In March 2013, the New South Wales ('NSW') Parliament passed the Evidence Amendment (Evidence of Silence) Act 2013 (NSW) ('Evidence Amendment Act'), qualifying the long-standing absolute right to silence. This paper seeks to analyse this recent law reform and argues that it is highly problematic and unnecessary for three reasons. First, the reform is a response to perceived problems in the criminal justice system that are arguably illusory. Even if the problems are manifest, it is unclear whether the reform would be effective in resolving them. Second, the qualification of the right to silence is beset with philosophical difficulties associated with the inappropriate undermining of fundamental legal principles including the presumption of innocence. Third, the reform is complicated to apply and introduces into NSW significant practical difficulties that are observable in the other (few) jurisdictions which have similarly restrained the right to silence, in particular England and Wales. This paper concludes that in light of such glaring difficulties and problems, which were made clear to the government by virtually every major criminal law stakeholder in the form of submissions strongly opposing the reform, the Evidence Amendment Act cannot be considered a genuine attempt at law reform in the sense of making changes to improve the law. Rather, it is arguable that the reform is an example of ill-conceived and populist legislation by a NSW government attempting to appear 'tough' on crime in response to recent media coverage of the activities of organised crime gangs operating in Sydney.
The right to silence is generally considered a fundamental legal right, protected in virtually every major common law jurisdiction. The right ensures that suspects being questioned by police and defendants in a criminal trial can remain silent without any detrimental legal consequence. It exists as a protection of individual liberty, preventing the State from compelling a person to provide information or confessing to an offence, as occurred in more ancient times, often in response to torture. In this way, the right to silence also serves to strengthen other fundamental legal rights in most common law jurisdictions, including the presumption of innocence and the privilege against self-incrimination. No suspect or defendant may be compelled to speak in his or her own defence since it is the State that must prove guilt. However, despite its fundamental importance, in March 2013, the NSW Parliament passed the Evidence Amendment Act, significantly affecting the right. Under the new legislation, the right to silence is no longer absolute in NSW. Rather, in some circumstances, an adverse inference may be drawn by the court against defendants who elect to remain silent during police questioning and who fail or refuse to mention a fact that they ought reasonably have mentioned and which is later relied on in their defence.
The reform has generated significant controversy. This is understandable given that its effect is to intrude upon a long-held and fundamental legal right. However, arguably more importantly and no doubt because of this, the reform is highly controversial since its enactment occurred despite strong opposition from numerous experts and virtually every major stakeholder in the criminal justice system. The reform was also enacted despite contrary recommendations from the NSW Law Reform Commission ('NSWLRC') and even a recent Scottish report that advised against similar legislative change in that jurisdiction. Given this particular context, this paper seeks to examine the restrictions placed on the right to silence in NSW. After summarising the main elements of the reform and outlining the government's rationale behind them, this paper will argue that the reform does not achieve any of the government's stated rationales, thus rendering it unnecessary. Moreover, the reform introduces into NSW a range of philosophical and practical difficulties. …