The Evidence Amendment (Evidence of Silence) Bill 2012 (NSW): Legislative Improvement or Procedural Unfairness?

Corey Gauci- 2013

The Evidence Amendment (Evidence of Silence) Bill 2012 (NSW): Legislative Improvement or Procedural Unfairness?
I. INTRODUCTION In an effort to end the misuse of the right to silence pursuant to the Evidence Act1, along with the steady rise of bikie gang related crimes, New South Wales Premiere Barry OFarrell has proposed amendments to the current Evidence Act2; section 89 of The Evidence Amendment (Evidence of Silence) Bill 2012 (NSW)3. Under the proposed Bill, Juries will be given the right to draw an adverse inference, in certain situations, from a defendants silence during police questioning4, representing a radical departure from current common law and legislation5. Consequently, the Bill has come under intense scrutiny since its proposal in late 20126. Advocates of the change highlight the current problems affecting the police investigation process, and how the proposed Bill would ultimately, assist officers in conducting their investigations and eliminate the misuse of the Right To Silence by criminals7. Alternatively, proponents of the Bill highlight the complexities, injustices and breaches of human rights, which flow as consequences of these changes to the law8. This paper will highlight the various arguments, both for and against the proposed bill and assess the workability of the Bill as part of the Australian legal system.

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1995 (NSW) 3 Anna Patty. Right to Silence law changed, Sydney Morning Herald (Sydney), 14th August 2012, 22 4 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) 5 Petty and Maiden (1991) 173 CLR 95; Evidence Act s 89 6 Letter from The Law Society of New South Wales to The Honorable Paul Lynch MP, 8 October 2012, 2 7 Anna Patty. Right to Silence law changed, Sydney Morning Herald (Sydney), 14th August 2012, 22 8 Ibid.

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II. THE HISTORY OF THE RIGHT TO SILENCE The right to silence is a recent development, having come of age following the introduction of the Criminal Evidence Act9 and the Judges Rules10. The English law relating to the right to silence applied in NSW until 1891, when the defendant became a competent witness in NSW11. The Evidence Amendment Act12 expressly preserved the defendants right to remain silent by providing that the defendant was a competent but not a compellable witness13. Two years later, the Full Bench of the Supreme Court of NSW held that it was permissible to direct the jury to draw adverse inferences from an accuseds failure to testify14, however, this was eventually overturned in 190015. Finally, the Evidence Act16 codified the current common law right to silence when questioned by police in NSW17. III. COMMON LAW RIGHT TO SILENCE Recent High Court decisions have reasserted the accuseds right to silence in the face of police interrogation and the general prohibition on the judge and the prosecutor saying anything in relation to the exercise of the right. In Petty & Maiden v The Queen18, the court rejected the distinction between inferring consciousness of guilt from silence and denying credibility to a late defence by reason of earlier silence19. The majority, along with Brennan J agreed that to permit adverse inferences would be to erode the right or render it valueless20.

1898 1912 11 Evidence Amendment Act 1891 (NSW) 12 1891 (NSW) 13 Evidence Amendment Act 1891 (NSW) 14 R v Kops (1893) 14 LR (NSW) 150 15 Accused Persons Evidence Act 1898 (NSW) s1; replaced in 1900 by the Crimes Act 1900 (NSW) s407 16 1995 17 Evidence Amendment Act 1891 (NSW) 18 [1991] 19 Petty & Maiden v The Queen [1991] 20 Ibid.
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Moreover, the decision in Petty & Maiden v The Queen21, upheld policy considerations insofar as rejecting inferences from the accuseds silence during police interrogation, similarly raised by Deane J in Carr v R22 and Duke v R23, where consideration was given to the appropriateness of directions to the jury where police evidence consisted of an unsigned confession of a suspect in police custody. More recently, the High Court dealt with the right to silence in Azzopardi v The Queen24 and Davis v The Queen25. Both cases are significant as they contain the most recent judicial statements by the High Court concerning the right to silence in Australia and the evidentiary consequences26. Both cases reaffirmed the right to silence and the responsibility of the Crown to produce evidence against an accused27. Both cases illustrate the underlying significance of silence during the trial, the principles of which can be traced back to the questioning stages of the investigation as a fundamental right in that, no adverse inferences can be drawn against an accused who fails to give evidence during the investigation28.

[1991] [1988] HCA 47; (1988) 165 CLR 314 23 [1972] S.C.R. 917 24 (2001) 205 CLR 50 25 (2001) 205 CLR 50 26 Azzopardi v The Queen (2001) 205 CLR 50 27 Ibid. 28 Azzopardi v The Queen (2001) 205 CLR 50
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IV. ARGUMENTS FOR THE AMENDMENT A. Improve efficiency and deterring the misuse of the right to silence The proposed amendments purport to respond to the ongoing difficulties police encounter in investigating gang-related shootings and other violence in Sydney, and the challenges of prosecutors facing so-called ambush defences29. The Government presents the reforms as a common sense way of closing a legal loophole to stop criminals exploiting the system to avoid prosecution and breaking the criminals code of silence, which has been facilitated by the misuse of the right by defendants30. Conversely, Professor John Jackson has argued that the police interview has been transformed by the [English] legislation into a formal part of the proceedings against an accused31. The demands this places on police may outweigh any limited advantage they obtain from the reforms. As the New South Wales Law Reform Commission noted, empirical data does not support the argument that the right to silence is widely exploited by guilty suspects32. Accordingly, there is no evidence that the current safeguards for an accused is exploited in this way, nor that such a code of silence commonly operates33. Furthermore, the reference to common sense is misleading in that, the amendment would effectively raise complex practical and legal issues, which may hamper police investigations, delay trials and generate numerous appeals.

Anna Patty. Right to Silence law changed, Sydney Morning Herald (Sydney), 14th August 2012, 22 30 Ibid. 31 Jackson, Silence and Proof: Extending the Boundaries of Criminal Procee dings in the United Kingdom (2001) 5 International Journal of Evidence & Proof 145, 172. 32 D Brown, PACE Ten Years on: A Review of the Research (Home Office, London, 1997) at 168-171 33 Ibid.
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B. The need to guide juries Jurors are aware that an accused can choose to provide a statement to officers during the investigation process, and in the absence of such statement, jurors often look with growing suspicion upon an accused that refuses to do so34. Legal commentators argue that juries hesitate to draw an inference from the defendants silence without receiving judicial guidance, however, this can only be drawn through speculation, since in New South Wales, juries do not provide reasons for their decisions35. Consequently, as the law currently stands, an accused may not be aware of the weight that juries may place on an their accuseds silence during the investigation process, which may adversely affect the outcome of the trial36. Accordingly, the Bill would provide the accused with a caution that the jury may give weight to his or her refusal to provide a statement, which isnt part of the current caution provided to defendants, but nevertheless, may influence an accused in assisting the investigating officers where possible, thereby providing an accused with the consequences which may arise by failing to answer questions during the investigation process. C. The amendment would not abolish the right to silence While opponents of the amendment propose that the changes would abolish the right to silence, that of which is a fundamental right held by an accused, proponents assure that the Bill does not have such a drastic effect in practice. According to the European Court of Human Rights, the right to silence is not absolute, and, if certain safeguards are provided, the Convention will not be infringed37. The accused is not required to cooperate with police and answer their questions or volunteer information38.

Jerry Siegel, Introduction to Criminal Justice (Wardworth Cengage Learning, 12th Ed, 2009) 457. D Harvey, The Right to Silence and the Presumption of Innocence [1995] New Zealand Law Journal 181 at 186 36 Ibid. 37 Murray v UK (1996) 22 EHRR 29; Adetoro v UK [2010] ECHR 609 38 Ibid.
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However, if they do exercise their right to silence, the consequences may be that an adverse inference is raised at trial, harming their defence39. It is important to note that the adverse inference is not a sanction for failing to cooperate with police, and the inference can only be drawn if it is proper40. However, the threat of an adverse inference does place pressure on the suspect to talk to police- this is one of its stated goals- and this pressure is inconsistent with the suspects right to silence41, thereby breaching other rights held by an accused regardless of the fact that the inference is not a sanction for failing to cooperate with police. V. ARGUMENTS AGAINST THE AMENDMENT A. S89A(1)- Shifting the onus of proof & presumption of innocence Civil libertarians argue that the Bill represents a clear shift in the burden of proof in the criminal trial42, also being described as a back-door way of changing the onus and standard of proof which has for centuries been on the crown to prove its case beyond reasonable doubt43. If it is permissible for silence under police questioning to reinforce the prosecutions case, this must have the effect of putting pressure on suspects to give answers or run the risk that they will strengthen the evidence against them44. In effect, this removes the pre-existing right to say nothing without significant penalty45, which critics argue, is a clear watering down of the prosecutions burden of proof46, which has proven to be a fundamental right in the course of procedural fairness and may produce unfavorable decisions if such onus is removed.

Murray v UK (1996) 22 EHRR 29; Adetoro v UK [2010] ECHR 609 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) s89A(1) 41 Petty and Maiden (1991) 193 CLR 95 42 Anna Patty. Right to Silence law changed, Sydney Morning Herald (Sydney), 14th August 2012, 22 43 Ibid. 44 Vivian Lord, and Allen Cowan, Interviewing in Criminal Justice: Victims, Witnesses, Clients, and Suspects (Jones & Bartlett Publishers, 1st Ed, 2011) 229 45 Evidence Act 1995 (Cth) s89 46 Anna Patty. Right to Silence law changed, Sydney Morning Herald (Sydney), 14th August 2012, 22
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B. S89A(2)(b)- Opportunity to consult an Australian legal practitioner Solicitors are only in a position to give proper advice when they are fully apprised of the case against their client and the surrounding circumstances47. It is difficult to conceive of a situation where a solicitor could properly advise a client about the effects of the Bill on the telephone. Furthermore, the amendment has the potential to create a conflict on interest where a solicitor may be called upon by the courts to give evidence of the reasons for advising an accused to remain silent48. Consequently, opponents of the Bill are concerned that the proposed amendment would create an intolerable ethical dilemma for solicitors, resulting in a solicitor refusing to advise an accused49. C. S89A(4)- Supplementary caution requires no particular form of words The experience in England suggests that the majority of defendants do not comprehend the full import of the secondary caution50. Research conducted after the introduction of the more complex caution in England, showed that only 11% of the sample groups were able to demonstrate full understanding of their Right To Silence51. Consequently, section 89A(4) elevates the likelihood of defendants failing to understand the caution. Fittingly, the amendment should enforce a particular set of words for the caution. As it is now framed, the Bill covers a wide range of offences52. Nonpolice authorities, which may not regularly arrest or question persons, deal with a number of these offences53.
Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 5 48 Janine Griffiths-Baker, Serving Two Masters: Conflicts of interest in the modern law firm (Hart Publishing, 1st Ed, 2002), 325 49 Ibid. 50 Susanne Fenner, Gisli Gudjonsson, and Isabel Clare, Understanding of the current police caution (England and Wales) among suspects in police detention (2002) 12(2) Journal of Community & Applied Social Psychology 83-93 51 Ibid. 52 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) s89A(1)
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i.e. Making a false declaration is an offence, which carries a maximum of 5 years, which is routinely investigated and prosecuted by regulatory agencies
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A particular form of words for the supplementary caution would reinforce consistency amongst investigators54, and eliminate the risk of the accused misunderstanding the supplementary caution, which could ultimately affect the procedural fairness of the case and be used as a point of appeal at the conclusion of the case. D. S89A(5)- Serious indictable offence The Law Enforcements (Powers and Responsibilities) Act55 (LEPRA) defines a serious indictable offence as an indictable offence that is punishable by imprisonment for life or for a term of 5 or more years56. Accordingly, there exists a wide range of offences which fall under the category of serious indictable ranging from, murder to the assault of a police officer. DPP v Carr57 highlights a situation where police error in handling a hostile situation, ultimately led to the commission of an offence, which while minor in nature, held a maximum imprisonment term of 5 years. Accordingly, the amendment would cover a variety of offences, those of which were not intended affected by the provisions of the amendment. Fittingly, the Bill should provide a narrower definition for which, the amendment would apply, taking into account that there are crimes, which while being classified as a serious indictable offence, may not necessarily include the severity that the amendment aims to cover in its application, nor should be subjected to the consequences that the Bill would produce against a defendant.

(Police and non-police) (2002) 56 Law Enforcement (Powers and Responsibilities) Act 2002 (Cth) s3 57 [2002] NSWSC 194
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E. S89A(6)- Supplementary caution does not apply to an accused under 18 years of age or who has a cognitive impairment The Bill provides that cognitive impairment includes; an intellectual disability, a development disorder, a neurological disorder, dementia, a severe mental illness, and a brain injury58. An individual may choose to exercise the Right To Silence when questioned by investigating police59, citing; shock or confusion by the allegations, drug or alcohol intoxication, or inarticulate and/or poor English skills; that of which is not dealt with in the Act60. Studies highlight the existence of an enhanced risk of susceptibility to coercion and failures of understanding when questioned, in particular, when recounting facts to police during the interrogation process61. Accordingly, it would seem more appropriate that s89A(6) be amended to refer to the definition of vulnerable person under regulation 24 of the Law Enforcement (Powers and Responsibilities) Regulations 2005 (LEPRR). Consequently, if s89A(6) was replaced with the definition of vulnerable person under Regulation 24, those who fail to answer questions by investigating police due to shock, confusion or lack of English skills, would be exempt from s89A as it would be unreasonable to allow juries to make an adverse inference if there are valid reason for the accuseds failure to answer questions which the Act fails to adequately address. F. S89A(7)- Opportunity to consult Unfortunately, 24-hour advice is not always readily available in most regions of NSW outside of Sydney62. Moreover, the consideration of the defendants means when assessing the right to consult with a legal practitioner could lead to inconsistencies in the application of s89A, leading to adverse consequences for the accused63.
Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) S89A (10) Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 2 60 Ibid. 61 Michael Davis Criminal Investigative analysis in the Australian Context (2006) InPsych Journal 33, 34 62 Deborah Rhode, and Ernest McFarland, Access to Justice (Oxford University Press, 1st Ed, 2004) 216 63 Evidence Amendment (Evidence of silence) Bill 2012 (NSW) s89A (7)
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This leads to the obvious conclusion that it is all but pointless to introduce the proposed legislation successfully without a fully costed and funded advice support infrastructure to assist the accused prior to questioning, regardless of the means of the accused, or the time or place of the questioning throughout NSW64. It is necessary to note that the Attorney General has proposed to trial a telephone advice line by lawyers to give an accused access to a legal practitioner, however, the Bill does not include a requirement for the continuation of such a service in the future65. G. S89A(8)- Non-derogation from any requirements imposed by law on an investigating body LEAPRA provides that the maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant66. If a legal practitioner was required to provide adequate advice to an accused, they would need to have time to consider the import of that information, before providing legal advise to the accused as required by s89A 2(b)67. Consequently, detention time is likely to increase as a result of added pressure on legal practitioners in providing advise to the accused, while also placing an added burden on the police during the investigation process68. Accordingly, the additional supplementary caution would not only add a greater burden on the investigation process, but may also potential breach the provisions regulating the detention of an accused for the purpose of question, thereby interfering with personal freedom and liberties which LEPRA intends to uphold through its application during the investigation process.

Deborah Rhode, and Ernest McFarland, Access to Justice (Oxford University Press, 1st Ed, 2004) 216 65 Ibid. 66 Law Enforcement (Powers and Responsibilities) Act 2002 (Cth) S114 67 Graham Robertson, Richard Pearson, and Robert Gibb, Police interviewing and the use of appropriate adults (1996) 7(2) The Journal of Forensic Psychiatry, 22 68 Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) s89A(2)(b)
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H. The failure of the English reforms The NSW Government has acknowledged the fact that it bases its reform on s 34 of the English Criminal Justice and Public Order Act69. However, the English legislation is generally viewed as unsuccessful and problematic. In 1999 Professor Diane Birch conducted a cost-benefit analysis of the English provisions, concluding that the demands on judge and jury of the complex edifice of statutory mechanisms are enormous in proportion to the evidential gains they permit70. In 2001 Professor Roger Leng stated that far from facilitating the exercise of common sense, the effect has been to introduce unnecessary complexity and to distort the process of fact-finding71. Finally, in 2005 the English Court of Appeal, noting the flood of appeals generated by the legislation, described it as a notorious minefield72. Consequently, the experience of the proposed amendment in England highlights the potential difficulty and strain it would place on the Australian legal system. Finally, while the government purports to base the amendment English equivalent of s89A, a number of provisions found in the English equivalent, most notably the requirement of the presence of a custody officer at police stations has been omitted from the proposed amendment. Such omission has grave consequence on the application of the changes, and accordingly, significantly differs to the English equivalent, which leads one to question why such a provision is necessary in the English legal system but not the Australia.

1994 DJ Birch, Suffering in Silence: A cost-benefit analysis of s34 of the Criminal Justice and Public Order Act 1994, [1999] Crim LR 769, 787. 71 R Leng, Silence pre-trial, reasonable expectations and the normative distortion of fact-finding (2001) 5 International Journal of Evidence & Proof 240, 241 72 Beckles [2005] 1 WLR 2829
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I. International Human Rights Obligations There has been significant debate as to whether the Bill breaches Australias human rights obligations under the International Covenant on Civil and Political Rights73. The amendment would derogate from article 14(2)74; the presumption of innocence75. The amendment is also inconsistent with the rights of an accused under article 14(3)(b) and (g)76; requiring an accused have adequate time and facilities for preparation of his defence and to communicate with counsel of his own choosing, subsequently providing that an accused shall not be compelled to testify against himself or to confess guilt77. Consequently, there is concern that the amendment would offend human rights obligations of which, Ausralia is signatory to, and thus, should reconsider Australias obligations under such covenants before passing the amendment. VI. CONCLUSION The proposed amendment to the Evidence Act78 appears to be a contentious topic, which elicits both positive and negative arguments as to its application, and effect on the Australian legal system and its citizens. While there exists valid reasons from both sides of the debate, nevertheless, the Bill requires further consideration if the amendment is to be successful in its function. Otherwise, there is no doubt that the bill would remove safeguards, which have been entrenched in Australia legal jurisprudence; making the legal system a safe and fair system of law enforcement in Australia.

Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 5 74 International Covenant on Civil and Political Rights, opened for signature 16 December 1954, 999 UNTS 3 (entered into force 23 March 1976) 75 Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 5 76 International Covenant on Civil and Political Rights, opened for signature 16 December 1954, 999 UNTS 3 (entered into force 23 March 1976) 77 Letter from The Law Society of New South Wales to The Honourable Paul Lynch MP, 8 October 2012, 5 78 1995
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Bibliography
Articles/ Books/ Reports Birch, DJ, Suffering in Silence: A cost-benefit analysis of s34 of the Criminal Justice and Public Order Act 1994, [1999] Crim LR 769, 787. Brown, D, PACE Ten Years on: A Review of the Research (Home Office, London, 1997) at 168-171 Davis, Michael Criminal Investigative analysis in the Australian Context (2006) InPsych Journal 33, 34 Fenner, Susanne, Gisli Gudjonsson, and Isabel Clare, Understanding of the current police caution (England and Wales) among suspects in police detention (2002) 12(2) Journal of Community & Applied Social Psychology 83-93 Griffiths-Baker, Janine, Serving Two Masters: Conflicts of interest in the modern law firm (Hart Publishing, 1st Ed, 2002), 325 International Covenant on Civil and Political Rights, opened for signature 16 December 1954, 999 UNTS 3 (entered into force 23 March 1976) Jackson, Silence and Proof: Extending the Boundaries of Criminal Proceedings in the United Kingdom (2001) 5 International Journal of Evidence & Proof 145, 172. Harvey, D, The Right to Silence and the Presumption of Innocence [1995] New Zealand Law Journal 181 at 186 Leng, R, Silence pre-trial, reasonable expectations and the normative distortion of fact-finding (2001) 5 International Journal of Evidence & Proof 240, 241 Letter from The Law Society of New South Wales to The Honorable Paul Lynch MP, 8 October 2012, 2 Lord, Vivian, and Allen Cowan, Interviewing in Criminal Justice: Victims, Witnesses, Clients, and Suspects (Jones & Bartlett Publishers, 1st Ed, 2011) 229 Patty, Anna, Right to Silence law changed, Sydney Morning Herald (Sydney), 14th August 2012, 22 Rhode, Deborah, and Ernest McFarland, Access to Justice (Oxford University Press, 1st Ed, 2004) 216 Robertson, Graham, Richard Pearson, and Robert Gibb, Police interviewing and the use of appropriate adults (1996) 7(2) The Journal of Forensic Psychiatry, 22 Siegel, Jerry, Introduction to Criminal Justice (Wardworth Cengage Learning, 12th Ed, 2009) 457 14

Case Law Adetoro v UK [2010] ECHR 609 Azzopardi v The Queen (2001) 205 CLR 50 Beckles [2005] 1 WLR 2829 Carr v R [1988] HCA 47; (1988) 165 CLR 314 Davis v The Queen (2001) 205 CLR 50 DPP v Carr [2002] NSWCR 194 Duke v R [1972] S.C.R 917 Murray v UK (1996) 22 EHRR 29 Petty and Maiden (1991) 173 CLR 95 R v Kops (1893) 14 LR (NSW) 150

Legislation Accused Persons Evidence Act 1898 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (Cth) Evidence Amendment Act 1891 (NSW) Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (Cth) Oaths Act 1900 (NSW)

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