2.1 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 accused’s guilt, or credibility as a witness, from evidence that he or she did not answer police questions.¹

JURISDICTIONS WHICH HAVE MODIFIED THE RIGHT TO SILENCE

2.2 The right to silence when questioned by police is recognised in all Australian jurisdictions and all other common law countries. The New South Wales prohibition on adverse inferences being drawn at the hearing or trial from the accused’s silence applies in all other Australian States and Territories.²

2.3 In contrast to the Australian position, in Singapore, Northern Ireland, England and Wales, the court or jury is specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so. This applies when the accused fails, when questioned under caution, charged, or officially informed that he or she might be prosecuted, to mention a fact later relied on in defence, which he or she could reasonably have been expected to mention when questioned.

2.4 Adverse inferences are also permitted in these jurisdictions where, after arrest, the accused person fails or refuses to account for objects, substances or marks, or his or her presence, in circumstances which the police reasonably believe are attributable to participation in an offence. In jury trials in these countries, the judge and the prosecution can also comment to the jury on the adverse inferences which can be drawn in these situations.³

EMPIRICAL RESEARCH

2.5 There is a large body of empirical research on the extent to which suspects in England remain silent when questioned by police, but very little Australian data. There are a number of definitional and methodological difficulties with the empirical research.⁴ For example, there is no commonly accepted definition, for the purpose of data collection, of what behaviour amounts to an incidence of silence during police questioning. Inconsistencies can arise in different researchers’ interpretation of suspects’ behaviour, including selective answering of questions, silence in response to questions which have previously been answered, evasive answers, temporary silences and silence in response to trivial or irrelevant questions.

2.6 The Commission’s study relies on reporting by judges, magistrates, police prosecutors and lawyers. The definition of silence adopted by the Commission for this study is set out at paragraph 2.12.

2.7 There are also a number of methodological differences between the published research studies which make comparison of different findings difficult. Some studies, including those undertaken for the Royal Commission on Criminal Justice, examined the incidence of silence by all suspects interviewed by police at particular stations.⁵ Other studies, including the only published Australian research, have measured only the proportion of persons subsequently prosecuted who remained silent during police questioning.⁶

2.8 The Commission’s research asked defence lawyers how often their clients, including clients they advised during police questioning and those the lawyer advised after this stage, remained silent when questioned by police. Judges, magistrates and prosecutors were asked how often the accused remained silent when questioned in pleas, hearings and trials they presided over or conducted during the period covered by the survey.

Australia

2.9 Australian research indicates that it is uncommon for suspects to remain silent when questioned by police. The only New South Wales study, conducted in 1980, concluded that 4% of suspects subsequently charged and tried in the Sydney District Court remained silent in police interviews.⁷ Research conducted in 1988 and 1989 found that accused persons did not answer police questions in 7% and 9% respectively of prosecutions by the Victorian Office of the Director of Public Prosecutions.⁸

United Kingdom, Singapore

2.10 The Northern Ireland and English research examining the number of suspects who remained silent when questioned by police has produced varying statistics. The lowest figure reached was 3%, while another study concluded that over 50% of suspects remained silent.⁹ A study examining the effects of the 1994 English modifications to the right to silence described in paragraph 2.3 concluded that there was no significant reduction in the number of suspects who did not answer police questions after the law was changed.¹⁰

2.11 Singapore studies have also concluded that suspects rarely remain silent and that the number of suspects who remain silent has not materially fallen since the Singapore law was modified in 1974.¹¹

THE COMMISSION’S FINDINGS

Incidence of silence when questioned by police

2.12 Throughout the questionnaires, the expression that the accused “remained silent when questioned by police” was defined as the accused person not providing substantial information about the defence case to police.

2.13 The Commission asked judges and magistrates how often, in pleas, trials and hearings they presided over, the accused person remained silent when questioned by police. Prosecutors were asked how often the accused remained silent during police questioning in pleas, hearings and trials they conducted. Responses to this question are set out in Table 2.1.

Table 2.1: How often accused persons remained silent when questioned by police (pleas, hearings and trials)

2.14 The most common response by judges (35%) and magistrates (64%) was that the accused sometimes remained silent when questioned by police. Most prosecutors (42%) responded that the accused remained silent during police questioning about half the time.

2.15 Defence lawyers were asked how often their clients remained silent when questioned by police. The questionnaire for defence lawyers distinguished between clients whom the lawyer advised before or during police questioning and clients whom the lawyer did not advise at this stage. Tables 2.2 and 2.3 set out their responses.

Table 2.2: How often clients remained silent when questioned by police, where the lawyer did not give advice at this stage

2.16 Most defence lawyers responded that where they did not advise the client before or during police questioning, the client almost never (31%) or sometimes (28%) remained silent.

Table 2.3: How often clients remained silent when questioned by police, where the lawyer gave advice at this stage

2.17 24% of defence lawyers responded that clients whom they advised before or during police questioning almost always remained silent. 22% of defence lawyers responded that clients whom they advised before or during police questioning remained silent sometimes, while 14% responded that clients almost never remained silent in this situation.

Summary

2.18 Judges, magistrates and prosecutors reported that in the majority of cases which proceeded to charge and plea, hearing or trial, the accused did not remain silent when questioned by police, although this sometimes occurred. Most defence lawyers reported that their clients almost never or sometimes remained silent during police questioning when the lawyer did not advise them at this stage. Where the lawyer advised the client at this stage, similar numbers of lawyers reported that the client sometimes remained silent, and almost always did so.

Legal advice

2.19 Critics of the right to silence when questioned by police argue that the right is exploited by offenders.¹² Offenders who obtain legal advice before or during police questioning are one group often identified as especially likely to exploit the right to silence.¹³

2.20 Most English research has concluded that suspects who obtain legal advice are more likely to remain silent than suspects who do not.¹⁴ English empirical work on the nature of legal advice to suspects before and during police questioning indicates that solicitors do not advise suspects to remain silent as a matter of course, that advice to remain silent is often a temporary strategy used to negotiate with police to disclose further information about the allegations, and that the quality of legal advice to suspects varies considerably.¹⁵

2.21 In England, suspects are entitled to free legal advice under a government-funded duty solicitor scheme. Approximately 34% of suspects obtain legal advice in the police station, either in person or by telephone, under this scheme.¹⁶ It appears that the number of suspects who request and obtain legal advice at the police station has increased substantially since the introduction of the English reforms to the right to silence.¹⁷ There is no substantive equivalent to this scheme in New South Wales, and it appears unlikely that there will be one in the foreseeable future.¹⁸

2.22 The Commission asked judges and magistrates how often, in pleas, hearings and trials they presided over, accused persons who remained silent when questioned by police had legal advice before or during police questioning. Prosecutors were asked how often this happened in pleas, hearings and trials they conducted. Their responses to this question are set out in Table 2.4.

Table 2.4: How often accused persons who remained silent when questioned by police had legal advice at this stage

2.23 The most common response overall was that accused persons who remained silent during police questioning sometimes had legal advice. 31% of judges and 30% of prosecutors gave this response. Most magistrates (33%) responded that accused persons who remained silent almost never had legal advice.

2.24 Defence lawyers who advised clients before or during police questioning were asked how often, where the client remained silent when questioned, the lawyer advised the client to do this.¹⁹ Most defence lawyers answered that where the client remained silent, they always or almost always advised this (36% and 33% respectively).

2.25 Defence lawyers were also asked how often clients whom they had taken on after police interviews, and who had remained silent when questioned by police, had other legal advice before or during police questioning. The responses to this question are set out in Table 2.5.

Table 2.5: How often suspect who remained silent had other legal advice during police questioning (defence lawyers who took on clients after police questioning)

2.26 Most defence lawyers responded that such clients almost never (26%) or sometimes (25%) had other legal advice in this situation.

Summary

2.27 Judges, magistrates and prosecutors reported that suspects who remained silent during police questioning in cases which proceeded to charge and plea, hearing or trial sometimes had legal advice at this stage, although not in the majority of cases. Most defence lawyers reported that where clients whom they had advised before or during police questioning remained silent at this stage, they had advised them to do so.

Effect of silence

2.28 One of the most common criticisms of the availability of the right to silence at the police station is that offenders misuse the right to impede police investigations, avoid being charged and escape conviction. It is often argued that offenders who remain silent during police questioning are more likely to plead not guilty and less likely to be convicted than offenders in general.²⁰

2.29 Research conducted in England suggests that the fact that an accused person remained silent during police questioning does not generally increase the likelihood that he or she will plead not guilty, or be acquitted at trial.²¹

Pleas

2.30 Judges, magistrates and defence lawyers were asked how the fact that the accused remained silent during police questioning affected the plea in pleas, hearings and trials they presided over or conducted.²² Their responses are set out in Table 2.6.

Table 2.6: How accused’s silence when questioned by police affected plea

2.31 Most defence lawyers (40%) answered that their clients’ silence sometimes contributed to a guilty plea, sometimes contributed to a plea to a lesser charge, and sometimes contributed to a not guilty plea or a decision not to plead. 46% of magistrates and 21% of judges responded that the accused person’s silence when questioned by police generally contributed to a not guilty plea or a decision not to plead.²³ 55% of judges and 42% of magistrates responded that they were unable to answer this question, reflecting the limited information available to judges and magistrates about the reasons for pleas.

Outcomes of hearings and trials

2.32 Juries in New South Wales are generally aware that suspects are not required by law to answer police questions.²⁴ It is commonly argued that under the current position, juries attach too much significance to the fact that an accused person did not answer police questions, because they do not receive any guidance on this issue.²⁵

2.33 The survey asked judges how the fact that the accused remained silent during police questioning affected the outcome of jury trials they presided over.²⁶ Crown prosecutors, barristers briefed by the Commonwealth and New South Wales Offices of the Director of Public Prosecutions and defence lawyers who had conducted jury trials were asked how the fact that the accused remained silent when questioned affected the outcome of these trials.²⁷ Their responses are set out in Table 2.7.

2.34 Juries in New South Wales are not required to give reasons for their decisions. Therefore, responses to these questions depended on judges’ and lawyers’ impressions of whether juries took the accused person’s silence into account, and if so, in what way.

Table 2.7: How accused’s silence when questioned by police affected outcome of hearing or trial

* This figure includes all Crown prosecutors and barristers briefed by the Commonwealth and NSW Office of the Director of Public Prosecutions, but excludes police prosecutors.

2.35 The most common response by judges (31%) was that the accused’s silence did not generally affect the outcome of the case. 28% of judges responded that the accused’s silence generally contributed to an acquittal. Most prosecutors (40%) responded that silence generally contributed to the acquittal of the accused person. 40% of defence lawyers responded that silence sometimes contributed to acquittals and sometimes contributed to convictions, while 39% of defence lawyers responded that the accused’s silence generally contributed to an acquittal. 28% of judges and 20% of prosecutors responded that they were unable to say how the accused’s silence affected the outcome of the hearing or trial, reflecting a reluctance to speculate on the significance juries attributed to this.

Summary

2.36 Judges, magistrates and defence lawyers reported that, in cases where a suspect who remained silent during police questioning was charged with an offence, their silence sometimes contributed to a not guilty plea or a decision not to enter a plea, although not in the majority of cases. Similarly, judges, prosecutors and defence lawyers reported that the accused’s silence during police questioning contributed to an acquittal in some jury trials, but again, this did not happen in the majority of cases.

Reasons for advice to remain silent

2.37 Many submissions received by the Commission, and numerous commentators, have challenged the assumption that an innocent suspect would always answer police questions. It is argued that there are many reasons, entirely consistent with innocence, why a suspect would remain silent when questioned by police.²⁸

2.38 The Commission asked defence lawyers who advised clients to remain silent during police questioning their reasons for giving this advice.²⁹ The most frequent response was that this advice was given due to the lack of police disclosure about the allegations in question. Many defence lawyers noted that often in this situation, advice to remain silent was a temporary strategy, used to negotiate with investigating police to obtain more information. The next most frequently cited reason for advising clients to remain silent when questioned by police was the lawyer’s assessment that the police did not appear to have sufficient evidence.

2.39 Another frequently cited reason for giving this advice was that the investigating police indicated that the suspect would be charged whether he or she answered questions or not.

2.40 The next most frequent reason was that the lawyer could not obtain sufficient instructions from the client to give any other advice. Many defence lawyers emphasised that their clients could not afford to pay for their legal adviser to attend the police station before or during police interviews. As a result, advice tended to be given briefly by telephone immediately prior to the interview taking place:

Most requests I get come from clients in custody, by telephone. There is therefore no ability to speak privately with the client and it is unwise to discuss the matter. Having insufficient detail of the client’s position, I think the appropriate advice is to exercise the right to silence.

The majority of defendants are disadvantaged through poor English/poor cultural understanding of our legal system/intellectual disability/psychiatric condition/drug dependency. Many believe that police are corrupt and will trade bail/charges for confessions/admissions.

2.43 The Commission’s view is that this is also likely to be an important reason why suspects who do not obtain legal advice before they are interviewed by police do not answer questions. Commentators have noted that, in this context, an antagonistic suspect who does not answer police questions can not necessarily be considered to be exercising a right to remain silent.³⁰

2.44 A very small number of defence lawyers indicated that they gave this advice due to their own distrust of police in general. Others stated they advised clients to remain silent because courts tended to view minor inconsistencies between the accused’s responses to police questions and evidence in court as evidence that the accused was lying.

2.45 Another reason, which was cited less frequently, was that the client was adamant that he or she would not participate in a police interview. Other defence lawyers reported that they advised clients not to answer further police questions where the client had already given investigating police an explanation, either informally, before the official interview, or in the form of a statement prepared with the lawyer.

2.46 Several defence lawyers indicated that advice to remain silent was given to clients who told them that answering questions would incriminate another person, which the client refused to do. Others advised clients not to answer police questions where their answers, although true, were implausible and were unlikely to be believed by police. A small number of lawyers responded that they had occasionally advised silence to clients who were extremely embarrassed to answer questions.

2.47 A small number of defence lawyers responded that they advised clients to remain silent because their answers would amount to confessions, or assist the prosecution case. A handful stated that they advised clients to remain silent as a matter of course because the right to remain silent was a fundamental right available to all persons questioned by police.

2. Petty v The Queen (1991) 173 CLR 95; Evidence Act 1995 (Cth) s 4 and 89.

3. Criminal Procedure Code (Singapore) s 123(1); Criminal Evidence (Northern Ireland) Order 1988 (Eng) art 3; Criminal Justice and Public Order Act 1994 (Eng) s 34.

4. D Dixon, Submission 1 at 1-2; D Dixon, Law in Policing: Legal Regulation and Police Practices (Clarendon Press, Oxford, 1997) at 256-257; D Brown, PACE Ten Years On: A Review of the Research (Home Office, London, 1997) at 168-171; R Leng, “The Right to Silence Debate” in D Morgan and G Stephenson (eds), The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994) 18 at 23-25. See also para 2.43.

5. See para 2.10.

6. See para 2.9.

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.

8. J Coldrey, “The Right to Silence Reassessed” (1990) 74 Victorian Bar News 25 at 26-27; J Coldrey, “The Right to Silence: Should it be Curtailed or Abolished?” (1991) 20 Anglo-American Law Journal 51 at 54-55. Coldrey refers to these figures as a percentage of the number of “completed prosecutions” in the higher courts in Victoria (Coldrey (1990) at 26 and (1991) at 54).

9. New South Wales Law Reform Commission, Criminal Procedure: Police Powers of Detention and Investigation After Arrest (Report 66, 1990) at para 5.13; Australian Law Reform Commission, Criminal Investigation (Interim Report 2, 1975) at para 149; Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at para 4.43-4.46; Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 53-54; G Black, “The Right Defence” [1989] Legal Action 9; Brown at 167-186; I Dennis, “The Criminal Justice and Public Order Act 1994 – The Evidence Provisions” [1995] Criminal Law Review 4 at 11-14; D Dixon, “Politics, Research and Symbolism in Criminal Justice: The Right of Silence and the Police and Criminal Evidence Act” (1991-1992) 20-21 Anglo-American Law Review 27 at 37-41; Dixon (1997) at 229-235 and 263-264; S Greer and R Morgan (eds), The Right to Silence Debate (Bristol and Bath Centre for Criminal Justice, 1990) at 38; Justice, Right of Silence Debate: The Northern Ireland Experience (1994) at 7-12; Leng at 18 at 19 and 22-28; S Odgers, “Police Interrogation and the Right to Silence” (1985) 59 Australian Law Journal 78 at 86-87; J Williams, “Inferences From Silence” (1997) 141 Solicitors 566; D Wolchover and A Heaton-Armstrong, “Labor’s Victory and the Right to Silence – 2” (1997) 147 New Law Journal 1434 at 1434-1435; M Zander, “Abolition of the Right to Silence, 1972-1994” in Morgan and Stephenson at 147-148. See also T Smith, Submission to Scrutiny of Acts and Regulations Committee, Victoria, Inquiry into the Right to Silence at 7. Note that the research findings of Justice have been criticised: see Dennis at 13.

10. T Bucke and D Brown, In Police Custody: Police Powers and Suspects’ Rights Under the Revised PACE Codes of Practice (Home Office, London, 1997) at 32-36. Bucke and Browne chart the change from 55% of suspects confessing prior to the changes to 58% subsequently.

11. M Yeo, “Diminishing the Right to Silence: The Singapore Experience” [1983] Criminal Law Review 88; A Tan, “Adverse Inferences and the Right to Silence: Re-Examining the Singapore Experience” [1997] Criminal Law Review 471 at 473; Greer and Morgan at 50.

12. P Cloran, Submission at 3; G Kellner, Submission at 1, 2; R Miller, Submission at 4; Police Association of New South Wales, Submission 1 at 2-5; E Whitton, Submission at 5-6. See also England, Criminal Law Revision Committee, Evidence (General) (Report 11, 1972) at para 21, 30-31, 156; Working Group on the Right to Silence, Report of the Working Group on the Right to Silence (London, 1989) at para 157; Sullivan v The Queen (1967) 51 Cr App R 102 at 105 per Salmon LJ; I Alger, “From Star Chamber to Petty and Maiden: Police Attitudes to the Right to Silence”, paper presented at session 24 of the 30th Australian Legal Conference (Melbourne, 18-21 September 1997) at 8; G Davies, “Justice Reform: A Personal Perspective” [1996] Bar News (Summer) 5 at 10-11; K Marks, “‘Thinking Up’ About the Right to Silence and Unsworn Statements” [1984] Law Institute Journal 360 at 361; E Whitton, Trial by Voodoo (Random House, Milson’s Point, 1994) chapter 4; C R Williams, “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 Law Quarterly Review 629 at 632; P Schramm, “The Right to Silence – Maintaining the Balance” [1998] Police Journal 8. N Papps, “You Have the Right to Remain Silent – But Maybe Not for Much Longer” Adelaide Advertiser (21 January 1998) at 1-2; E Whitton, “Privilege that Prevents Justice Being Done” The Australian (21 August 1997) at 11; J Woods, “Judge Calls for End of ‘Right to Silence’” Courier Mail (Brisbane) (24 April 1997) at 8.

13. R Miller, Submission at 4.

14. Brown at 178-181; Greer and Morgan at 13 and 38; Report of the Royal Commission on Criminal Justice at 53, Bucke and Brown at 32-36. However, some research suggests that the provision of legal advice during police questioning does not significantly affect the rate of silence. See D Dixon, Submission 2 at 1; M Aronson, Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure (AIJA, Melbourne, 1992) at 34-35; G Black at 9; Dixon (1991-1992) at 37; Dixon (1997) at 230.

15. D Dixon, Submission 2 at 1; Aronson at 35; J Baldwin, “Police Interrogation: What are the Rules of the Game?” in Morgan and Stephenson at 66-76; Brown at 179-181 and chapter 6; Coldrey (1990) at 27; Coldrey (1991) at 56; Dixon (1991-1992) at 42-46; Dixon (1997) at 236-258; Greer and Morgan at 26.

16. Bucke and Brown at 19 and 24. The rate of legal advice varies considerably between police stations (Greer and Morgan at 68). Aspects of legal advice that are widely variable between police stations also include the way in which advice is provided (that is, telephone as opposed to face-to-face contact in a separate room), and the likelihood of legal advisers attending all interviews (Bucke and Brown at 20 and 32).

17. Bucke and Brown at 20; compare the earlier study by Zander which concluded that about 30% of suspects receive legal advice (Zander at 147); M F Adams, visit to the United Kingdom (June 1998).

18. Although the Crimes Act 1900 (NSW) s 356N provides suspects with the right to access legal advice, there is no government funding for the provision of legal advice to suspects before or during police questioning.

19. Only defence lawyers were asked this question because judges, magistrates and prosecutors would be unlikely to have information about legal advice received by suspects.

20. See para 2.19 and footnote 10 above; P Cloran, Submission at 4-5; L Davies, Submission at 2; B Hocking and L Manville, Submission at 10-15; G Santow, “Corporate Crime: Complex Criminal Trials-Commentary” (1994) 5 Current Issues in Criminal Justice 280 at 284; H van Leeuwen, “AG Proposes New Rules for White-Collar Trials” Australian Financial Review (28 February 1998) at 8; T Smith, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 6; L Davies, Submission at 3-5; Whitton (1994) at 44; Police Association of New South Wales, Submission 1 at 4; B Hocking and L Manville, Submission at 11; “Laws Welcome in Crime Fight (Editorial) Northern Daily Leader (12 November 1998) at 3.

21. J Gallagher, Submission at 5; B Hocking and L Manville, Submission at 15. See also NSWLRC Report 66 at para 5.13; Report of the Royal Commission on Criminal Justice at 53-54; M Aronson and J Hunter, Litigation, Evidence and Procedure (6th ed, Butterworths, Sydney, 1998) at para 9.16 and 9.17; Brown at 181-184; Bucke and Browne at 34-36; Dennis at 12-14; Dixon (1991-1992) at 37 and 40-41; Dixon (1997) at 230 and 232-233; Greer and Morgan at 6, 14 and 67; Justice at 7-12; Leng at 26-29; Zander at 148.

22. Prosecutors were not asked this question as they would be unlikely to have information about the effect of the fact that the accused person remained silent when questioned on the plea.

23. Note however that a large number of judges responded that they were not able to say how the accused’s silence affected the plea in pleas, hearings and trials they presided over.

24. Evidence which discloses that the accused remained silent during police questioning is admissible at trial in certain circumstances. See the decisions of the NSW Court of Criminal Appeal in R v Astill (NSW Court of Criminal Appeal, No 60754/91, 17 July 1992, unreported); R v Reeves (1992) 29 NSWLR 109 at 115 per Hunt CJ at CL, with whom the other members of the Court agreed; R v Towers (NSW Court of Criminal Appeal, No 60359/91, 7 June 1993, unreported) at 10 per Handley JA, with whom the other members of the Court agreed; Yisrael v District Court (NSW Court of Appeal, No 4011/95, 18 July 1996, unreported) at 7 per Meagher JA; R v Mathews (NSW Court of Criminal Appeal, No 60726/95, 28 May 1996, unreported) at 3 per Badgery-Parker J, with whom the other members of the Court agreed; R v Keevers (NSW Court of Criminal Appeal, No 60732/93, 26 July 1994, unreported) at 7-8 per Hunt CJ at CL, with whom the other members of the Court agreed; Familiac v The Queen (1994) 75 A Crim R 229 at 234 per Badgery-Parker J, with whom the other members of the Court agreed. This line of decisions of the NSW Court of Criminal Appeal was followed in Queensland in R v Coyne [1996] 1 Qd R 512 at 518-520. The whole record of interview may also be admissible in certain circumstances where the accused selectively answered police questions. See S Odgers, Uniform Evidence Law (3rd ed, LBC Information Services, Sydney, 1998) at para 89.3. See also M Zander and P Henderson, Crown Court Study (Royal Commission on Criminal Justice, Research Study No 19, London, 1993) at para 1.2.5.

25. L Davies, Submission at 2 and 5; NSW Police Service, Submission at 1. See also D S Shillington, Submission at 2. See also J Black, “Inferences From Silence: Redressing the Balance? (1) [1997] Solicitors Journal 741 at 743; Coldrey (1990) at 28; Davies at 10; S Greer, “The Right to Silence: A Review of the Current Debate” (1990) 53 Modern Law Review 709 at 711; Greer and Morgan at 17; D Kurzon, “‘To Speak or Not to Speak’ The Comprehensibility of the Revised Police Caution (PACE)” (1996) 9 International Journal for the Semiotics of Law 3 at 3-4; Odgers (1985) at 84 and 94; F Vincent, Submission to the Scrutiny of Acts and Regulations Committee, Victoria, Inquiry into the Right to Silence at 6.

26. Magistrates were not asked this question as they do not preside over any jury trials.

27. Police prosecutors were not surveyed about this issue since they do not conduct jury trials.

28. R Jones, Submission at 2; P Cloran, Submission at 2; T Dalla, Oral Submission; Ethnic Affairs Commission, Submission at 1; J Fleming, Submission at 1; J Gallagher, Submission at 3; D Guilfoyle, Submission at 10; G Jones, Oral Submission; Kingsford Legal Centre, Submission at 2; Law Society of NSW, Submission 1 at 2-8; C Levingston, Submission at 2; Marsdens, Submission 1 at 1-3; NSW Council for Civil Liberties, Submission at 3; NSW Department of Community Services, Submission at 2; NSW Young Lawyers, Submission at 3; Legal Aid NSW, Submission at 1. See also ALRC, Report 2 (Interim) at para 148 and 149; Australian Law Reform Commission, Evidence (Interim Report 26, 1985) Volume 1 at para 756; Australian Law Reform Commission, Evidence (Report 38, 1987) at para 167; Report of the Royal Commission on Criminal Justice at 52 and 54; Victoria, Consultative Committee on Police Powers, Report on s 460 of the Crimes Act 1958 (1986) at 11-12; Victoria, Scrutiny of Acts and Regulations Committee, Inquiry Into the Right to Silence – Final Report (1999) at para 2.1; Alger at 9; Coldrey (1990) at 27-28; Dixon (1997) at 264; Dennis at 12-13; Greer (1990) at 727-728; S Greer, “The Right to Silence, Defence Disclosure and Confession Evidence” (1994) 21 Journal of British Law and Society 102 at 104; J Jackson, “Interpreting the Silence Provisions: The Northern Ireland Cases” [1995] Criminal Law Review 587 at 595; Odgers (1985) at 84-85; A Palmer, “‘Guilt and the Consciousness of Guilt’ The Use of Lies, Flight and Other ‘Guilty Behaviour’ in the Investigation and Prosecution of Crime” (1997) 21 University of Melbourne Law Review 95; R Pattendon, “Inferences from Silence” [1995] Criminal Law Review 602 at 608-609; C R Williams at 648-650; J Williams at 566-567; J Wood and A Crawford, The Right to Silence — The Case for Retention (Civil Liberties Trust, London, 1989) at 25; Justice at 4, 15-16, 29-30; Greer and Morgan at 12 and 15-16; Aronson at 33; M Ierace, “Right to Silence — A Response to Justice Davies’ Paper” [1999] Bar News (Spring) 33 at 34-36; T Smith, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 4-5; F Vincent, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at 3 and 5-6; Criminal Bar Association of Victoria, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence at para 5.7; Bar Council of Victoria, Submission to the Victorian Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence para 15, 19, 20-22, 41-44; J Black at 741; M Chaaya, “The Right to Silence Reignited: Vulnerable Suspects, Police Questioning and Law and Order in New South Wales” (1998) 22 Criminal Law Journal 82 at 88, 91; G Walsh, “The Right to Silence” (1999) 37(3) Law Society Journal 40 at 42.

29. Other participants in the survey were not asked this question as they would be unlikely to have information about reasons for legal advice given to suspects.