The right to silence has been watered-down in recent times and it has been suggested that there are situations when exercising your right to silence might now be against your interests when it previously may not.
To discuss this issue, let’s look at the changes.
In 2013, an addition to the NSW Evidence Act meant that the right to silence was fundamentally altered.
If, under the new law, you fail to mention something during a police interview that you later want to rely on, and if you could have reasonably been expected to mention this fact at the time, the court can draw a negative inference from this fact.
Previously, this was not the case and your silence could not have been used against you.
However, there are three important exceptions to the new rule:
- Where you are under 18;
- Where you don’t have a legal practitioner present; and
- Where you are charged with anything other than a serious indictable offence
Police must now issue you a special caution which can be something along the lines of:
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?
The special caution must be given in the presence of an Australian legal practitioner.
The reasoning behind the watering-down of the right to silence is essentially that if you have such a convincing and plausible-sounding argument in court, why didn’t you share it when you were first arrested?
Obviously the inference is that you had plenty of time to think up a good excuse or alibi in between your arrest and your trial.
However this line of thought is misleading.
There are many good reasons why innocent people may be better off not speaking during a police interview.
Studies have shown, time and time again, that sometimes innocent people confess to crimes or say things that aren’t true because of police pressure, fear and extreme stress – which can all come about during the process of being arrested.
The worst thing you could do if you in such situations is to answer questions and possibly incriminate yourself by saying something that is not accurate.
Often participating in a police interview can make your situation worse.
The NSW Council for Civil Liberties president Cameron Murphy expressed the fear that even innocent people may end up doing just that.
Another risk you may face is that of amateur plea bargaining, where police suggest that they will ‘go easy on you’ and press lighter charges or let you out of the police station ‘on police bail’ if you cooperate.
This can be advantageous for those who know what they are doing but if you don’t, you may well be taken advantage of.
In fact, we hear from our clients time and again that they participated in a police interview through fear of being locked up for the night or receiving more serious charges.
We repeatedly hear of police telling our clients that, if they cooperate, the whole process will be easy and they will just get a ‘slap on the wrist’ in court.
But they end up being charged with very serious offences and making the job of their defence lawyer a great deal harder.
Are there any situations where my right to silence does not apply at all?
Yes.
There is certain information that you MUST provide to police, even if you are not under arrest.
According to Law Enforcement (Powers and Responsibilities) Act, you have to give your name to an officer if they suspect on reasonable grounds that you may be able to assist in the investigation of an alleged offence.
If police are issuing a move on order, they may also request your identity.
There is no right to silence here.
Not providing your real name and address to police is an offence, and it can give them reason to suspect you might not turn up to court for your hearing.
And if they believe this, you could be arrested to make sure you do attend court.
How can I use my right to silence to my advantage?
Even if you are afraid of not speaking, remember that this new caution doesn’t kick in unless your lawyer is present at the police station.
In other words, your lawyer must be there in person and acting for you as your legal representative at the time.
This has made many police officers happy because it essentially keeps lawyers from attending the police station to protect their clients. In such an environment, it can be argued, people who are under arrest are ‘fair game’ for police and much more likely to participate in police interviews.
It has led to the practice where a client will see a lawyer before being arrested and then attend the police station on their own.
Equally, it often means that a person who has already been arrested will only be able to speak with their lawyer over the phone, which can be less-than desirable or discrete.
Your right to silence is not just a trick for criminals – many innocent people can be trapped by their own words.
Nerves, confusion, fear and pressure from police can all cause you to say things you didn’t intend.
If you give an account which later turns out to have inconsistencies, however minor or accidental, it may cast a negative light on the credibility of your whole story.
So at the end of the day, it is far better not to participate in a police interview until and unless you have first spoken with an experienced criminal lawyer who has formed the view that, in your particular situation, there may be a special reason to do so.
Also, there is no legal requirement that you must go in front of the video camera to record the fact that you don’t want to participate in an interview.
In fact, we advise our clients NOT to go in front of the video camera at all. We also make sure that we advise police not to force our clients to enter the ‘interview room’. This is because unscrupulous police have been known to start asking questions or ‘putting allegations’ after the camera starts rolling regardless of the arrested person’s request.
And don’t sign anything except bail forms until you speak to a lawyer.
