never: prosecutors 0.0%; judges 0.0%; magistrates 0.0%

almost never: prosecutors 3.8%; judges 6.9%; magistrates 7.1%

sometimes: prosecutors 23.1%; judges 34.5%; magistrates 35.0%

about half the time: prosecutors 42.3%; judges 20.7%; magistrates 32.1%

often: prosecutors 21.8%; judges 13.8%; magistrates 15.0%

almost always: prosecutors 6.4%; judges 13.8%; magistrates 6.4%

always: prosecutors 1.3%; judges 3.4%; magistrates 1.4%

unable to say: prosecutors 1.3%; judges 6.9%; magistrates 2.9%

[all prosecutors (78), judges (29) and magistrates (33) answered this question]

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

never: defence 6.8%

almost never: defence 30.5%

sometimes: defence 28.4%

about half the time: defence 18.4%

often: defence 6.8%

almost always: defence 5.3%

always: defence 1.6%

unable to say: defence 2.1%

[all defence respondents (190) answered this question]

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

never: defence 3.2%

almost never: defence 13.5%

sometimes: defence 21.8%

about half the time: defence 14.1%

often: defence 14.1%

almost always: defence 23.7%

always: defence 8.3%

unable to say: defence 1.3%

skipped: defence

[156 of 190 defence respondents answered this question]

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

never: prosecutors 2.6%; judges 10.3%; magistrates 3.0%

almost never: prosecutors 21.8%; judges 6.9%; magistrates 33.3%

sometimes: prosecutors 29.5%; judges 31.0%; magistrates 30.3%

about half the time: prosecutors 20.5%; judges 20.7%; magistrates 3.0%

often: prosecutors 11.5%; judges 10.3%; magistrates 15.2%

almost always: prosecutors 10.3%; judges 6.9%; magistrates 9.1%

always: prosecutors 3.8%; judges 3.4%; magistrates 0.0%

unable to say: prosecutors 0.0%; judges 10.3%; magistrates 6.1%

[all posecutors (78), judges (29) and magistrates (33) answered this question]

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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)

never; defence 14.0%

almost never; defence 26.4%

sometimes; defence 25.3%

about half the time; defence 6.7%

often; defence 11.2%

almost always; defence 10.7%

always; defence 3.4%

unable to say; defence 2.2%

[178 of 190 defence respondents answered this question]

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

generally guilty plea (a) : defence 5.1%; judges 0.0%; magistrates 0.0%

generally plea lesser charge (b): defence 3.4%; judges 0.0%; magistrates 0.0%

generally not guilty, no plea (c): defence 23.6%; judges 20.7%; magistrates 45.5%

sometimes (a), (b), (c): defence 40.4%; judges 3.4%; magistrates 6.1%

generally did not affect plea: defence 20.2%; judges 17.2%; magistrates 6.1%

unable to say: defence 7.3%; judges 58.6%; magistrates 42.4%

[178 of 190 defence respondents, all judges (29) and all magistrates (33) answered this question]

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

generally acquittal: defence 38.8%; prosecutors* 40.0%; judges 27.6%

generally conviction: defence 2.2%; prosecutors* 10.0%; judges 0.0%

sometimes either: defence 40.4%; prosecutors* 10.0%; judges 13.8%

generally not affect outcome: defence 7.9%; prosecutors* 20.0%; judges 31.0%

not applicable: defence 2.2%; prosecutors* 0.0%; judges 0.0%

unable to say: defence 8.4%; prosecutors* 20.0%; judges 27.6%

[178 of 190 defence respondents, all judges (29) and all prosecutors* (20) answered this question]

* This figure includes all Crown prosecutors and barristers briefed by the Office of the Director of Public Prosecutions.

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Table 3.1: General level of police and prosecution pre-trial and pre-hearing disclosure

generally adequate: defence 51.6%; judges 65.5%; magistrates 81.8%

generally inadequate: defence 15.3%; judges 3.4%; magistrates 3.0%

sometimes either: defence 32.6%; judges 17.2%; magistrates 15.2%

unable to say: defence 0.5%; judges 13.8%; magistrates 0.0%

[all defence respondents (190), judges (29) and magistrates (33) answered this question]

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Table 3.2: Type of material not disclosed

generally assisted prosecution: defence 15.3%; judges 10.3%; magistrates 12.1%

generally assisted defence: defence 26.8%; judges 0.0%; magistrates 6.1%

sometimes either: defence 28.9%; judges 20.7%; magistrates 21.2%

not applicable: defence 20.5%; judges 44.8%; magistrates 27.3%

unable to say: defence 8.4%; judges 24.1%; magistrates 33.3%

[all defence respondents (190), judges (29) and magistrates (33) answered this question]

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Table 3.3: How often investigating police complied with their disclosure duties

never: defence 0.5%; prosecutor 0.0%; judges 0.0%; magistrates 0.0%

almost never: defence 2.6%; prosecutor 0.0%; judges 0.0%; magistrates 3.0%

sometimes: defence 12.1%; prosecutor 2.6%; judges 0.0%; magistrates 3.0%

about half the time: defence 16.3%; prosecutor 2.6%; judges 0.0%; magistrates 3.0%

often: defence 23.7%; prosecutor 24.4%; judges 10.3%; magistrates 42.4%

almost always: defence 25.3%; prosecutor 47.4%; judges 27.6%; magistrates 42.4%

always: defence 3.2%; prosecutor 16.7%; judges 10.3%; magistrates 3.0%

unable to say: defence 16.3%; prosecutor 6.4%; judges 51.7%; magistrates 3.0%

[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]

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Table 3.4: Effect of police disclosure on efficiency

generally improved efficiency: defence 81.1%; prosecutors 50.0%; judges 34.5%; magistrates 0.0%

generally reduced efficiency: defence 1.1%; prosecutors 3.8%; judges 0.0%; magistrates 0.0%

sometimes either: defence 1.1%; prosecutors 15.4%; judges 0.0%; magistrates 0.0%

generally not affect efficiency: defence 3.7%; prosecutors 17.9%; judges 10.3%; magistrates 0.0%

unable to say: defence 13.2%; prosecutors 0.0%; judges 55.2%; magistrates 0.0%

not applicable*: defence 0.0%; prosecutors 12.8%; judges 0.0%; magistrates 0.0%

[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]

*This category only relates to the prosecutors

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Table 3.5: Compliance with prosecution disclosure duties

never: defence 1.6%; prosecutors 0.0%; judges 0.0%; magistrates 0.0%

almost never: defence 3.2%; prosecutors 0.0%; judges 0.0%; magistrates 0.0%

sometimes: defence 5.3%; prosecutors 1.3%; judges 0.0%; magistrates 3.0%

about half the time: defence 12.6%; prosecutors 0.0%; judges 3.4%; magistrates 0.0%

often: defence 23.2%; prosecutors 16.7%; judges 3.4%; magistrates 24.2%

almost always: defence 40.0%; prosecutors 53.8%; judges 48.3%; magistrates 69.7%

always: defence 10.0%; prosecutors 24.4%; judges 27.6%; magistrates 0.0%

unable to say: defence 4.2%; prosecutors 3.8%; judges 17.2%; magistrates 3.0%

[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]

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Table 3.6: Effect of prosecution disclosure on efficiency

generally improved efficiency: defence 84.2%; prosecutors 56.4%; judges 55.2%; magistrates 75.8%

generally reduced efficiency: defence 1.1%; prosecutors 0.0%; judges 3.4%; magistrates 0.0%

sometimes either: defence 3.2%; prosecutors 25.6%; judges 3.4%; magistrates 6.1%

generally not affect efficiency: defence 2.6%; prosecutors 14.1%; judges 3.4%; magistrates 3.0%

unable to say: defence 8.9%; prosecutors 0.0%; judges 34.5%; magistrates 15.2%

not applicable*: defence 0.0%; prosecutors 3.8%; judges 0.0%; magistrates 0.0%

[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]

*This categories only related to the prosecution

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Table 3.7: Level of voluntary defence disclosure

never: defence 25.8%; prosecutors 41.0%; judges 27.6%; magistrates 18.2%

almost never: defence 24.7%; prosecutors 34.6%; judges 10.3%; magistrates 27.3%

sometimes: defence 24.7%; prosecutors 15.4%; judges 10.3%; magistrates 15.2%

about half the time: defence 10.0%; prosecutors 0.0%; judges 3.4%; magistrates 6.1%

often: defence 6.3%; prosecutors 2.6%; judges 10.3%; magistrates 6.1%

almost always: defence 3.7%; prosecutors 0.0%; judges 6.9%; magistrates 0.0%

always: defence 0.5%; prosecutors 0.0%; judges 0.0%; magistrates 0.0%

unable to say: defence 4.2%; prosecutors 6.4%; judges 31.0%; magistrates 27.3%

[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]

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Table 3.8: How often the accused had legal advice when voluntary defence disclosure occurred

never: defence 2.8%; prosecutors 2.2%; judges 0.0%; magistrates 0.0%

almost never: defence 5.7%; prosecutors 6.5%; judges 0.0%; magistrates 0.0%

sometimes: defence 7.1%; prosecutors 10.9%; judges 0.0%; magistrates 0.0%

about half the time: defence 4.3%; prosecutors 4.3%; judges 0.0%; magistrates 3.7%

often: defence 8.5%; prosecutors 8.7%; judges 5.0%; magistrates 11.1%

almost always: defence 24.8%; prosecutors 19.6%; judges 10.0%; magistrates 14.8%

always: defence 36.9%; prosecutors 37.0%; judges 45.0%; magistrates 33.3%

unable to say: defence 9.9%; prosecutors 10.9%; judges 40.0%; magistrates 37.0%

[141 of 190 defence respondents, 46 of 78 prosecutors, 20 of 29 judges and 27 of 33 magistrates answered this question]

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Table 3.9: Effect of voluntary defence disclosure on efficiency of hearings and trials

generally improved efficiency: defence 56.2%; prosecutors 78.3%; judges 50.0%; magistrates 66.7%

generally reduced efficiency: defence 2.2%; prosecutors 4.3%; judges 0.0%; magistrates 0.0%

sometimes either: defence 13.9%; prosecutors 4.3%; judges 0.0%; magistrates 0.0%

generally not affect efficiency: defence 13.9%; prosecutors 2.2%; judges 5.0%; magistrates 0.0%

unable to say: defence 13.9%; prosecutors 10.9%; judges 45.0%; magistrates 33.3%

[137 of 190 defence respondents, 46 of 78 prosecutors, 20 of 29 judges and 27 of 33 magistrates answered this question]

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Table 3.10: “Ambush” defences

never: defence 52.6%; prosecutors 9.0%; judges 44.8%; magistrates 18.2%

almost never: defence 16.3%; prosecutors 10.3%; judges 3.4%; magistrates 21.2%

sometimes: defence 12.1%; prosecutors 30.8%; judges 24.1%; magistrates 30.3%

about half the time: defence 2.6%; prosecutors 11.5%; judges 6.9%; magistrates 9.1%

often: defence 6.3%; prosecutors 16.7%; judges 6.9%; magistrates 9.1%

almost always: defence 1.6%; prosecutors 12.8%; judges 0.0%; magistrates 3.0%

always: defence 0.5%; prosecutors 1.3%; judges 0.0%; magistrates 0.0%

unable to say: defence 7.9%; prosecutors 7.7%; judges 13.8%; magistrates 9.1%

[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]

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Table 3.11: How often accused was legally represented where he or she raised “ambush” defence

never: prosecutors 0.0%; judges 0.0%; magistrates 0.0%

almost never: prosecutors 1.4%; judges 0.0%; magistrates 0.0%

sometimes: prosecutors 4.2%; judges 12.5%; magistrates 11.1%

about half the time: prosecutors 7.0%; judges 0.0%; magistrates 3.7%

often: prosecutors 12.7%; judges 0.0%; magistrates 18.5%

almost always: prosecutors 42.3%; judges 6.3%; magistrates 33.3%

always: prosecutors 25.4%; judges 56.3%; magistrates 18.5%

unable to say: prosecutors 7.0%; judges 25.0%; magistrates 14.8%

[71 of 78 prosecutors, 16 of 29 judges, and 27 of 33 magistrates answered this question]

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Table 3.12: Effect of “ambush” defences on hearing and trial outcomes

generally acquittal: defence 33.3%; prosecutors 46.5%; judges 31.3%; magistrates 18.5%

generally conviction: defence 2.2%; prosecutors 2.8%; judges 0.0%; magistrates 0.0%

sometimes either: defence 27.8%; prosecutors 38.0%; judges 18.8%; magistrates 33.3%

generally not affect outcome: defence 10.0%; prosecutors 1.4%; judges 6.3%; magistrates 18.5%

unable to say: defence 26.7%; prosecutors 11.3%; judges 43.8%; magistrates 29.6%

[90 of 190 defence respondents, 71 of 78 prosecutors, 16 of 29 judges and 27 of 33 magistrates answered this question]

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Table 4.1: How often accused persons remained silent at hearing or trial

never: defence 32.1%; prosecutors 9.0%; judges 27.6%; magistrates 12.1%

almost never: defence 26.3%; prosecutors 41.0%; judges 27.6%; magistrates 66.7%

sometimes: defence 25.3%; prosecutors 30.8%; judges 31.0%; magistrates 15.2%

about half the time: defence 10.0%; prosecutors 7.7%; judges 6.9%; magistrates 3.0%

often: defence 3.2%; prosecutors 2.6%; judges 0.0%; magistrates 0.0%

almost always: defence 0.5%; prosecutors 0.0%; judges 6.9%; magistrates 0.0%

always: defence 1.6%; prosecutors 0.0%; judges 0.0%; magistrates 0.0%

unable to say: defence 1.1%; prosecutors 9.0%; judges 0.0%; magistrates 3.0%

[all defence respondents (190), prosecutors (78), judges (29) and magistrates (33) answered this question]

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Table 4.2: How often accused were persons legally represented at pleas, hearings and trials

never: prosecutors 0.0%; judges 0.0%; magistrates 0.0%

almost never: prosecutors 0.0%; judges 0.0%; magistrates 0.0%

sometimes: prosecutors 1.6%; judges 0.0%; magistrates 3.4%

about half the time: prosecutors 4.7%; judges 1.3%; magistrates 17.2%

often: prosecutors 14.2%; judges 3.8%; magistrates 55.2%

almost always: prosecutors 12.1%; judges 16.7%; magistrates 34.5%

always: prosecutors 7.9%; judges 15.4%; magistrates 3.4%

unable to say: prosecutors 0.5%; judges 0.0%; magistrates 0.0%

[all prosecutors (78), judges (29) and magistrates (33) answered this question]

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Table 4.3: How often accused persons who remained silent at the hearing or trial were legally represented at this stage

never: prosecutors 0.0%; judges 0.0%; magistrates 0.0%

almost never: prosecutors 1.4%; judges 0.0%; magistrates 9.7%

sometimes: prosecutors 2.8%; judges 0.0%; magistrates 3.2%

about half the time: prosecutors 2.8%; judges 9.1%; magistrates 9.7%

often: prosecutors 12.5%; judges 0.0%; magistrates 3.2%

almost always: prosecutors 25.0%; judges 9.1%; magistrates 29.0%

always: prosecutors 34.7%; judges 81.8%; magistrates 16.1%

unable to say: prosecutors 20.8%; judges 0.0%; magistrates 29.0%

[72 of 78 prosecutors, 22 of 29 judges and 31 of 33 magistrates answered this question]

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Table 4.4: How often accused persons who remained silent at trial were advised to do so

never: defence 2.3%

almost never: defence 10.9%

sometimes: defence 16.3%

about half the time: defence 5.4%

often: defence 6.2%

almost always: defence 19.4%

always: defence 36.4%

unable to say: defence 3.1%

[129 of 190 defence respondents answered this question]

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Table 4.5: Effect of accused’s silence on hearing and trial outcomes

generally acquittal: defence 20.9%; prosecutors* 38.5%; judges 9.5%

generally conviction: defence 2.9%; prosecutors* 15.4%; judges 19.0%

sometimes either: defence 30.2%; prosecutors* 23.1%; judges 9.5%

generally not affect outcome: defence 8.1%; prosecutors* 7.7%; judges 19.0%

unable to say: defence 37.8%; prosecutors* 15.4%; judges 42.9%

[172 of 190 defence, 13 of 20* prosecutors and 21 of 29 judges answered this question]

* This figure includes all Crown prosecutors and barristers briefed by the Office of the Director of Public Prosecutions.

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