Table of Contents
Terms of reference
Participants
Submissions
1. INTRODUCTION
THE COMMISSION'S REFERENCE
OVERVIEW
CONDUCT OF THE REFERENCE
OPTIONS FOR REFORM
THE STRUCTURE OF THE DISCUSSION PAPER
2. HISTORY OF THE RIGHT TO SILENCE
THE RIGHT TO SILENCE IN ENGLAND
The right to remain silent when questioned by police
The right to remain silent at trial
THE RIGHT TO SILENCE IN NEW SOUTH WALES
THE RIGHT TO SILENCE AS A CONSTITUTIONAL RIGHT
RECENT EXAMINATION OF THE RIGHT TO SILENCE
United Kingdom
Australia
3. THE RIGHT TO SILENCE WHEN QUESTIONED BY POLICE
THE LAW IN NEW SOUTH WALES
The right to silence when questioned by police
Statutory abrogation
Other police powers
Concealing serious offences
The obligation of police officers to provide information to citizens
OTHER JURISDICTIONS
Serious Fraud Office
REFORM OF THE RIGHT TO SILENCE WHEN QUESTIONED BY POLICE
Arguments for reform
Used by guilty suspects
Serious offences
Prior convictions
Complex offences, organised crime, drug offences
Legal advice
Ambush defences
Efficiency
Abolition subject to additional protections
The need to guide juries
Arguments for retaining the existing right to silence
Reasons for silence consistent with innocence
Compulsion
Police practices
Fundamental principles
Procedural fairness at trial
CONCLUSION
4. PRE-TRIAL DISCLOSURE
PRE-TRIAL DISCLOSURE IN NEW SOUTH WALES
Common law
Legislation
Barristers' and Solicitors' Rules
Prosecution Guidelines
Supreme Court Standard Directions
International law
OTHER JURISDICTIONS
Victoria
Northern Territory, South Australia, Tasmania, Australian Capital Territory
Western Australia
Queensland
United Kingdom
REFORM OF COMPULSORY PRE-TRIAL DISCLOSURE
Compulsory prosecution pre-trial disclosure
Arguments for disclosure
Arguments against disclosure
Compulsory defence pre-trial disclosure
Arguments for disclosure
Arguments against disclosure
OPTIONS FOR REFORM
Compulsory prosecution pre-trial disclosure
Material to be disclosed
Timing
Unrepresented defendants
Protective measures
Confidentiality
Consequences of non-compliance
Compulsory defence pre-trial disclosure
Option 1: Disclosure of expert evidence
Option 2: Disclosure of expert evidence and the intention to raise certain 'defences'
Option 3: Disclosure of the issues which will be litigated at trial and expert evidence
5. THE RIGHT TO SILENCE AT TRIAL
THE LAW IN NEW SOUTH WALES
OTHER JURISDICTIONS
Australia
South Australia, Western Australia, Tasmania
Northern Territory, Victoria
Queensland
United Kingdom, Singapore
REFORM OF THE RIGHT TO SILENCE AT TRIAL
Arguments for reform
Used by guilty defendants
The need to guide juries
Differences between police interrogation and trial
Arguments against reform
Reasons for silence consistent with innocence
Fundamental principles
Compulsion
Procedural fairness at trial
OPTIONS FOR REFORM
Prosecution comment on silence
Court to ensure defendant aware of right to, and consequences of, silence
APPENDIX A — SUBMISSIONS RECEIVED
SELECT BIBLIOGRAPHY
