Right to Silence:
A review of the amendments to S 89A of the Evidence Act 1995 (NSW)

Introduction

The right to silence came under renewed scrutiny when the NSW Government introduced an amendment to s 89A of the Evidence Act 1995 (NSW) in May 2013. This article reflects on those amendments by discussing the original draft Bill and the intention of the legislature. It also highlights some unforeseen consequences of the new amended Act.

Snapshot
• The inclusion of s 89A to the Evidence Act 1995 (NSW) have created unforeseen consequences for a defendant’s right to silence

• An adverse inference may be drawn if a defendant in police custody chooses to maintain their right to silence whilst “in the presence of an Australian legal practitioner” with offences punishable by 5 years or more

The original draft Bill

In the original draft Bill, the proposed amendment to s 89A of the Evidence Act 1995 was as follows:

(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, in answer to any question or in response to any representation in the course of the official questioning of the defendant in relation to the offence, the defendant failed or
refused to mention a fact:

(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and

(b) that is subsequently relied on by the defence in the proceeding.

(2) Such an inference may be drawn only if, before the relevant question or representation was put or made to the defendant:

(a) a supplementary caution was given to the defendant by an investigating official who had reasonable cause to suspect that the defendant had committed the serious indictable offence, and

(b) the defendant was allowed the opportunity to consult an Australian legal practitioner about the effect of failing or refusing to mention such a fact.

This had the effect of allowing an adverse inference to be drawn if certain circumstances were fulfilled as stated in the original draft Bill. Broadly speaking, an unfavourable inference could be drawn from the assertion of the right to silence in certain circumstances. This created great debate in the profession about the practical difficulties in implementing such a suggested amendment, while at the same time protecting a defendant’s right to silence. Examples from England were cited, including having a solicitor
permanently employed at every police station to advise clients of their rights. It was argued, however, that the NSW Government and Legal Aid NSW did not have the resources to meet that challenge.

The amended Bill

The result was a further suggested amendment to the original draft Bill, which was eventually passed. The new amendment to s 89A (2) is as follows:

(2) Subsection (1) does not apply unless:

(a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and

(b) the special caution was given before the failure or refusal to mention the fact, and

(c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and

(d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.

The effect: adverse inferences

In essence, the special caution must now be given “in the presence of an Australian legal practitioner” who is acting for the defendant at that time. There is no definition of the word “presence” in the Act, but it is likely to mean presence “in person”. When one looks at it closely, it is clear that an unfavourable inference can be drawn in certain circumstances, such as when an accused person is in the presence of a legal practitioner. The suggested unforeseen consequences of this new amendment are as follows:

1. An accused is now disadvantaged for having legal representation present during official police questioning.

2. If an accused does not have legal representation during questioning they will maintain their right to silence and no adverse inference can be drawn, but they are not able to obtain legal advice on other issues arising during their period of custody, including advice on whether to consent to an identification parade or forensic procedure, and what is likely to happen if bail is refused.

Conclusion

I submit that the final version is in fact contrary to the original intention of the legislature. Is it better? On the one hand, there is the removal of the right to silence where an accused person may still have an
Australian legal representative present to advise on all legal matters. On the other hand, the right to silence remains intact but an accused person loses the right to have a lawyer present to advise on all
matters, because that may affect the right to silence and any inferences that may be drawn. The English equivalent to this legislation has forced legal practitioners into the police station, yet it seems that the Australian legislation has forced legal practitioners out of police stations.

This leaves some accused persons in a vulnerable position, where the imbalance of power favours police. I wonder whether we would tolerate this situation if it happened to an Australian citizen in a Third World country, because so far it seems it is tolerated on our door steps.