Erosion of right to silence highlights need for stronger rights guarantees

The right to silence, a fundamental and centuries-old principle of our criminal justice system, has been severely curtailed by legislation rushed through the NSW Parliament in late March. The erosion of this basic right highlights the precarious nature of human rights in Australia and underscores the need for stronger protection. The new legislation allows courts to, in certain circumstances, draw unfavourable inferences against a person accused of a serious offence who, during a police interview, refuses or fails to mention facts that they later rely on in their defence. Before these changes, drawing such inferences was expressly prohibited.

The new laws provide a strong disincentive to invoking the right to silence. In effect, they say to a person accused of a crime, you have the right to remain silent but if you do it may harm your defence. As the High Court has said, a key part of the right to silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer questions or to provide information. To draw such an adverse inference “would be to erode the right to silence or to render it valueless.”

The rationale for the changes is flawed as a matter of both principle and practice.

First, the right and ability of an accused person to remain silent in the face of police questioning is not a “legal loophole”, as Attorney-General Greg Smith has suggested. Rather, as the High Court has stated, it is a “fundamental rule of the common law”. Together with the protection against self-incrimination, the right to silence is a critical element of the principle that the prosecution must prove guilt beyond reasonable doubt, as opposed to the accused having to prove their innocence. Moreover, the right recognises the power imbalance that often exists between police and a suspect, and reduces the risk of a vulnerable and innocent suspect providing police with a false confession, resulting in a wrongful conviction.

Second, the changes wrongly assume that an accused who fails to answer police questions does so because they know they are guilty and that an accused who raises a defence for the first time after police questioning has recently invented it. There are many reasons why an accused but innocent person may remain silent, or fail to mention a particular fact, during interrogation. The allegations may be too vague or too complex for them to respond to at that point in time. They may not know what facts the law considers relevant or, alternatively, they may be relying on legal advice. They may be in shock, affected by drugs or alcohol, fearful of police or have poor English skills.

Third, there is no empirical evidence to support the Government’s claims that “hardened criminals” are “exploiting” the right, or that the reforms will improve efficiency. On the contrary, the NSW Law Reform Commission has found that the data “does not support the argument that the right to silence is widely exploited by guilty suspects, as distinct from innocent ones, or the argument that it impedes the prosecution or conviction of offenders.” The Commission concluded that “[r]ather than enhancing efficiency, modifying the right to silence when questioned by police would be likely to reduce the efficiency of police investigations, trials and the criminal justice system in general.”

Further, the English legislation on which the NSW law was explicitly modelled has been roundly criticised. According to one cost-benefit analysis, “[t]he demands on judge and jury of the complex edifice of statutory mechanisms are enormous in proportion to the evidential gains they permit”. Indeed, far from “improv[ing] the justice system in the UK” as the NSW Police Association has claimed, the legislation has been described by the English Court of Appeal as a “notorious minefield”.

More fundamentally, the European Court of Human Rights has found in a number of cases that the drawing of adverse inferences under the legislation, or the failure of a judge to appropriately restrict the jury’s discretion to draw such inferences, violated the fair trial guarantee in the European Convention on Human Rights.

However, unlike England, which has incorporated the Convention into its laws via the Human Rights Act 1998, and the United States and Canada whose constitutions guarantee the right to silence, Australia does not have equivalent human rights protections. Thus, while a person in the England whose right to a fair trial is breached may complain to a domestic court and ultimately the European Court of Human Rights, accused in NSW have far less certain avenues of recourse.

Ultimately, the rapid passage of such bad laws – which have everything to do with the Government’s desire to appear tough on crime and nothing to do with considered law reform – highlights the vulnerability of human rights in Australia. Indeed, despite critically undermining a fundamental and long-standing legal principle against the recommendations of seven previous inquiries into the issue in Australia, the Government was, after a two week public consultation, able to push the legislation through the Parliament in only eight days with limited scrutiny. It is cases such as this that underscore the need for stronger rights protection in this country.

Rowan Minson is a King & Wood Mallesons lawyer on secondment at the Human Rights Law Centre.