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New South Wales Right To Silence Reforms: Maximum Admissions, Minimum Silence

Bastow, Colleen (2014). New South Wales Right To Silence Reforms: Maximum Admissions, Minimum Silence<br />. : .

Document type: Research Report
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Author Bastow, Colleen
Title of Report New South Wales Right To Silence Reforms: Maximum Admissions, Minimum Silence
Publication Date 2014
Total Pages 43
Abstract The Right to Silence ('Right') is a fundamental individual right, that is applied to both the common law and civil law legal traditions. This paper will focus on the criminal law provisions,  whereby the Right is underpinned by the common law and statutory principles of the presumption of innocence, the right to not have to testify at trial, the privilege against self-incrimination  ('Privilege') and the right to a fair trial. These principles form an integral part of our criminal  justice system, protecting the accused from compulsory or overbearing state interrogations, the burden of proof, not having to testify against oneself and the right to be treated fairly, equally and without prejudice.1

Unlike Canada and the United States of America ('USA'), the Right in Australia is not constitutionally protected 2 and there are no foreseeable endeavours to achieve that; it is not an absolute guarantee. Despite its lack of constitutional status, the Right has been statutorily protected in two States, within the presumption of innocence principles.3 To date, these statutes have not been judicially interpreted within the criminal law context, therefore, the application and extent of protection remains unclear. In recent years, the Right was protected under the uniform evidence legislation, comprising the Commonwealth’s Uniform Evidence Act 1995 ('UEA') and the New South Wales Evidence Act 1995 ('NSW Act') in 1995 (mirroring the UEA). The majority of the remaining states and the Northern Territory ('NT') progressively followed with identical model legislation, except Victoria, where jurisdictional amendments were incorporated.4

Sections 17, 20, 89 and 128 of the NSW Act protect the defendant against prejudicial judicial comment and adverse inferences drawn from the defendant’s silence, when failing to answer questions or produce documents. However, in 2013, NSW acted against the COAG5 uniform evidence agreement, by implementing reforms to the NSW Act ('NSW Amendments'), primarily enabling a jury to draw an unfavourable inference from the defendant’s silence, in serious indictable offences. These reforms were not supported by the legal fraternity, the NSW Police Association, the New South Wales Law Reform Commission ('NSWLRC') or the Law Society. However, the justification for the reforms was, allegedly, to close a loophole, preventing hardened criminals from hiding behind the Right to avoid conviction. These reforms were implemented in an environment where the High Court of Australia ('HCA') found an adverse inference,drawn by a jury when the Right is exercised, to be an erosion of the Right, 'render[ing] it valueless'.6

This paper will argue the NSW Amendments have eroded the contemporary Right in all criminal proceedings, using similar United Kingdom ('UK') reforms as a contrast. Against international and Commonwealth of Australia's ('Commonwealth') perspectives, the paper will also demonstrate how the indeterminate nature of the Right, together with the absence of constitutional backing, enhances its vulnerability, against a threat of statutory abrogation and emerging international influences. To validate these assertions, the paper will explore the deleterious impacts of the NSW Amendments on the Right, particularly on the unfavourable inferences now drawn by a jury at trial, the presumption of innocence, the burden of proof and the right not to have to testify or confess guilt. Finally, the paper will consider the wisdom of implementing the NSW Amendments and the potential impact on the harmonisation of evidence laws in Australia.

However, before these explorations are undertaken, it is important to comprehend the scope of the Right, its historical origins and its evolution in the 20th Century.

Additional Notes LLB Honours Research Paper - Unit LWC304

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