THE COMMISSION’S REFERENCE

1.1 On 1 August 1997 the Attorney General, the Hon 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 was 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.

1.2 The Commission was directed to consider the position in other Australian jurisdictions and in other common law jurisdictions throughout the world.

THE RIGHT TO SILENCE IN NEW SOUTH WALES

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

1.5 In New South Wales, suspects are entitled to remain silent when questioned by police. At the hearing or trial, the judge or jury is prohibited from drawing adverse inferences, including inferences about the defendant’s guilt, or credibility as a witness, from evidence that he or she did not answer police questions.²

1.6 Pre-trial disclosure obligations differ for the prosecution and the defence in New South Wales. Police prosecutors, who conduct prosecutions in the Local Courts, are required to serve a brief of evidence on the defendant at least 14 days before Local Court hearings.³ In cases prosecuted in the District and Supreme courts by the Office of the Director of Public Prosecutions, the prosecution must disclose to the defence, as soon as practicable before the hearing or trial, all information relevant to any issue likely to arise at the hearing or trial.⁴

1.7 In trials in the District and Supreme Courts, the defence is required to notify the prosecution of proposed alibi evidence.⁵ In murder trials, the defence is also required to give notice of the intention to raise the defence of substantial impairment by abnormality of mind.⁶

1.8 In New South Wales, defendants can give evidence at their hearing or trial, but can not be compelled to do so.⁷ The court can draw unfavourable inferences where the defendant does not testify and, in jury trials, the judge, defence counsel and counsel for any co-accused can comment on the defendant’s silence. There are statutory and common law restrictions on the nature of comment which the judge can make. Prosecution comment is prohibited.⁸

CONDUCT OF THE REFERENCE

1.9 The Commission received the reference in August 1997 and commenced substantive work on the reference in October 1997. The Commission circulated the terms of reference to victims’ groups, defence lawyers, prosecutors, judges and magistrates, academic lawyers and civil liberties and human rights organisations, as well as a number of interested individuals, inviting submissions on all aspects of the review. The Commission received 60 submissions, which are listed at Appendix A. In June 1999, the Commission conducted a series of consultations with members of the legal profession, which are listed at Appendix B.

1.10 In June 1998, the Chairperson of the Law Reform Commission, Justice Michael Adams, visited England and consulted with senior members of the judiciary, legal profession and police force in that country about the practical operation of the right to silence in England, in order to gain a deeper understanding of the impact of reforms enacted in England and Wales in 1994.

1.11 In December 1998, the Commission conducted a survey of judges, magistrates, prosecutors and defence lawyers on the practical operation of pre-trial disclosure and the right to silence in New South Wales during the six month period from June to November 1998. The Commission also asked participants in the survey for their views on the effect of pre-trial disclosure and reliance on the right to silence. The results of this survey are referred to throughout this Report. The Commission also produced a Research Report which sets out the survey findings in detail.⁹

STRUCTURE OF THE REPORT

1.12 This Report is divided into four chapters. Chapter 1 sets out the Commission’s terms of reference and the issues raised by the reference.

1.13 Chapter 2 examines the right to remain silent when questioned by police. This Chapter sets out the law in New South Wales and considers changes to this aspect of the right to silence introduced in Northern Ireland in 1988 and adopted in England and Wales in 1994. The Commission recommends that the current law on the right to silence in this context should be retained. The Commission specifically recommends that legislation based on the law in Northern Ireland, England and Wales should not be introduced in New South Wales.

1.14 Chapter 3 deals with pre-trial disclosure in the context of criminal trials. This Chapter describes the pre-trial disclosure requirements which apply to the prosecution and, to a lesser extent, the defendant in New South Wales. It examines the different pre-trial disclosure requirements which operate in other jurisdictions, including the comprehensive reciprocal disclosure regimes which have operated in England, Wales and Northern Ireland since 1997 and Victoria since September 1999. The Commission makes a number of recommendations for increased levels of prosecution and defence pre-trial disclosure in criminal trials.

1.15 Chapter 4 examines the defendant’s right to refuse to answer particular questions or refuse completely to testify at trial. The Chapter describes the law in New South Wales, and considers the law in other jurisdictions, including changes introduced in Northern Ireland in 1988 and adopted six years later in England and Wales. The Commission recommends that the prohibition on prosecution comment on the defendant’s silence at his or her trial should be removed. The Commission also specifically recommends that legislation based on the law in Northern Ireland, England and Wales should not be introduced in New South Wales.

1. R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1 at 30-31 per Lord Mustill, with whom the other members of the House of Lords agreed.

2. Evidence Act 1995 (NSW) s 89. The law in New South Wales is considered in detail in Chapter 2.

3. Justices Act 1902 (NSW) s 66A-66H. The requirements for Local Court hearings are considered in detail in Chapter 3.

4. Law Society of NSW, Solicitors’ Rules, r A66, A66A, A67; NSW Bar Council, NSW Barristers’ Rules, r 66, 67; NSW, Office of the Director of Public Prosecutions, Prosecution Guidelines (1998) furnished pursuant to the Director of Public Prosecutions Act 1986 (NSW) s 13 Guideline 11. The requirements for District and Supreme Court trials are considered in more detail in Chapter 3.

5. Criminal Procedure Act 1986 (NSW) s 48 (formerly Crimes Act 1900 (NSW) s 405A). This requirement is discussed in Chapter 3.

6. Crimes Act 1900 (NSW) s 23A, Criminal Procedure Act 1986 (NSW) s 49 (formerly Crimes Act 1900 (NSW) s 405AB). This requirement is discussed in Chapter 3.

7. Evidence Act 1995 (NSW) s 12, 17, 20. The Law in New South Wales is considered in detail in Chapter 4.

8. Evidence Act 1995 (NSW) s 20(2); Weissensteiner v The Queen (1993) 178 CLR 217 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, Gaudron and McHugh JJ dissenting. This prohibition is described in detail in Chapter 4.