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Where am I now? Lawlink > Law Reform Commission > Publications > Appendix C: Questionnaire for defence lawyers
Research Report 10 (2000) - The Right to Silence and Pre-trial Disclosure in New South Wales
Appendix C: Questionnaire for defence lawyers
new south wales law reform commission
The Right to Silence
Questionnaire for Defence Lawyers
Completing the questionnaire
We would like you to answer this questionnaire on the basis of the cases which you have conducted 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 conduct?
(B) Which jurisdiction/s did you prosecute cases in? Tick all relevant jurisdictions and indicate which (if any) jurisdiction you mainly prosecuted in.
Police questioning and the right to silence
2. During the last 6 months, did your practice include giving advice to clients being questioned by police? Tick one box only.
1o No Go to Q 6
2o Yes Go to next Q
Please answer questions 3, 4 and 5 in relation to only those clients to whom you gave advice during police questioning.
3. How often did your clients exercise the right to silence when questioned by police, 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 6
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
4. Of the clients who exercised the right to silence during police questioning, how often did you advise them to do so? Tick one box only.
1o Never [0%] Go to Q 6
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.
5. What were your reasons for advising clients to exercise the right to silence? Number the reasons in the spaces provided from 1 to 14, where 1 is the most frequent.
1________ Insufficient information provided by police about the alleged offence
2________ Insufficient evidence about the alleged offence
3________ Communication issues (for example, client’s language difficulties, low IQ, intellectual disability, client’s ability to communicate impaired by alcohol or drugs)
4________ Police advised that client would be charged whether or not he or she answered questions
5________ Client feared incriminating others
6________ Client’s defence implausible
7________ Answers would have amounted to admission of guilt
8________ My distrust of individual investigating police officer/s
9________ Client’s distrust of individual investigating police officer/s
10________ Client embarrassed by answers to questions
11________ Client had previously provided an explanation to police
12________ Client adamant that he or she wished to remain silent
13________ Insufficient instructions from client
14________ Other/s (please provide details)
Go to next Q
Please answer questions 6 and 7 in relation to only those clients to whom you did not give advice during police questioning.
6. In the criminal cases (pleas and hearings/trials) you conducted in the last 6 months, how often did your clients 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 10
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
7. Where your clients exercised the right to silence during police questioning, in the sense of refusing to provide substantial information about the defence case to police, did they generally have legal advice or representation at the 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
8. In your view, how (if at all) did your clients’ exercise of the right to silence during police questioning generally affect the 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
9. In your view, where your clients 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 my clients
2o Generally contributed to the conviction of my clients
3o Sometimes contributed to the acquittal of my clients, sometimes contributed to their conviction
4o Generally did not affect the outcome of hearings/trials
5o Not applicable — all my clients who exercised the right to silence during police questioning pleaded guilty
6o Unable to say/don’t know
Go to next Q
Police and Prosecution pre-trial disclosure
10. In the criminal cases (pleas and hearings/trials) you conducted 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
11. 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 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.
12. In the criminal cases (pleas and hearings/trials) you conducted in the last 6 months, how often did the investigating police fulfil their pre-trial disclosure obligations to the prosecution? Tick one box only.
1o Never [0%] Go to Q 14
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
13. 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.
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 DPP guidelines.
14. In the criminal cases (pleas and hearings/trials) you conducted 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 16
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.
15. 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.
Defence pre-trial disclosure
In trials for indictable offences in NSW, the defence is required to give notice that it intends to raise 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.
16. Did you conduct any hearings/trials for indictable offences in the last 6 months where the defence led alibi evidence? Tick one box only.
1o No Go to Q 19
2o Yes Go to next Q
17. 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%] Go to Q 19
8o Unable to say/don’t know
Go to next Q
18. Where the defence did not comply with the notice requirements for this type of evidence, please explain why these requirements were not met. (For example, late instructions from client.)
19. Did you conduct 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?
1o No Go to Q 22
2o Yes Go to next Q
20. 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%] Go to Q 22
8o Unable to say/don’t know
Go to next Q
21. Where the defence did not comply with the notice requirements for this type of evidence, please explain why these requirements were not met.
22. In the criminal cases you conducted 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 25
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 23 and 24 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.
23. Did your clients generally have legal advice or representation (whether yourself or somebody else) at this stage or not? Tick one box only.
1o Never [0%] Go to Q 25
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
24. 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.
25. In the criminal cases you conducted 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
26. In the criminal hearings/trials you conducted over the last 6 months, how often (if at all) did your clients exercise the right to silence at trial? Tick one box only.
1o Never [0%] Go to Q 29
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
27. Of the clients who exercised the right to silence at trial, how often did you advise them to do so? Tick one box only.
1o Never [0%] Go to Q 29
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. What were your reasons for advising clients not to testify? Number the reasons in the spaces provided from 1 to 9, where 1 is the most frequent.
1________ Avoid cross examination on prior convictions
2________ Avoid cross examination on outstanding charges
3________ Concerns about the clients’ performance as a witness (for example, communication issues, client’s personality)
4________ Concern about the harmful effect of cross examination on client
5________ Client feared for own safety or safety of family, friends or associates
6________ Client feared incriminating others
7________ Client had previously answered police questions about the alleged offence
8________ Weak prosecution case
9________ Other/s (please provide explanation over the page)
Go to next Q
29. In the criminal hearings/trials you conducted in the last 6 months, how often (if at all) did your client have the option of giving an unsworn statement? Tick one box only.
1o Never [0%] Go to Q 31
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
30. In those hearings/trials where the option of giving an unsworn statement was available to your clients, how often did your clients 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
31. In those hearings/trials where the option of giving an unsworn statement was not available to your clients, how often did your clients 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
32. In your view, how (if at all) did the decision to exercise the right to silence contribute to the outcome of the trial? Tick one box only.
1o Generally contributed to the acquittal of my clients
2o Generally contributed to the conviction of my clients
3o Sometimes contributed to the acquittal of my clients, sometimes contributed to their conviction
4o Generally did not affect the outcome of the trial
5o Unable to say/don’t know
Go to next Q
33. In the criminal hearings/trials you conducted in the last 6 months, how often did the defence raise a defence with all of the following characteristics:
34. In your view, 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 my clients
2o Generally contributed to the conviction of my clients
3o Sometimes contributed to the acquittal of my clients, sometimes contributed to their conviction
4o Generally did not affect the outcome of the hearing/trial
5o Unable to say/don’t know
End of questionnaire
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