THE COMMISSION’S REFERENCE

1.1 On 1 August 1997 the Attorney General, the Honourable JW Shaw QC MLC referred to the Commission a review of the law relating to the right to silence. In conducting the review, the Commission was directed to consider (but not limited to consideration of) the following issues:

(i) whether such a right should exist at all;

(ii) if so, the nature of any inference that should be able to be drawn from the exercise of that right;

(iii) the operation of s 20 of the Evidence Act 1995 (NSW);

(iv) whether there should be any mandatory pre-trial or pre-hearing disclosure of the nature of the defence and of the evidence in support of that defence;

(v) if so, whether it should be possible to draw any inferences from the failure to disclose such defence or evidence, or the manner of such mandatory disclosure, or from any change in the nature of the defence or in the evidence in support of it;

(vi) the operation of the current mandatory defence disclosure provisions, including those relating to alibi, and pursuant to the Evidence Act 1995 (NSW);

(vii) whether changes to the current position with regard to prosecution pre-trial disclosure are needed; and

(viii) any related matter.

OVERVIEW

1.3 The expression “the right to silence” describes a group of rights which arise at different points in the criminal justice system. This group of rights includes:

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6) A specific immunity (at least in certain circumstances ... ), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.¹

CONDUCT OF THE REFERENCE

1.5 The Commission received the reference in August 1997 and commenced substantial work on the reference in October 1997. During October 1997, the Commission also circulated the terms of reference to relevant individuals and organisations and invited initial submissions. The Commission has received many submissions, which have assisted in the production of this Discussion Paper. A list of submissions is at Appendix A.

OPTIONS FOR REFORM

1.6 This Discussion Paper considers the option of introducing extensive compulsory prosecution pre-trial disclosure in both the District Court and the Supreme Court. This would require the prosecution to disclose a summary of the conceptual nature of the prosecution case and to identify the facts which it considers suitable for informal proof and those which it invites the defence to admit. The prosecution would also be required to disclose all relevant witness statements (including expert witness reports) and exhibits.

1.7 The Discussion Paper also raises three options for compulsory defence pre-trial disclosure. Under the first option, where scientific evidence was proposed to be adduced, the defence would be required to provide the prosecution with copies of expert witness reports. The second option would require the defence to disclose whether the defendant intended to raise intoxication, provocation, duress or self defence, in addition to the existing notice requirements relating to alibi evidence and substantial impairment by abnormality of mind defences. Disclosure of expert evidence would also be required.

1.8 The third option is more extensive. Under this option, the defence would be required to disclose the issues raised by the prosecution which the defence intended to dispute at trial and any additional issues which the defence intended to raise. In addition, under this option the defence would be required to provide the prosecution with copies of expert witness reports.

1.9 The Discussion Paper also considers the option of extending the operation of the Evidence Act 1995 (NSW) s 20 to permit the prosecution to comment to the jury on the defendant’s refusal to testify at trial (subject to appropriate safeguards).

THE STRUCTURE OF THE DISCUSSION PAPER

1.10 This Discussion Paper adopts the following structure:

• Chapter 1 sets out the Commission’s terms of reference and the issues raised by the reference.
• Chapter 2 outlines the history of the law relating to the right to silence.
• Chapter 3 briefly examines the general immunities possessed by all persons and bodies from being compelled to answer questions, particularly incriminating questions. Chapter 3 then examines the right to remain silent when questioned by police.
• Chapter 4 examines the pre-trial disclosure obligations of the prosecution and the defence.
• Chapter 5 examines the defendant’s right to refuse to answer particular questions or refuse completely to testify at trial.

1. R v Director of Serious Fraud Office, Ex p Smith [1993] AC 1 at 30-31; [1992] 3 WLR 66 at 74 per Lord Mustill, with whom the other members of the House of Lords agreed.