The Right to Remain Silent

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All Australians used to have the right to remain silent. You might even think we still do. But as of last year, words to the effect of “you have the right to remain silent” now firmly belong in the domain of a standard Hollywood crime thriller.

No, it’s not quite that dramatic, and you do still have the right to remain silent, but as of late last year, the court is allowed to draw negative inferences from a failure to mention something you later want to rely on.

This applies in NSW unless:

  • You are under 18 years of age
  • You did not have a legal practitioner available
  • You are charged with a something other than a serious indictable offence

The new caution that police will give people charged with an offence is: “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 change was introduced by former Premier Barry O’Farrell and came into effect in late 2013 and follows similar reforms in the UK over 15 years ago.

The change of this ancient right was brought about in order to combat situations where a defendant refused to answer police questions but later on attempted to come up with an explanation that should have been given at the time. This of course, leads to the inference that it was invented in the interim.  Police say that professional criminals had been exploiting this right, making it harder for police to get convictions.

However NSW Council for Civil Liberties president Cameron Murphy said that this new law may pressure people, even innocent people, into answering questions and end up incriminating themselves.

Changes surrounding the right to silence may end up being a case of hanging the innocent with the guilty, which seems to miss the point of the protection in the first place. The protection in criminal trials is afforded to even out the balance between a considerably better resourced state pitted and an individual. It also places the onus of proof clearly on the prosecution. Focusing on how guilty people manipulate the system may not be looking at the question the right way: rather the focus should be on how the right is used by innocent suspects.

According to the law, for a serious indictable offence, unfavourable inferences (once not allowed) may be drawn if a defendant didn’t mention something which:

  • he or she could reasonably have been expected to mention in the circumstances; and
  • is relied on by the defence in the proceeding

This legislation also overrides centuries of case law, which protected the right to silence from adverse inferences, and made it clear that a dramatic change in story or a sudden explanation will not be viewed without caution.

This might also have an impact on how a case is decided – the onus is supposed to be on the prosecution to prove the crime while the defendant was supposed innocent until guilty. Now it appears, this can be undermined before the defendant even opens their mouth.

The origin of the right evolved centuries ago, at a time when unpopular English courts had the power to summon and interrogate a person, on pain of punishment. One of these courts was the ominous ‘Star Chamber’, where sessions were held in secret, with no witnesses or indictments (formal accusation of the crime). When these courts were abolished, the idea emerged that people should not be compelled to incriminate themselves, and it solidified over time to be a protection for the accused.

A little over 100 years ago the right for the accused to be made fully aware that he or she had the right to remain silent before questioning was included under this protection.

The right to silence has not been without critics – in the eyes of many, silence implies guilt as the assumption is that innocent people, if falsely accused, would instinctively want to defend themselves. However these assumptions ignore the many other reasons that an innocent person may want to remain silent – the truth may be embarrassing, or incriminate someone else that they are trying to protect. They may also believe that the police will distort their answers.

Police, armed with legal knowledge and specialised training are at a distinct advantage when investigating the average person they have pulled in for questioning who may have a limited understanding of the law or their rights. It is these people that the new law is likely to end up unfairly targeting, not professional criminals.

To find out more about your rights during a police interview, click here.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.