NEW SOUTH WALES LAW REFORM COMMISSION
The Right to Silence
Questionnaire for Judges and Magistrates
Completing the questionnaire
We would like you to answer this questionnaire on the basis of the cases which you have presided over in the last 6 months (ie 1 June 1998 to 30 November 1998).
Confidentiality
All information you provide in the questionnaire will remain completely confidential. No individuals who participate in the study will be identified and only aggregate information will be reported upon.
Returning the questionnaire
Please return the completed survey in the next two weeks, either by mail, dx or fax. (mail) GPO Box 5199 Sydney 1044; (dx) DX 1227 Sydney; (fax) (02) 9228 8225.
If you have any questions, please contact either Peter Hennessy or Ailsa Goodwin at the NSW Law Reform Commission on (02) 9228 8230.
1. In the last 6 months:
(A) Approximately how many criminal cases did you preside over?
(B) Which jurisdiction did you preside in? Tick one box only.
1o Local courts
2o Children’s courts
3o District Court
4o Supreme Court
Go to next Q
2. In the criminal cases (pleas and hearings/trials) you presided over in the last 6 months, how often (if at all) was the accused legally represented at trial? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
Police questioning and the right to silence
3. In the criminal cases (pleas and hearings/trials) you presided over in the last 6 months, how often did the accused exercise the right to silence during police questioning, in the sense of refusing to provide substantial information about the defence case to police? Tick one box only.
1o Never [0%] Go to Q 7
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
Please answer questions 4 and 5 in relation to only those cases where the accused exercised the right to silence during police questioning, in the sense of refusing to provide substantial information about the defence case to police.
4. Did the accused generally have legal advice or representation during police questioning or not? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
5. In your view, how (if at all) did the accused’s exercise of the right to silence during police questioning generally affect the accused’s decision as to how to plead? Tick one box only.
1o Generally contributed to a ‘guilty’ plea
2o Generally contributed to a plea to a lesser charge
3o Generally contributed to a ‘not guilty’ plea or no plea
4o Sometimes contributed to a ‘guilty’ plea, sometimes contributed to a plea to a lesser charge, sometimes led to a ‘not guilty’ plea or no plea
5o Generally did not affect the plea
6o Unable to say/don’t know
Go to next Q
Please answer question 6 in relation to only those cases you presided over in the last 6 months where the accused was tried by a jury.
6. In your view, where the accused pleaded not guilty, how (if at all) did their exercise of the right to silence during police questioning generally contribute to the outcome of the hearing/trial? Tick one box only.
1o Generally contributed to the acquittal of the accused
2o Generally contributed to the conviction of the accused
3o Sometimes contributed to the acquittal of the accused, sometimes contributed to their acquittal
4o Generally did not affect the outcome of hearings/trials
5o Not applicable — all accused persons who appeared before me pleaded guilty
6o Not applicable — I did not preside over any jury trials
7o Unable to say/don’t know
Go to next Q
Police and Prosecution pre-trial disclosure
7. In the criminal cases (pleas and hearings/trials) you presided over in the last 6 months, how would you describe the level of police and prosecution pre-trial disclosure to the defence? Tick one box only.
1o Generally adequate
2o Generally inadequate
3o Sometimes adequate, sometimes inadequate
4o Unable to say/don’t know
Go to next Q
8. Where the level of police and prosecution pre-trial disclosure to the defence was inadequate, was the material which was not disclosed to the defence: Tick one box only.
1o Generally material which assisted the prosecution case
2o Generally material which assisted the defence case
3o Sometimes material which assisted the prosecution case, sometimes material which assisted the defence case
4o Generally material which assisted the prosecution case
4o Not applicable — police and prosecution disclosure was always adequate
5o Unable to say/don’t know
Go to next Q
In NSW, DPP guidelines require extensive disclosure by investigating police to Crown prosecutors, while police guidelines require briefs to be forwarded to police prosecutors.
9. In the criminal cases (pleas and hearings/trials) you presided over in the last 6 months, how often did the investigating police fulfil their pre-trial disclosure obligations? Tick one box only.
1o Never [0%] Go to Q 11
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
10. Where the investigating police fulfilled their pre-trial disclosure obligations, how (if at all) did this affect the efficiency of the hearing/trial process? (For example, disclosure affected the time at which the issues were identified, the time needed for preparation, the length of the hearing/trial, the number of adjournments sought or granted, the accuracy of estimated hearing/trial lengths for court listing purposes.) Tick one box only.
1o Generally improved the efficiency of the process
2o Generally reduced the efficiency of the process
3o Sometimes improved the efficiency of the process and sometimes reduced the efficiency of the process
4o Generally did not affect the efficiency of the process
5o Unable to say/don’t know
Please describe how pre-trial disclosure by the investigating police affected the efficiency of the hearing/trial process.
Go to next Q
Crown and police prosecutors are required by legislation to serve briefs of evidence on the defence, while Crown prosecutors are also required to disclose details of the prosecution case to the defence under the DPP guidelines.
11. In the criminal cases (pleas and hearings/trials) you presided over in the last 6 months, how often did the prosecution fulfil its pre-trial disclosure obligations to the defence? Tick one box only.
1o Never [0%] Go to Q 13
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
Please note this question continues over the page.
12. Where the prosecution did fulfil its pre-trial disclosure obligations, how (if at all) did this affect the efficiency of the hearing/trial process? (For example, disclosure affected the time at which the issues were identified, the time needed for preparation, the length of the hearing/trial, the number of adjournments sought or granted, the accuracy of estimated hearing/trial lengths for court listing purposes.) Tick one box only.
1o Generally improved the efficiency of the process
2o Generally reduced the efficiency of the process
3o Sometimes improved the efficiency of the process and sometimes reduced the efficiency of the l process
4o Generally did not affect the efficiency of the process
5o Unable to say/don’t know
Please describe how prosecution pre-trial disclosure affected the efficiency of the hearing/trial process.
Go to next Q
Defence pre-trial disclosure
In trials for indictable offences in NSW, the defence is required to give the prosecution notice that it intends to lead alibi evidence. In murder trials, the defence is required to give notice that it will lead evidence that the accused suffered from substantial impairment by abnormality of mind (formerly called diminished responsibility) at the time of the offence. However, there are no general defence disclosure requirements.
Please answer questions 13, 14, 15 and 16 if in the last 6 months you presided over any hearings/trials for indictable offences.
13. Did you preside over any criminal trials for indictable offences in the last 6 months where the defence led alibi evidence? Tick one box only.
1o No Go to Q 15
2o Yes Go to next Q
14. Did the defence comply with the notice requirements for this type of evidence? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
15. Did you preside over any murder trials in the last 6 months where the defence led evidence that the accused was suffering from substantial impairment by abnormality of mind at the time of the offence? Tick one box only.
1o No Go to Q 17
2o Yes Go to next Q
16. Did the defence comply with the notice requirements for this type of evidence? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
17. In the criminal cases you presided over in the last 6 months, how often did the defence provide pre-trial disclosure of substantial information about the defence case to the prosecution (other than through police questioning of the accused and the formal requirements for alibi and diminished responsibility evidence) on a voluntary basis? Tick one box only.
1o Never [0%] Go to Q 20
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
Please answer questions 18 and 19 in relation to only those cases where the defence voluntarily disclosed substantial information about the defence case to the prosecution, other than through police questioning of the accused and the formal requirements for alibi and diminished responsibility evidence.
18. Did the accused generally have legal advice or representation at this time or not?
Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
19. Where the defence volunteered substantial information about the defence case to the prosecution (other than through police questioning of the accused and the formal requirements for alibi and diminished responsibility evidence) how (if at all) did this affect the efficiency of the hearing/trial process? (For example, disclosure affected the time at which the issues were identified, the time needed for preparation, the length of the hearing/trial, the number of adjournments sought or granted, the accuracy of estimated hearing/trial lengths for court listing purposes.) Tick one box only.
1o Generally improved the efficiency of the process
2o Generally reduced the efficiency of the process
3o Sometimes improved the efficiency of the process and sometimes reduced the efficiency of the process
4o Generally did not affect the efficiency of the process
5o Unable to say/don’t know
Please describe how voluntary defence pre-trial disclosure, other than through the formal requirements for alibi and diminished responsibility evidence, affected the efficiency of the hearing/trial process.
Go to next Q
20. In the criminal cases you presided over in the last 6 months, how often did the prosecution and defence reach agreement pre-trial concerning admissions or informal proof of matters not in issue? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
The right to silence at trial
21. In the criminal hearings/trials you presided over in the last 6 months, how often (if at all) did the accused exercise the right to silence at trial? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
22. In the criminal hearings/trials you presided over in the last 6 months, how often (if at all) did the accused have the option of giving an unsworn statement? Tick one box only.
1o Never [0%] Go to Q 24
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
23. In those hearings/trials where the option of giving an unsworn statement was available to the accused, how often (if at all) did the accused exercise the right to silence at trial? Tick one box only.
1o Never [0%] Go to Q 24
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Not applicable — there were no cases where the option of giving unsworn evidence was available to the accused
9o Unable to say/don’t know
Go to next Q
24. In those hearings/trials where the option of giving an unsworn statement was not available to the accused, how often (if at all) did the accused exercise the right to silence at trial? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Not applicable — the option of giving unsworn evidence was available to the accused in all cases
9o Unable to say/don’t know
Go to next Q
Please answer questions 25 and 26 in relation to only those hearings/trials where the accused exercised the right to silence at trial.
25. Did the accused generally have legal representation at the hearing/trial or not? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
Please answer question 26 in relation to only those cases you presided over in the last 6 months where the accused was tried by a jury.
26. In your view, how (if at all) did the accused’s decision to exercise the right to silence at trial contribute to the outcome of the hearing/trial? Tick one box only.
1o Generally contributed to the acquittal of the accused
2o Generally contributed to the conviction of the accused
3o Sometimes contributed to the acquittal of the accused, sometimes contributed to the conviction of the accused
4o Generally did not affect the outcome of the trial
5o Not applicable — all accused persons who appeared before me pleaded guilty
6o Not applicable — I did not preside over any jury trials
7o Unable to say/don’t know
Go to next Q
27. In the criminal hearings/trials you presided over in the last 6 months, how often did the defence raise a defence with all of the following characteristics:
- The defence was raised for the first time at the hearing/trial;
- The defence involved evidence which could have been disclosed by the accused during police questioning;
- Competent prosecutors could not have anticipated that the defence would be raised on the information available to them; and
- The late disclosure of the defence hampered the prosecution (for example by making it impossible for the defence to be fully investigated) or benefited the defence (for example because the defence had extra time to prepare).
Tick one box only.
1o Never [0%] End of questionnaire
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
28. Did the accused generally have legal representation when such a defence was raised or not? Tick one box only.
1o Never [0%]
2o Almost never [approx 1-10%]
3o Sometimes [approx 11-40%]
4o About half the time [approx 41-59%]
5o Often [approx 60-89%]
6o Almost always [approx 90-99%]
7o Always [100%]
8o Unable to say/don’t know
Go to next Q
29. How (if at all) did such a defence contribute to the outcome of the hearing/trial? Tick one box only.
1o Generally contributed to the acquittal of the accused
2o Generally contributed to the conviction of the accused
3o Sometimes contributed to the acquittal of the accused, sometimes contributed to the conviction of the accused
4o Generally did not affect the outcome of the hearing/trial
5o Unable to say/don’t know
