Terms of reference

Pursuant to section 10 of the Law Reform Commission Act 1967 (NSW), the Attorney General, the Honourable Jeff Shaw QC MLC, referred the following matter to the Law Reform Commission by letter dated 1 August 1997:

To inquire into and report on the law relating to the right to silence in New South Wales, including but not limited to:

(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 in relation 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.

In undertaking this reference, the Commission was directed to consider the position in other Australian jurisdictions and other common law jurisdictions throughout the world.

Participants

Pursuant to s 12A of the Law Reform Commission Act 1967 (NSW) the Chairman of the Commission constituted a Division for the purpose of conducting the reference. The members of the Division are:

Mr Michael Adams QC*
The Hon Judge Robert Bellear
The Hon Justice John Dowd AO
Mr Brent Fisse
The Hon Judge John Goldring
The Hon Justice Peter Hidden AM
The Hon David Hunt QC
Professor David Weisbrot

(* denotes Commissioner-in-Charge)

Officers of the Commission

Executive Director

Mr Peter Hennessy

Ms Ailsa Goodwin

Ms Beverley Caska
Ms Aferdita Kryeziu

Ms Rebecca Young

Ms Shannon Field
Ms Wendy King
Ms Suzanna Mishhawi
Ms Kathryn Sharpe

The Commission invites submissions on the issues relevant to this review, including but not limited to the issues raised in this Discussion Paper. Suggestions for further research issues which should be considered are welcome.

All submissions and enquiries should be directed to:

Mr Peter Hennessy
Executive Director
NSW Law Reform Commission
GPO Box 5199
Sydney NSW 2001
[DX 1227 Sydney]

Phone: (02) 9228 8230
Fax: (02) 9228 8225

There is no special form required for submissions. If it is inconvenient or impractical to make a written submission you may telephone the Commission and either direct your comments to a Legal Officer over the telephone, or else arrange to make your submission in person.

The closing date for submissions is 31 August 1998.

Use of submissions and confidentiality

If you would like your submission to be treated as confidential, please indicate this in your submission. Submissions made to the Commission may be used in two ways:

• Since the Commission’s process of law reform is essentially public, copies of submissions made to the Commission will normally be made available on request to other persons or organisations. However, if you would like all or part of your submission to be treated as confidential, please indicate this in your submission. Any request for a copy of a submission marked “confidential” will be determined in accordance with the Freedom of Information Act 1989 (NSW).

In preparing the Report on this reference, the Commission will refer to submissions made in response to this Discussion Paper. However, requests for confidentiality will be respected by the Commission in relation to the publication of submissions.