By Paul Gregoire and Ugur Nedim
Although, it’s been under threat in NSW over recent years, the right to silence is still a fundamental principle in common law. It allows a suspect to refuse to answer police questions during an interview, as well as refraining from giving evidence whilst on trial.
This right reflects that it’s the prosecution’s job to prove the accused guilty. Indeed, the reasoning behind it is set out in international law. Article 14 of the International Covenant on Civil and Political Rights states that a person is “not to be compelled to testify against himself or to confess guilt”.
On being arrested, a suspect is taken to a police station and officers will attempt to interview them. However, under the law, the interviewee is only required to provide their name, address and date of birth. And they can simply answer “no comment” to any other questions.
Arresting officers must make a suspect aware of their right to not answer their questions. This is known as a “caution”. It outlines that the suspect doesn’t have to respond to questioning, as well as that anything they say or do can be used against them as evidence.
Historically, jurors have been advised that they can’t make an unfavourable inference in regard to an accused exercising their right to silence “during official questioning”. However, as of 2013, for those charged with a serious indictable offence jurors can perceive this adversely.
Questionable covert operations
At a recent NSW Supreme Court voir dire hearing – which is part of a trial where the jury is absent – Justice Peter Hamill heard that, rather than respect their suspect’s right to silence, two police officers simply continued their line of questioning in an attempt to garner evidence.
Moudasser Taleb stood trial in March this year charged with one count of doings acts preparatory to engaging in hostile activity in a foreign country, contrary to section 119.4 of the Criminal Code 1995. The maximum penalty for this offence is life imprisonment.
Over February to June 2017, the now 24-year-old Panania local was the subject of a controlled operation, under the provisions of the Law Enforcement (Controlled Operations) Act 1995. This involved an undercover officer advising him on his preparations to go to Syria to fight for Islamic State.
Over the four days of proceedings that related to the admissibility of evidence, four witnesses were examined, and 3,000 pages of material were tendered. And the defence objected to much of the evidence, citing a number of distinct areas of grievance.
These included claims the undercover officer encouraged the suspect to commit the offence, that it was out of his jurisdiction to be covertly investigating a federal crime, as well as objections to the way officers carried out the electronically recorded interview.
Misunderstanding the process
Following his arrest on 15 June 2017, Mr Taleb was interviewed by two police officers: Detective Goodhew – the undercover operative – and Detective Senior Constable Alam. This went on for some three and a half hours, despite the suspect stating that he’d like to exercise his right to silence from the start.
After Taleb waived his right to request a lawyer and acknowledged twice more that he wished to remain silent, Detective Alam told the suspect that they’d “just finish with the process”. However, the officers proceeded to ask their questions, whilst refusing to tell Taleb what he was being charged with.
The suspect repeated his initial request to remain silent a total of six times during the interview. As the barrage of questions and allegations continued, Taleb ended up providing multiple answers.
On giving evidence at the voir dire hearing, Detective Goodhew admitted that it was his understanding that just because an interviewee invokes his or her right to silence it doesn’t mean the “persistent questioning of a suspect” has to stop.
No process to follow
Justice Hamill pointed to the 1970 High Court of Australia case The Queen versus Ireland, in which the court outlined that the “rule of practice” in these circumstances is that it’s “improper for police… to persist in questioning a suspect after an indication” that they won’t be answering.
However, the High Court justices also found that evidence obtained whilst breaching the rule does not automatically become inadmissible, and at that point, a judge has to consider whether the evidence should be excluded.
His Honour explained that under section 139 of the Evidence Act 1995, evidence obtained after failing to caution a suspect is inadmissible, whereas there’s no such provision due to “a failure to respect a suspect’s clear statement that they wish to remain silent”.
But, according to the justice, the officer’s questioning of Taleb was “inadmissibly persistent”. And while police continued to assert they were merely completing the process, there clearly wasn’t one they were required to pursue. However, their assertion would have convinced Taleb that there was such a process.
Given the importance of maintaining “the right against self-incrimination”, along with the desirability that interviews are terminated once a suspect states that they won’t be answering questions, Justice Hamill ruled on 8 March this year, that the evidence ascertained in the interview was inadmissible.
Eroding the right to silence
The O’Farrell government inserted section 89A into the Evidence Act back in 2013. And due to its inclusion, the fact that Mr Taleb refused to give evidence can now be taken by the jury as something of an admission of wrongdoing.
At the request of NSW police, the state government changed the law so that these days, if like Taleb, a person has been charged with a serious indictable crime – an offence that carries at least 5 years prison time – exercising their right to silence may harm to their case.
As foreseen at the time of the law change, this has led to lawyers not attending the police station for fear they’ll hinder their client’s right to silence, as well as enabling police to use tactics which elicit versions of events that suit them.
Guilty as charged
As for Taleb, after pleading his innocence, he was nevertheless found guilty of the federal criminal offence earlier this month. It took the jury less than five hours to reach the verdict. On 10 May, Justice Hamill will be back in the court to hear sentencing submissions.