THE LAW IN NEW SOUTH WALES

1.2 In New South Wales, suspects can not be compelled to answer police questions. At the hearing or trial, the judge or jury is prohibited from drawing adverse inferences where the accused remained silent during police questioning.²

1.3 Police prosecutors are required to serve a brief of evidence on the accused at least 14 days before Local Court hearings. 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.³

1.4 In the District and Supreme Courts, the defence is required to give the prosecution notice of intended alibi evidence. In murder trials, notice of the defence of substantial impairment by abnormality of mind is also required.⁴

1.5 Accused persons can not be compelled to testify at their hearing or trial. In certain situations, adverse inferences can be drawn from the accused’s silence at the hearing or trial. There are restrictions on the type of adverse inferences which the court or jury can draw. In jury trials, there are also restrictions on judicial comment on this issue, and a prohibition on comment by the prosecution.⁵

EMPIRICAL RESEARCH

1.6 Debate in the United Kingdom about modifying the right to silence in the context of police questioning has been informed by a considerable body of empirical research on the extent to which suspects remain silent during police questioning. This includes a number of empirical studies completed for the Royal Commissions on Criminal Procedure and Criminal Justice.⁶

1.7 However, there is very little Australian research on these issues.⁷ There is no significant Australian research which examines the practical operation of the existing prosecution or defence pre-trial and pre-hearing disclosure obligations, or the extent to which accused persons remain silent at trial.

PURPOSE OF THIS RESEARCH

1.8 The purpose of the research was to obtain information on the practical operation of the right to silence and pre-trial and pre-hearing disclosure in New South Wales in the six months from 1 June 1998 to 30 November 1998.

1.9 The Commission sought information on how often suspects remained silent when questioned by police, how often silence coincided with legal advice, and, where suspects were advised by solicitors to remain silent, the most frequent reasons for this advice. The Commission also sought participants’ views on how the fact that a person remained silent when questioned by police affected the way suspects who were subsequently charged elected to plead, and the outcomes of trial and hearings.⁸

1.10 The Commission asked about the extent of compliance with existing pre-trial and pre-hearing disclosure requirements, and the reasons for non-compliance. The Commission also sought information on the incidence of voluntary, informal defence disclosure. The Commission asked about the incidence of “ambush” defences and how these defences affected the outcomes of hearings and trials. The Commission also sought the views of participants on the impact of disclosure on the efficiency of the criminal justice system.⁹

1.11 Finally, the Commission sought information on how often accused persons remain silent at their hearing or trial. Participants were asked how often silence at this stage coincided with legal advice. Defence lawyers who advised clients against testifying were asked their reasons for this advice. The Commission also sought participants’ views on how the fact that the accused did not give evidence affected hearing and trial outcomes.¹⁰

1.12 The survey was designed to obtain qualitative and quantitative information about the practical operation of the right to silence and pre-trial disclosure during the survey period and to broaden the Commission’s consultation process, by encouraging participants to express their views on these issues.

1.13 There is a large body of English empirical work on the right to silence when questioned by police. Many of these studies were conducted by direct research methods, including observation of police interviews and analysis of transcripts and electronic recordings of interviews. The Commission did not have sufficient resources to undertake direct research of this kind. Our research instead relies on secondary information provided by police prosecutors, legal practitioners, judges and magistrates. This information was necessarily based on the recollections and impressions of participants. The Commission accepts that this method of data collection is a limitation of its research.

1.14 The overall response rate to the survey was 30%. The Commission also accepts that the results of the survey may not reflect the views of the judges, magistrates, police prosecutors and lawyers who did not return the questionnaires. However, the responses received were generally consistent, both within categories of participant, and across the various categories. This suggests that the survey findings are reliable.

METHODOLOGY

Development of questionnaires

1.15 A draft questionnaire was produced in October 1998. This was sent for comment to the following people:

• Justice Wood, the Chief Judge of the Common Law Division of the Supreme Court.
• Justice Blanch, the Chief Judge of the District Court.
• David Landa, the then Chief Magistrate of the Local Courts.
• Terry Buddin SC, the then Senior Public Defender.
• Nicholas Cowdery QC, the Director of Public Prosecutions.
• Dr Don Weatherburn, the Director of the New South Wales Bureau of Crime Statistics and Research.
• Dr David Dixon, Associate Professor at the University of New South Wales, who acted as an Honorary Consultant for the reference.

1.17 Next, 18 judges, magistrates, Crown prosecutors, police prosecutors, barristers and solicitors participated in a trial of the draft questionnaires. The Commission received further valuable comments on the draft questionnaires during this process. These comments were also incorporated into the final version of each questionnaire.

Distribution of questionnaires

1.18 The questionnaires were distributed by mail and fax in December 1998. A covering letter outlined the purpose of the survey and explained that the Commission would treat the information provided by participants as confidential.

1.19 The judges’ and magistrates’ questionnaire was sent to judges of the Common Law Division of the Supreme Court, District Court judges and magistrates. Jacqueline Trad, Secretary of the Chief Magistrate’s Statute Law Revision and Procedures Committee, assisted the Commission with this process.

1.20 The questionnaire for prosecutors was sent to Stephen Flower, the Crown Support Officer at the New South Wales Office of the Director of Public Prosecutions, who distributed it to Crown prosecutors. The prosecutors’ questionnaire was also sent to a number of barristers at the private bar nominated by the New South Wales and Commonwealth Offices of the Director of Public Prosecutions. This questionnaire was also distributed to police prosecutors in each regional command of the New South Wales Police Service by Des Mooney (South), Gordon Ingram (North West), Geoff Bates (North) and Brad Ray (South West).

1.21 The defence questionnaire was sent to Doug Humphreys, Manager of the Criminal Law Branch of the Legal Aid Commission of New South Wales, who distributed it to solicitors employed in the Criminal Law Branch of the Legal Aid Commission. The defence questionnaire was also sent to all accredited criminal law specialists and relevant community legal centres. This questionnaire was also sent to numerous law firms and sole practitioners. Warwick Charge of the Criminal Law Branch of the Legal Aid Commission facilitated this, by providing the Commission with a list of all firms and individuals paid by the Legal Aid Commission for criminal law work in the six months from January 1998 to July 1998. This questionnaire was also distributed to public defenders by Colin Longhurst, then Clerk of Carl Shannon Chambers. The questionnaire for defence lawyers was also sent to a number of barristers nominated by Tim Game QC, Chair of the New South Wales Bar Association Criminal Law Committee.

Follow up process

1.22 Each questionnaire was given an identification number. This enabled the Commission to track which questionnaires were returned, whilst maintaining the confidentiality of participants in the survey. In February 1999, the Commission contacted those who were sent questionnaires but had not completed and returned them, reminding them to do so. This process increased the response rate for all three questionnaires.

RESPONSE RATES

1.23 The Commission received 330 completed questionnaires. The overall response rate was 30%. 33 magistrates (42%), 29 judges (40%), 190 defence lawyers (28%) and 78 prosecutors (25%) completed and returned questionnaires.

SUMMARY OF FINDINGS

Characteristics of participants

1.24 The Commission asked judges and magistrates who participated in the survey to estimate the number of pleas, hearings and trials they presided over during the survey period. Defence lawyers and prosecutors were asked to estimate the number of pleas, hearings and trials they conducted. The median number of pleas which judges presided over was 15, while the median number of hearings or trials presided over by judges who participated in the survey was 10. For magistrates, the median number of pleas was 800. The median number of hearings for magistrates was 150. The Commission notes that these medians are likely to include a large number of driving matters.

1.25 The median number of pleas conducted by prosecutors was 875, while the median number of hearings and trials conducted by prosecutors was 100. Once again, the Commission notes that these figures would include a large number of driving matters conducted by police prosecutors in the Local Courts. For defence lawyers, the medians were 28 pleas and 9 hearings or trials.

The right to silence when questioned by police

1.26 The main findings on the right to remain silent during police questioning are set out below.

• It was reported that suspects did not remain silent during police questioning in the majority of cases, although this happened sometimes.
• Participants reported that while some suspects who remained silent during police questioning had legal advice at this stage, most did not.
• Where suspects remained silent during police questioning, and had legal advice at this stage, defence lawyers reported that they had generally advised the client to remain silent.
• In cases where a suspect who remained silent during police questioning was charged with an offence, it was reported that their silence sometimes contributed to a not guilty plea or a decision not to enter a plea, although not in the majority of cases.
• It was reported that in some jury trials, the accused’s silence during police questioning contributed to an acquittal, but again, this did not happen in the majority of cases.

1.28 It was also commonly reported that this advice was given because the solicitor could not get adequate instructions from the client to give any other advice. Many defence lawyers reported that their advice to clients at this stage was usually given to clients they did not otherwise know, during brief telephone conversations, immediately before the police interview took place.

1.29 This advice also tended to be given to clients with problems understanding or responding to police questions, or even instructing the lawyer. This arose due to communication factors, for example where the client was affected by drugs or alcohol, or had difficulty understanding or speaking English. It also arose due to personal characteristics of the client, for example where the client had a mental illness or an intellectual disability.

Pre-trial and pre-hearing disclosure

Police and prosecution disclosure

1.30 The main findings on disclosure by police and the prosecution are set out below.

• It was reported that disclosure by investigating police to prosecutors was generally adequate. Defence lawyers reported lower levels of satisfaction with disclosure by investigating police than other participants in the survey.
• Where disclosure by investigating police to the prosecution was inadequate, it was reported that this was caused by resource, training and administrative factors rather than deliberate concealment of relevant information by investigating police.
• Most participants reported that disclosure by the prosecution to the defence was generally adequate, although there was room for some improvement.
• It was reported that inadequate prosecution disclosure occurred due to non-disclosure by investigating police to prosecutors and resources and administrative problems.
• It was widely reported that police and prosecution pre-trial and pre-hearing disclosure improved the efficiency of the criminal justice system.

1.31 The main findings on defence disclosure are set out below.

• The compulsory notice requirements for alibi and substantial impairment by mental abnormality defences applied in a small number of cases. Overall, participants reported a high level of compliance with these notice requirements. Many prosecutors indicated that the defence never or almost never provided alibi notices within the required time frame.
• Most participants reported that the defence did not generally voluntarily disclose substantial information about the defence case to the prosecution before the hearing or trial.
• It was reported that where voluntary defence disclosure occurred, it improved the efficiency of the criminal justice system.
• Most participants reported that “ambush” defences were not common.
• Where “ambush” defences were raised, participants reported that they did not contribute to an acquittal in a majority of cases, although this happened sometimes.

1.32 The main findings on the right to silence at the hearing or trial are set out below.

• Participants reported that it was rare for accused persons to remain silent at their hearing or trial.
• It was reported that most accused persons who exercised the right to silence at their hearing or trial were legally represented at this stage.
• Where accused persons remained silent at their hearing or trial, most defence lawyers reported that they advised the client to do so.
• It was reported that in some jury trials, the accused’s silence at the hearing or trial contributed to an acquittal, but this did not happen in the majority of cases.

STRUCTURE OF THIS RESEARCH REPORT

1.34 This Research Report is divided into four chapters. Chapter 1 sets out the purpose of the Commission’s research, the methodology used for the survey, and summarises the research findings. Chapter 2 deals with the right to silence when questioned by police. Chapter 3 discusses the Commission’s research findings on pre-trial and pre-hearing disclosure by investigating police, the prosecution and the defence, including the incidence and effect of so-called “ambush” defences. Chapter 4 deals with the right not to give evidence.

2. See para 2.1.

3. See para 3.3.

4. See para 3.5.

5. See para 4.1.

6. Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at para 1.34-1.35, 4.43-4.36, Appendix A; Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 53-54.

7. N Stevenson, “Criminal Cases in the NSW District Court: A Pilot Study” in J Basten, M Richardson, C Ronalds and G Zdenkowski (eds), The Criminal Injustice System (Australian Legal Workers Group (NSW) and Legal Service Bulletin, Sydney, 1982) at 108-109, 131-136 and 140-141. See also J Coldrey, “The Right to Silence Reassessed” (1990) 74 Victorian Bar News 25; J Coldrey, “The Right to Silence: Should it be Curtailed or Abolished?” (1991) 20 Anglo-American Law Journal 51.

8. See Chapter 2.

9. See Chapter 3.