, assist officers in conducting their investigations and eliminate the

misuse of the ‘Right To Silence’ by criminals7. Alternatively, proponents of the

Bill highlight the complexities, injustices and breaches of human rights, which

flow as consequences of these changes to the law8. This paper will highlight the

various arguments, both for and against the proposed bill and assess the

workability of the Bill as part of the Australian legal system.

1 1995 (Cth)2 1995 (NSW)3 Anna Patty. ‘Right to Silence law changed’, Sydney Morning Herald (Sydney), 14th August 2012, 224 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW)5 Petty and Maiden (1991) 173 CLR 95; Evidence Act s 896 Letter from The Law Society of New South Wales to The Honorable Paul Lynch MP, 8 October 2012, 27 Anna Patty. ‘Right to Silence law changed’, Sydney Morning Herald (Sydney), 14th August 2012, 228 Ibid.

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II. THE HISTORY OF THE ‘RIGHT TO SILENCE’

The right to silence is a recent development, having come of age following the

introduction of the Criminal Evidence Act9 and the Judges Rules10. The English law

relating to the right to silence applied in NSW until 1891, when the defendant

became a competent witness in NSW11. The Evidence Amendment Act12 expressly

preserved the defendant’s right to remain silent by providing that the defendant

was a competent but not a compellable witness13. Two years later, the Full Bench

of the Supreme Court of NSW held that it was permissible to direct the jury to

draw adverse inferences from an accused’s failure to testify14, however, this was

eventually overturned in 190015. Finally, the Evidence Act16 codified the current

common law right to silence when questioned by police in NSW17.

III. COMMON LAW ‘RIGHT TO SILENCE’

Recent High Court decisions have reasserted the accuseds right to silence in the

face of police interrogation and the general prohibition on the judge and the

prosecutor saying anything in relation to the exercise of the right. In Petty &

Maiden v The Queen18, the court rejected the distinction between inferring

consciousness of guilt from silence and denying credibility to a late defence by

reason of earlier silence19. The majority, along with Brennan J agreed that to

permit adverse inferences would be to erode the right or render it valueless20.

9 189810 191211 Evidence Amendment Act 1891 (NSW)12 1891 (NSW)13 Evidence Amendment Act 1891 (NSW)14 R v Kops (1893) 14 LR (NSW) 15015 Accused Person’s Evidence Act 1898 (NSW) s1; replaced in 1900 by the Crimes Act 1900 (NSW) s40716 199517 Evidence Amendment Act 1891 (NSW)18 [1991]19 Petty & Maiden v The Queen [1991]20 Ibid.

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Moreover, the decision in Petty & Maiden v The Queen21, upheld policy

considerations insofar as rejecting inferences from the accused’s silence during

police interrogation, similarly raised by Deane J in Carr v R22 and Duke v R23,

where consideration was given to the appropriateness of directions to the jury

where police evidence consisted of an unsigned confession of a suspect in police

custody.

More recently, the High Court dealt with the right to silence in Azzopardi v The

Queen24 and Davis v The Queen25. Both cases are significant as they contain the

most recent judicial statements by the High Court concerning the right to silence

in Australia and the evidentiary consequences26. Both cases reaffirmed the right

to silence and the responsibility of the Crown to produce evidence against an

accused27. Both cases illustrate the underlying significance of silence during the

trial, the principles of which can be traced back to the questioning stages of the

investigation as a fundamental right in that, no adverse inferences can be drawn

against an accused who fails to give evidence during the investigation28.

21 [1991]22 [1988] HCA 47; (1988) 165 CLR 31423 [1972] S.C.R. 91724 (2001) 205 CLR 5025 (2001) 205 CLR 5026 Azzopardi v The Queen (2001) 205 CLR 5027 Ibid.28 Azzopardi v The Queen (2001) 205 CLR 50

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IV. ARGUMENTS FOR THE AMENDMENT

A. Improve efficiency and deterring the misuse of the right to silence

The proposed amendments purport to respond to the ongoing difficulties police

encounter in investigating gang-related shootings and other violence in Sydney,

and the challenges of prosecutors facing so-called ‘ambush defences’29. The

Government presents the reforms as a ‘common sense’ way of ‘closing a legal

loophole to stop criminals exploiting the system to avoid prosecution’ and

‘breaking the criminals’ code of silence’, which has been facilitated by the misuse

of the right by defendants30.

Conversely, Professor John Jackson has argued that ‘the police interview has

been transformed by the [English] legislation into a formal part of the

proceedings against an accused31. The demands this places on police may

outweigh any limited advantage they obtain from the reforms. As the New South

Wales Law Reform Commission noted, ‘empirical data does not support the

argument that the right to silence is widely exploited by guilty suspects’32.

Accordingly, there is no evidence that the current safeguards for an accused is

‘exploited’ in this way, nor that such a ‘code of silence’ commonly operates33.

Furthermore, the reference to ‘common sense’ is misleading in that, the

amendment would effectively raise complex practical and legal issues, which

may hamper police investigations, delay trials and generate numerous appeals.

29 Anna Patty. ‘Right to Silence law changed’, Sydney Morning Herald (Sydney), 14th August 2012, 2230 Ibid.31 Jackson, ‘Silence and Proof: Extending the Boundaries of Criminal Proceedings in the United Kingdom’ (2001) 5 International Journal of Evidence & Proof 145, 172.32 D Brown, PACE Ten Years on: A Review of the Research (Home Office, London, 1997) at 168-17133 Ibid.

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B. The need to guide juries

Jurors are aware that an accused can choose to provide a statement to officers

during the investigation process, and in the absence of such statement, jurors

often look with growing suspicion upon an accused that refuses to do so34.

Legal commentators argue that juries hesitate to draw an inference from the

defendant’s silence without receiving judicial guidance, however, this can only be

drawn through speculation, since in New South Wales, juries do not provide

reasons for their decisions35. Consequently, as the law currently stands, an

accused may not be aware of the weight that juries may place on an their

accused’s silence during the investigation process, which may adversely affect

the outcome of the trial36.

Accordingly, the Bill would provide the accused with a caution that the jury may

give weight to his or her refusal to provide a statement, which isn’t part of the

current caution provided to defendants, but nevertheless, may influence an

accused in assisting the investigating officers where possible, thereby providing

an accused with the consequences which may arise by failing to answer

questions during the investigation process.

C. The amendment would not abolish the right to silence

While opponents of the amendment propose that the changes would abolish the

right to silence, that of which is a fundamental right held by an accused,

proponents assure that the Bill does not have such a drastic effect in practice.

According to the European Court of Human Rights, the right to silence is not

absolute, and, if certain safeguards are provided, the Convention will not be

infringed37. The accused is not required to cooperate with police and answer

their questions or volunteer information38. 34 Jerry Siegel, Introduction to Criminal Justice (Wardworth Cengage Learning, 12th Ed, 2009) 457.35 D Harvey, “The Right to Silence and the Presumption of Innocence” [1995] New Zealand Law Journal 181 at 18636 Ibid.37 Murray v UK (1996) 22 EHRR 29; Adetoro v UK [2010] ECHR 60938 Ibid.

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However, if they do exercise their right to silence, the consequences may be that

an adverse inference is raised at trial, harming their defence39.

It is important to note that the adverse inference is not a sanction for failing to

cooperate with police, and the inference can only be drawn if it is ‘proper’40.

However, the threat of an adverse inference does place pressure on the suspect

to talk to police- this is one of its stated goals- and this pressure is inconsistent

with the suspect’s right to silence41, thereby breaching other rights held by an

accused regardless of the fact that the inference is not a sanction for failing to

cooperate with police.

V. ARGUMENTS AGAINST THE AMENDMENT

A. S89A(1)- Shifting the onus of proof & presumption of innocence

Civil libertarians argue that the Bill represents a clear shift in the burden of proof

in the criminal trial42, also being described as “a back-door way of changing the

onus and standard of proof which has for centuries been on the crown to prove

its case beyond reasonable doubt”43. If it is permissible for silence under police

questioning to reinforce the prosecution’s case, this must have the effect of

putting pressure on suspects to give answers or run the risk that they will

strengthen the evidence against them44. In effect, this removes the pre-existing

right to say nothing without significant penalty45, which critics argue, is a clear

watering down of the prosecution’s burden of proof46, which has proven to be a

fundamental right in the course of procedural fairness and may produce

unfavorable decisions if such onus is removed.

39 Murray v UK (1996) 22 EHRR 29; Adetoro v UK [2010] ECHR 60940 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) s89A(1)41 Petty and Maiden (1991) 193 CLR 9542 Anna Patty. ‘Right to Silence law changed’, Sydney Morning Herald (Sydney), 14th August 2012, 2243 Ibid.44 Vivian Lord, and Allen Cowan, Interviewing in Criminal Justice: Victims, Witnesses, Clients, and Suspects’ (Jones & Bartlett Publishers, 1st Ed, 2011) 22945 Evidence Act 1995 (Cth) s8946 Anna Patty. ‘Right to Silence law changed’, Sydney Morning Herald (Sydney), 14th August 2012, 22

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B. S89A(2)(b)- Opportunity to consult an Australian legal practitioner

Solicitors are only in a position to give proper advice when they are fully

apprised of the case against their client and the surrounding circumstances47. It

is difficult to conceive of a situation where a solicitor could properly advise a

client about the effects of the Bill on the telephone. Furthermore, the amendment

has the potential to create a conflict on interest where a solicitor may be called

upon by the courts to give evidence of the reasons for advising an accused to

remain silent48.

Consequently, opponents of the Bill are concerned that the proposed amendment

would create an intolerable ethical dilemma for solicitors, resulting in a solicitor

refusing to advise an accused49.

C. S89A(4)- Supplementary caution requires no particular form of words

The experience in England suggests that the majority of defendants do not

comprehend the full import of the secondary caution50. Research conducted after

the introduction of the more complex caution in England, showed that only 11%

of the sample groups were able to demonstrate full understanding of their ‘Right

To Silence’51. Consequently, section 89A(4) elevates the likelihood of defendants

failing to understand the caution.

Fittingly, the amendment should enforce a particular set of words for the

caution. As it is now framed, the Bill covers a wide range of offences52. Non-police

47 Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 548 Janine Griffiths-Baker, Serving Two Masters: Conflicts of interest in the modern law firm (Hart Publishing, 1st Ed, 2002), 32549 Ibid.50 Susanne Fenner, Gisli Gudjonsson, and Isabel Clare, ‘Understanding of the current police caution (England and Wales) among suspects in police detention’ (2002) 12(2) Journal of Community & Applied Social Psychology 83-9351 Ibid.52 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) s89A(1)

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authorities, which may not regularly arrest or question persons, deal with a

number of these offences53.

A particular form of words for the supplementary caution would reinforce

consistency amongst investigators54, and eliminate the risk of the accused

misunderstanding the supplementary caution, which could ultimately affect the

procedural fairness of the case and be used as a point of appeal at the conclusion

of the case.

D. S89A(5)- Serious indictable offence

The Law Enforcements (Powers and Responsibilities) Act55 (LEPRA) defines a

‘serious indictable offence’ as an indictable offence that is punishable by

imprisonment for life or for a term of 5 or more years56. Accordingly, there exists

a wide range of offences which fall under the category of ‘serious indictable’

ranging from, murder to the assault of a police officer. DPP v Carr57 highlights a

situation where police error in handling a hostile situation, ultimately led to the

commission of an offence, which while minor in nature, held a maximum

imprisonment term of 5 years. Accordingly, the amendment would cover a

variety of offences, those of which were not intended affected by the provisions

of the amendment.

Fittingly, the Bill should provide a narrower definition for which, the amendment

would apply, taking into account that there are crimes, which while being

classified as a serious indictable offence, may not necessarily include the severity

that the amendment aims to cover in its application, nor should be subjected to

the consequences that the Bill would produce against a defendant.

53 i.e. Making a false declaration is an offence, which carries a maximum of 5 years, which is routinely investigated and prosecuted by regulatory agencies54 (Police and non-police)55 (2002)56 Law Enforcement (Powers and Responsibilities) Act 2002 (Cth) s357 [2002] NSWSC 194

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E. S89A(6)- Supplementary caution does not apply to an accused under 18 years of

age or who has a cognitive impairment

The Bill provides that cognitive impairment includes; an intellectual disability, a

development disorder, a neurological disorder, dementia, a severe mental illness,

and a brain injury58. An individual may choose to exercise the ‘Right To Silence’

when questioned by investigating police59, citing; shock or confusion by the

allegations, drug or alcohol intoxication, or inarticulate and/or poor English

skills; that of which is not dealt with in the Act60. Studies highlight the existence

of an enhanced risk of susceptibility to coercion and failures of understanding

when questioned, in particular, when recounting facts to police during the

interrogation process61. Accordingly, it would seem more appropriate that

s89A(6) be amended to refer to the definition of “vulnerable person” under

regulation 24 of the Law Enforcement (Powers and Responsibilities) Regulations

2005 (LEPRR). Consequently, if s89A(6) was replaced with the definition of

“vulnerable person” under Regulation 24, those who fail to answer questions by

investigating police due to shock, confusion or lack of English skills, would be

exempt from s89A as it would be unreasonable to allow juries to make an

adverse inference if there are valid reason for the accused’s failure to answer

questions which the Act fails to adequately address.

F. S89A(7)- Opportunity to consult

Unfortunately, 24-hour advice is not always readily available in most regions of

NSW outside of Sydney62. Moreover, the consideration of the defendant’s means

58 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) S89A (10)59 Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 260 Ibid.61 Michael Davis ‘Criminal Investigative analysis in the Australian Context’ (2006) InPsych Journal 33, 3462 Deborah Rhode, and Ernest McFarland, Access to Justice (Oxford University Press, 1st Ed, 2004) 216

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when assessing the right to consult with a legal practitioner could lead to

inconsistencies in the application of s89A, leading to adverse consequences for

the accused63.

This leads to the obvious conclusion that it is all but pointless to introduce the

proposed legislation successfully without a fully costed and funded advice

support infrastructure to assist the accused prior to questioning, regardless of

the means of the accused, or the time or place of the questioning throughout

NSW64. It is necessary to note that the Attorney General has proposed to trial a

telephone advice line by lawyers to give an accused access to a legal practitioner,

however, the Bill does not include a requirement for the continuation of such a

service in the future65.

G. S89A(8)- Non-derogation from any requirements imposed by law on an

investigating body

LEAPRA provides that the maximum investigation period is 4 hours or such

longer period as the maximum investigation period may be extended to by a

detention warrant66. If a legal practitioner was required to provide adequate

advice to an accused, they would need to have time to consider the import of that

information, before providing legal advise to the accused as required by s89A

2(b)67.

Consequently, detention time is likely to increase as a result of added pressure

on legal practitioners in providing advise to the accused, while also placing an

added burden on the police during the investigation process68. Accordingly, the

additional supplementary caution would not only add a greater burden on the

investigation process, but may also potential breach the provisions regulating

the detention of an accused for the purpose of question, thereby interfering with

63 Evidence Amendment (Evidence of silence) Bill 2012 (NSW) s89A (7)64 Deborah Rhode, and Ernest McFarland, Access to Justice (Oxford University Press, 1st Ed, 2004) 21665 Ibid.66 Law Enforcement (Powers and Responsibilities) Act 2002 (Cth) S114 67 Graham Robertson, Richard Pearson, and Robert Gibb, ‘Police interviewing and the use of appropriate adults’ (1996) 7(2) The Journal of Forensic Psychiatry, 2268 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) s89A(2)(b)

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personal freedom and liberties which LEPRA intends to uphold through its

application during the investigation process.

H. The failure of the English reforms

The NSW Government has acknowledged the fact that it bases its reform on s 34

of the English Criminal Justice and Public Order Act69. However, the English

legislation is generally viewed as unsuccessful and problematic. In 1999

Professor Diane Birch conducted a cost-benefit analysis of the English

provisions, concluding that ‘the demands on judge and jury of the complex

edifice of statutory mechanisms are enormous in proportion to the evidential

gains they permit’70. In 2001 Professor Roger Leng stated that ‘far from

facilitating the exercise of common sense, the effect… has been to introduce

unnecessary complexity and to distort the process of fact-finding71. Finally, in

2005 the English Court of Appeal, noting the flood of appeals generated by the

legislation, described it as ‘a notorious minefield’72. Consequently, the experience

of the proposed amendment in England highlights the potential difficulty and

strain it would place on the Australian legal system.

Finally, while the government purports to base the amendment English

equivalent of s89A, a number of provisions found in the English equivalent, most

notably the requirement of the presence of a custody officer at police stations

has been omitted from the proposed amendment. Such omission has grave

consequence on the application of the changes, and accordingly, significantly

differs to the English equivalent, which leads one to question why such a

provision is necessary in the English legal system but not the Australia.

69 199470 DJ Birch, ‘Suffering in Silence’: A cost-benefit analysis of s34 of the Criminal Justice and Public Order Act 1994’, [1999] Crim LR 769, 787.71 R Leng, ‘Silence pre-trial, reasonable expectations and the normative distortion of fact-finding’ (2001) 5 International Journal of Evidence & Proof 240, 24172 Beckles [2005] 1 WLR 2829

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I. International Human Rights Obligations

There has been significant debate as to whether the Bill breaches Australia’s

human rights obligations under the International Covenant on Civil and Political

Rights73. The amendment would derogate from article 14(2)74; the presumption

of innocence75. The amendment is also inconsistent with the rights of an accused

under article 14(3)(b) and (g)76; requiring an accused have adequate time and

facilities for preparation of his defence and to communicate with counsel of his

own choosing, subsequently providing that an accused shall not be compelled to

testify against himself or to confess guilt77. Consequently, there is concern that

the amendment would offend human rights obligations of which, Ausralia is

signatory to, and thus, should reconsider Australia’s obligations under such

covenants before passing the amendment.

VI. CONCLUSION

The proposed amendment to the Evidence Act78 appears to be a contentious

topic, which elicits both positive and negative arguments as to its application,

and effect on the Australian legal system and its citizens. While there exists valid

reasons from both sides of the debate, nevertheless, the Bill requires further

consideration if the amendment is to be successful in its function. Otherwise,

there is no doubt that the bill would remove safeguards, which have been

73 Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 574 International Covenant on Civil and Political Rights, opened for signature 16 December 1954, 999 UNTS 3 (entered into force 23 March 1976)75 Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 576 International Covenant on Civil and Political Rights, opened for signature 16 December 1954, 999 UNTS 3 (entered into force 23 March 1976)77 Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 578 1995

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entrenched in Australia legal jurisprudence; making the legal system a safe and

fair system of law enforcement in Australia.

Bibliography

Articles/ Books/ Reports

Birch, DJ, ‘Suffering in Silence’: A cost-benefit analysis of s34 of the Criminal Justice and Public Order Act 1994’, [1999] Crim LR 769, 787.

Brown, D, PACE Ten Years on: A Review of the Research (Home Office, London, 1997) at 168-171

Davis, Michael ‘Criminal Investigative analysis in the Australian Context’ (2006) InPsych Journal 33, 34

Fenner, Susanne, Gisli Gudjonsson, and Isabel Clare, ‘Understanding of the current police caution (England and Wales) among suspects in police detention’ (2002) 12(2) Journal of Community & Applied Social Psychology 83-93

Griffiths-Baker, Janine, Serving Two Masters: Conflicts of interest in the modern law firm (Hart Publishing, 1st Ed, 2002), 325

International Covenant on Civil and Political Rights, opened for signature 16 December 1954, 999 UNTS 3 (entered into force 23 March 1976)

Jackson, ‘Silence and Proof: Extending the Boundaries of Criminal Proceedings in the United Kingdom’ (2001) 5 International Journal of Evidence & Proof 145, 172.

Harvey, D, “The Right to Silence and the Presumption of Innocence” [1995] New Zealand Law Journal 181 at 186

Leng, R, ‘Silence pre-trial, reasonable expectations and the normative distortion of fact-finding’ (2001) 5 International Journal of Evidence & Proof 240, 241

Letter from The Law Society of New South Wales to The Honorable Paul Lynch MP, 8 October 2012, 2

Lord, Vivian, and Allen Cowan, Interviewing in Criminal Justice: Victims, Witnesses, Clients, and Suspects’ (Jones & Bartlett Publishers, 1st Ed, 2011) 229

Patty, Anna, ‘Right to Silence law changed’, Sydney Morning Herald (Sydney), 14th August 2012, 22

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Rhode, Deborah, and Ernest McFarland, Access to Justice (Oxford University Press, 1st Ed, 2004) 216

Robertson, Graham, Richard Pearson, and Robert Gibb, ‘Police interviewing and the use of appropriate adults’ (1996) 7(2) The Journal of Forensic Psychiatry, 22

Siegel, Jerry, Introduction to Criminal Justice (Wardworth Cengage Learning, 12th Ed, 2009) 457Case Law

Adetoro v UK [2010] ECHR 609

Azzopardi v The Queen (2001) 205 CLR 50Beckles [2005] 1 WLR 2829

Carr v R [1988] HCA 47; (1988) 165 CLR 314

Davis v The Queen (2001) 205 CLR 50

DPP v Carr [2002] NSWCR 194

Duke v R [1972] S.C.R 917

Murray v UK (1996) 22 EHRR 29

Petty and Maiden (1991) 173 CLR 95

R v Kops (1893) 14 LR (NSW) 150

Legislation

Accused Person’s Evidence Act 1898 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (Cth)

Evidence Amendment Act 1891 (NSW)

Evidence Amendment (Evidence of Silence) Bill 2012 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (Cth)

Oaths Act 1900 (NSW)

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