NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

The New South Wales Council for Civil Liberties (CCL) is one of Australias leading human rights and civil liberties organisations. Founded in 1963, NSWCCL is a non-political, nonreligious and non-sectarian organisation that champions the rights of all to express their views and beliefs without suppression. To this end the NSWCCL attempts to influence public debate and government policy on a range of human rights issues by preparing submissions to parliament and other relevant bodies. CCL is a Non-Government Organisation (NGO) in Special Consultative Status with the Economic and Social Council of the United Nations, by resolution 2006/221 (21 July 2006).
Submission concerning the draft of the Evidence Amendment (Evidence of Silence) Bill 2012 We are appreciative of the invitation to comment on the exposure draft 1. An irrational proposition: that silence implies guilt or prevarication. !he proposed bill "ill abolish the right of an accused person to decline to ans"er #uestions b$ police "ithout an$ adverse inferences being dra"n in a subse#uent trial b$ the prosecution or the court !he abolition "ill appl$ to all serious indictable offences%those "ith five&$ear 'ail sentences 1 !he (olice Association supposes that the change is common sense Well) it ma$ be a commonl$ held vie" But it is not good sense As the *e" South Wales +a" ,eform -ommission argued) !he crucial #uestion is "hether an inference of guilt or of recent fabrication should rationall$ be dra"n from the failure to ma.e timel$ disclosure !he failure to ma.e timel$ mention of a matter might "ell reflect on "hether the later assertion "as true !he true issue is "hether or not the explanation for that failure "as in fact a consciousness of guilt Even if the defendant acted completel$ unreasonabl$) if he or she "as not motivated b$ a consciousness of guilt) the silence is irrelevant/ it proves nothing 2 0Emphasis in original1 2n other "ords) for prosecutors or 'udges to impl$ that the silence of the accused under #uestioning b$ itself thro"s doubt on the veracit$ of testimon$ or supports his or her guilt of the accused "ould be to use irrational) or deliberatel$ invalid) argument As argued belo") there are man$ other reasons "h$ a person might fail to mention a fact that the defence later relies upon

1 2

The vast majority of offences. New South Wales Law Reform Commission, Report ! "2###$ at 2.111.

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

2. The foundation of the right to silence. 3undamentall$) the right to silence is implied b$ the assumption of innocence and its corollar$) the obligation of the prosecution to prove its case be$ond reasonable doubt !o compel a defendant to spea. on the penalt$ of suffering adverse comment to a 'ur$ is to re#uire the accused to prove) at least partiall$) their innocence An attac. on the right to silence is an attac. on the fundamental principles of criminal la" 3. The findings of the Law Reform Commission. 2n its in#uir$ into the right to silence in the *e" South Wales +a" ,eform -ommission found/ 2 145 6the -ommission has concluded that it is not appropriate to #ualif$ the right to silence in the "a$ provided b$ the English and Singapore legislation !he -ommission considers the right to silence is an important corollar$ of the fundamental re#uirement that the prosecution bears the onus of proof) and a necessar$ protection for suspects 2ts modification along the lines provided for in the England and Wales and Singapore "ould) in the -ommission7s vie") undermine fundamental principles concerning the appropriate relationship bet"een the po"ers of the State on the one hand and the libert$ of the citi8en on the other) exacerbated b$ its tendenc$ to substitute trial in the police station for trial b$ a court of la" !here are also logical and practical ob'ections to the English provisions An examination of the empirical data) moreover, does not support the argument that the right to silence is "idel$ exploited b$ guilt$ suspects) as distinct from innocent ones) or the argument that it impedes the prosecution or conviction of offenders 4 . The failure of arguments supporting the change. ,ights that have been accepted for a long period should not be removed unless there is evidence that the$ are leading to in'ustice%and that their removal "ill not create "orse in'ustice !he arguments in favour of the change are not good And there "ill be more false convictions if the change is adopted Although in drafting the bill there has been an attempt to ensure that people are informed of "hat "ill happen if the$ do not tell the police of an$ defence the$ subse#uentl$ appeal to) that "ill not be enough to prevent serious harms arising) "ith significant financial cost to the State

New South Wales Law Reform Commission, Report ! "2###$ at 2.1%&

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

i. The bikie cone of silence. !he (remier and the Attorne$ 9eneral have given one .ind of example) the :bi.ie cone of silence;) "here it is asserted that there have been problems 2n order to tr$ and brea. that silence) it is proposed to distort the trial process) "ith the near certaint$ of false convictions But the belief that removing the right to silence "ill overcome that problem is almost certainl$ mista.en !he mischief that the proposed changes are meant to attac. is a supposed barrier to investigating crimes against third parties< it is the reluctance of a club=gang member to become a police informer 2t is not a matter of charges against the person "ho remains mute !he proposed changes do not challenge the >bi.ie cone of silence>< the$ do not force the reluctant police informer to accuse his friends (eople "ho are not influenced b$ the section 41? of the -rimes Act (concealing a serious indictable offence)) "ho from a mista.en sense of lo$alt$ or fear of the conse#uences "ill not tal. about "hat their fello" club=gang members have done) are not li.el$ to change their minds for fear of "hat "ill happen "hen the$ themselves are in court

ii. Ambush of the prosecution. 2t has been claimed that criminals can use the right to silence to ambush the prosecution case% presenting an alibi or other defence for the first time during their trial) "hen it is too late for the police to collect countervailing evidence 2t is true that at present) under section 5@ of the Evidence Act) neither a 'udge nor the prosecution can impl$ that evidence presented in court is dubious or that it implies guilt on the ground that the accused did not produce it during pre&trial #uestioning b$ police But on the one hand) a defendant "ho has an alibi is re#uired to produce it at the committal hearing%if this is not done) adverse inferences can and "ill be dra"n< or the evidence ma$ be re'ected entirel$ And on the other) even if the la" is changed) experienced defendants could sa$ nothing before their trials) but then dismiss their la"$ers and claim to have been badl$ advised% hence "ith ne" la"$ers) the$ are producing their defences !he real potential for ambush is that of a defendant) and it lies in the "a$ that (olice "ould intervie" a suspect 2t is not a stretch to imagine that (olice "ould be ver$ economical "ith the facts) so that a suspect "ould have little in.ling of the significance of an ans"er to a particular #uestion 2f there is an$ "eight to the (olice Association>s vie" that suspects should reveal their "hole defences "hile being #uestioned) the corollar$ "ould seem to be that the (olice should be e#uall$ as forthcoming) and ma.e a complete disclosure to the suspect of the facts that are at hand !o do other"ise "ould be to consign a suspect to a Aaf.aes#ue ma8e that is designed to render a suspect confused and vulnerable !here have been too man$ sad cases "here (olice have ta.en advantage of intellectuall$ challenged persons< that same sense of be"ilderment is "hat "ould confront a suspect "ho is full$ competent) if the changes "ere implemented

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

iii. The view that silence suggests guilt. 2t is also contended that onl$ criminals "ould refuse to ans"er #uestions%an innocent person "ould den$ police accusations and offer an explanation for circumstances "hich suggest guilt But the supposition that onl$ a guilt$ person has a reason for not spea.ing freel$ to police is absurd An arrest is often made in the small hours ("hen people are at home) 3or most) it is the first time the$ have encountered an$thing of the .ind (eople ma$ confused) upset) or in shoc. An$one from a culture "ere police are distrusted%including Aboriginal people) but also man$ migrants%is li.el$ to resist #uestioning) or to react badl$ "hen #uestioned !he$ ma$ be terrified) especiall$ if the$ come from a countr$ "here a .noc. in the night commonl$ leads to disappearance and death Aboriginal people) as the ,o$al -ommission into Aboriginal people in custod$ found) find custod$ oppressive) and are li.el$ to be amenable to suggestion) especiall$ "e might add) "here bail is a bait An$bod$ ma$ be emotional) panic.ed) inarticulate or confused !he$ ma$ be affected b$ alcohol or drugs Cost people do not have enough .no"ledge of the la" to guide them as to "hether to admit to a crime) nor the conse#uences of doing so) or "hat else to sa$ 2n these circumstances) the$ are li.el$ to sa$ the "rong thing Also) in the memories of man$ adults in *SW there is lodged the spectacle of the Wood ,o$al -ommission 2ts findings did not engender confidence in the integrit$ of the *SW (olice 3orce An$ suspect in custod$ "ould) not unreasonabl$) be suspicious of the (olice process and be reluctant to be totall$ fran.

(eople ne"l$ arrested "ill have difficult$ in remembering the past clearl$ "ithout thin.ing about it in calmer circumstances !he$ are li.el$ to give confused or conflicting ans"ers) on "hich police "ill pounce !he$ ma$ exaggerate) or give partiall$ untrue ans"ers B !he$ ma$ fail to mention matters "hich "ould demonstrate their innocence because the$ are embarrassed) or for reasons "hich have nothing to do "ith the crime concerning "hich the$ are being #uestioned&to protect their partners or children) for example !he$ ma$ even admit to a crime in an attempt to protect their children or spouses from suspicion (olice ma$ pressure them into confession on promise of bail !hose most vulnerable "ill be people "ho have not been loc.ed up before Alread$) there have been cases "here suspects have confessed to crimes that the$ could not have committed !here "ill be more false confessions and mista.en convictions !hen there "ill be the usual conse#uences of people being put in prison !he -ommission also comments in similar fashion on these matters) as follo"s/
'

They may for instance assert what they thin( must have )een the case, rather than what they remem)er.

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

Reasons for silence consistent with innocence 2 11D Can$ submissions and commentators challenged the vie") outlined in paragraph 2 ?1 above) that an innocent suspect "ould al"a$s den$ an accusation levelled b$ the police and offer an explanation for the circumstances or conduct "hich created the suspicion Eo"ever) there are a number of considerations that might lead a person not to spea. at all or unguardedl$ to police "hen he or she is suspected or accused of committing a crime (ersons in such a position might "ell) of course) "ish immediatel$ to exculpate themselves but there is no reason to suppose that all innocent persons "ould adopt this approach 2 11? 2t is reasonable that innocent persons faced "ith a serious accusation might "ish to consider their situations carefull$ before ma.ing an$ disclosure) especiall$ "here the circumstances appear suspicious but it cannot be assumed that the$ are rational and articulate 2n man$ cases) suspects ma$ be emotional) perhaps panic.ed) inarticulate) unintelligent) easil$ influenced) confused or frightened or a combination of these !he$ ma$ be unable to do themselves 'ustice Such persons ma$ be "ell advised to hold their peace) at least at an earl$ stage !he$ ma$) of course) have something to hide) but that something ma$ simpl$ be shameful and not a crime) or it ma$ implicate others for "hom the$ feel responsible !he supposition that onl$ a guilt$ person has a reason for not spea.ing freel$ to investigating police is an unreasonable assumption 2 11F Attitudes towards police. Some suspects remain silent because the$ hold an extremel$ negative) uncooperative) fearful or distrustful attitude to"ards the investigating police or the police force in general !his vie" "as also expressed b$ several submissions and commentators 2 115 Cultural characteristics -ultural characteristics ma$ also influence "hether an innocent suspect remains silent "hen #uestioned b$ police 2t is clear that Aboriginal suspects are more li.el$ to ans"er police #uestions than the general population !his has led to the creation of specific rules regulating police #uestioning of Aborigines in several 'urisdictions -ultural factors ma$ also lead suspects to remain silent 3or example) certain cultures discourage discussion of domestic abuse and sexual assault 2t "as submitted that silence ma$ be a normal and positive communication in some cultures) in a "a$ "hich is not generall$ understood in *e" South Wales !he -ommission accepts that some cultural factors ma$ "ell affect "hether a suspect remains silent "hen #uestioned b$ police 2 11@ Personal characteristics. English research indicates that "omen are much more li.el$ than men to ans"er police #uestions and that 'uveniles are more li.el$ than adult suspects to respond to police #uestions Gne submission stated that a significant problem "ith the Young Offenders Act 199 (*SW)) "hich provides for a s$stem of

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

"arnings) cautions and $outh 'ustice conferences as alternatives to the prosecution of $oung offenders) is that it effectivel$ precludes $oung suspects from rel$ing on the right to silence because the$ are re#uired to ma.e admissions before being eligible to be punished under the alternative regime "hich the Act establishes for indictable offences 2 120 (ersonal characteristics such as mental disorders and illnesses) intellectual and developmental disabilities) ac#uired brain in'uries and lo" intelligence ma.e it difficult for suspects to communicate clearl$ "ith police "hen #uestioned !he 2ntellectual Hisabilit$ ,ights Service stated in its submission that it is common practice for its solicitors to advise suspects to remain silent during police #uestioning because of the ris. of their clients giving inaccurate ans"ers and ma.ing false confessions Although unreliable confessions ma$ subse#uentl$ be successfull$ challenged) this "ould not ade#uatel$ protect suspects "ho spend time on remand or in custod$ 2 121 ,esearch conducted for the ,o$al -ommission on -riminal Iustice concluded that the average 2J of suspects #uestioned "as in the bottom DK of the general population ,esearch carried out for the -ommission in 1@@D revealed that 24K of persons "ho appear in *e" South Wales +ocal -ourts have either an intellectual disabilit$ or a borderline intellectual disabilit$ 2 122 !hese characteristics also affect suspects7 abilit$ to understand or exercise other rights "hen #uestioned b$ police) including the right to a support person) to legal advice and) "here re#uired) to an interpreter !his clearl$ compounds the problems discussed above 2 124 Communication factors. *umerous other factors also affect the abilit$ of suspects to communicate "ith police !hese include language s.ills and education levels A suspect7s abilit$ to communicate ma$ also be compromised b$ the effects of alcohol and other drugs A suspect "ho is arrested late at night is li.el$ to be tired and disoriented 2 12B Police disclosure. 3re#uentl$ the police investigation "ill be developing and incomplete at the time the suspect is intervie"ed !he matters being put to him or her ma$ "ell) therefore) be vague) confused) or "rong !he police ma$ not reveal enough detail about the allegations to enable the suspect to ans"er or to "arrant explanation +ac. of police disclosure "as the most fre#uent reason for advising clients to remain silent reported b$ defence la"$ers "ho participated in the -ommission7s surve$ for this reference Can$ la"$ers noted that this advice "as often a temporar$ strateg$ pending disclosure b$ investigating police of more information A recent stud$ of English solicitors) advising suspects in the light of the amendments to the la" in England) also concluded that this is a common reason for legal advice to remain silent

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

!he English -ourt of Appeal has held that the extent of police disclosure of the evidence against the suspect is a factor "hich the 'ur$ should consider in assessing the reasonableness of legal advice to the suspect to remain silent !his exposes $et another issue that ma$ be sub'ect to extensive litigation at the trial 2 12D Protection of or fear of others. !he desire to protect others) particularl$ famil$ members and friends "hom the suspect .no"s or believes is or ma$ be responsible for or involved in the offences concerned) is another reason for silence "hich is consistent "ith innocence 2n a research stud$ conducted for the ,o$al -ommission on -riminal Iustice at least 12K of suspects exercised the right to silence for this reason Alternativel$) a suspect ma$ remain silent for fear of being labelled a police informer or for fear of reprisal b$ the offender 2 12? Other reasons. 2n other situations police ma$ as. the suspect ver$ specific #uestions) about events "hich allegedl$ occurred man$ $ears ago or "hilst the suspect "as intoxicated or other"ise distracted) "hich place unrealistic demands on the suspect7s memor$ !he suspect ma$ feel unable to sort out the facts or fear ma.ing a mista.e due to the pressure of police #uestioning !he suspect ma$ reasonabl$ "ant to thin. about the circumstances) refresh his or her memor$) or obtain legal advice A suspect ma$ decline to ans"er police #uestions in order to conceal conduct of "hich he or she is embarrassed or ashamed) to conceal illegal behaviour "hich is not under investigation) or merel$ due to shoc. and confusion at the allegations 2 12F Gne submission argued that the defendant has the opportunit$ to tell the court at trial the reasons for remaining silent "hen #uestioned b$ police !he *e" South Wales (olice Service even argued in favour of a regime "here the 'udge or magistrate could re#uire the defence to explain "h$ the defendant exercised the right to silence "hen #uestioned b$ police Such a re#uirement "ould involve abolition rather than modification of the right of silence and is not 'ustified 2 125 Can$ of the reasons for remaining silent "hen #uestioned b$ police are also relevant to the decision not to give evidence at trial 2n addition) man$ of the reasons for silence discussed above involve complex considerations "hich ma$ not be readil$ understood b$ 'uries in the absence of expert ps$chological or sociological evidence -onversel$) some of these reasons ma$ pre&dispose a 'ur$ to over&empathising "ith the defendant 2t must be borne in mind that the trial is about the guilt or other"ise of the defendant< "hat did or did not occur at the police station is ver$ much a secondar$ issue 2 12@ 3inall$) as Iustice Smith of the Supreme -ourt of Lictoria has pointed out) to dra" adverse inferences from silence on police #uestioning in the absence of explanation b$ the defendant places him or her under considerable pressure to give

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

evidence at trial in order to provide an explanation for exercising the right to silence "hen #uestioned b$ police !he -ommission also arguedD that if the right to silence "ere removed) accused people "ould probabl$ be forced to get into the "itness box and) Mif the suspect be $our t$pical suspect) "ould be no match for a reasonabl$ competent prosecutor even if he or she be innocent7 M!his ma$ be an unstated aim of those "ho "ould argue for change N that is) in effect) to compel accused persons to give evidence 7 !hose least vulnerable "ill be career criminals !. "roviding legal advice. 2t is true that in the Onited Aingdom) the -riminal Iustice and (ublic Grder Act 1@@B provided that a court ma$ dra" adverse inference from a failure to mention an$ fact relied upon b$ the defence if that matter could have reasonabl$ been mentioned to the investigating police officer But in the Onited Aingdom) a dut$ solicitor is available at ever$ police station) to dra" the charges and to supervise the disclosure of the case before intervie"s are re#uired 2t is true) the bill re#uires that a solicitor7s advice is to be obtained) b$ telephone if necessar$) about the need to ans"er #uestions Pet it is clear from the above arguments that more advice is needed than can be given over the telephone !he bill does not even re#uire that the accused person understand the caution< not that he or she ac.no"ledge that it is understood !here is apparentl$ no intention of introducing the full OA scheme here And the Onited Aingdom has its Bill of ,ights and is sub'ect to the European -ourt of Iustice B$ contrast there is no Bill of ,ights in Australia) and the assistance of a solicitor is expensive Eere a solicitor costs Q400 and hour%so onl$ "ealth$ people can afford to get one out of bed (Hrug lords "ould have no problem ) Worse) no solicitor is available in remote districts Can$ to"ns are hours7 drive a"a$ from solicitors%-obar) Wilcannia and Bre"arrina) for example (olice moreover have a habit of discouraging people from seeing advice from la"$ers before or "hile the$ are #uestioned !he$ are also .no"n to #uestion suspects at times "hen no la"$er is available 2f those "hom police #uestion are to be denied the right to silence) then a legal practitioner should be provided) at government expense) throughout the #uestioning 2t should be re#uired that the practitioner be one "ith experience in the criminal la" But even an experienced criminal la"$er could not properl$ advise unless he=she .ne" the circumstances of the case alleged and thus the potential importance of a particular RfactR

at 2.12

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

Where such support is not provided police records of intervie" should not be acceptable as evidence #. The costs. Attempting to avoid false convictions under the proposed regime "ill mean longer trials) as the +a" ,eform -ommission argued 2 114 What happened in the police station is a fre#uent sub'ect of evidence Since the 'ur$ must consider "hether it is fair to use the defendant7s silence adversel$) it is necessar$ that the$ be given a complete picture of the relevant surrounding circumstances) concerning not onl$ communications "ith the police but also the defendant7s situation !his introduces a substantial area of time consuming disputation "hich "ill be almost certainl$ peripheral to the real issues in the case for ver$ marginal gain Gne of the concomitant problems N to name but one N is that it has to be evaluated b$ the 'ur$ ver$ much second&hand As an$one "ith an$ experience .no"s) even "ith complete candour b$ all parties and the best "ill in the "orld) the version of events that comes to be presented in -ourt is edited) not onl$ b$ limits of understanding) perception and recollection but b$ the trial process itself) sometimes #uite mar.edl$ and unrealisticall$ and) indeed) unfairl$ to both the police and the defence 2n man$ cases this does not matter) but in man$ it "ill !he proposed change then "ill not lead to the truth being discovered 2t "ill not brea. the resolve of people "ho) from a mista.en sense of lo$alt$ or fear of the conse#uences refuse to :rat; upon their mates !he :bi.ie cone of silence; "ill not be bro.en b$ this proposed la") "hatever its proponents sa$ But there "ill instead be mista.en convictions on the basis of false confessions or inade#uate) confused ans"ers to #uestions Where false convictions are recorded) the communit$ "ill be the poorer for innocent people spending time in 'ail !here "ill be further costs in the efforts to get those convictions reversed Cost seriousl$) respect for the la" and the rule of la" "ill be eroded !he proposed change is not good sense Cartin Bibb$ -onvenor) the -ivil and 2ndigenous ,ights) (olice) Securit$ and Antiterrorism (o"ers and -riminal Iustice Subcommittee

NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

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