Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 11/1997 by Gareth Griffith
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This paper presents an overview of the debate concerning the right to silence,
taking as its focus the right to pre-trial silence in the face of police
questioning. Its main findings are as follows:
- on 28 May 1997 the NSW Police Commissioner, Mr Peter Ryan, is reported to
have set out a blueprint for major change in NSW's justice system', which
included examination of the right of silence for the accused (page 5);
- on 25 June 1997 the Attorney General said that he had decided to refer the
wider issue of disclosure' of a defence relied on by the accused to the NSWLRC
under the general heading of a review of the right to silence (page 5);
- no major empirical studies of the right to silence have been undertaken in
Australia (page 6);
- the right to silence operates in at least two distinct contexts, that is,
at the police station and in the courtroom. Thus, there is silence before trial
in the face of police questioning, as well as silence at trial under which an
accused person cannot be compelled to plead or to give evidence (page 9);
- the right to pre-trial silence involves a primary right, which states that
there is no legal obligation on citizens to talk to the police, as well as an
incidental or secondary right, prohibiting the drawing of any adverse inference
at trial from the exercise of silence. In this secondary sense the right
extends to the situation where the accused had silence remained silent before
the trial and later raised a defence for the first time at the trial (the
ambush defence) (page 10);
- in the leading High Court case of Petty (1991) 173 CLR 95 the above right,
both in its primary and secondary forms, was said to be a fundamental rule of
the common law' (page 10);
- section 89 of the NSW Evidence Act 1995 substantially reflects the common
law position. The section refers to the silence of a person (who becomes a
defendant in criminal proceedings) in response to official questioning' (page
11);
- in England and Wales the right to silence (both pre-trial and at trial) has
been curtailed under the Criminal Justice and Public Order Act 1994 (pages 22);
crucial to the debate in England and Wales was the perception in some quarters
of the changing balance between police powers and the rights of suspects as
this operates under the Police and Criminal Evidence Act 1984. The Act
incorporates a right to free legal advice (page 20); a new caution has been
introduced in England and Wales which reflects the position that adverse
inferences may now be drawn from silence (page 23);
- the key substantive issues in the debate include whether: pre-trial silence
is an indication of guilt?; would altering the pre-trial right to silence place
innocent suspects at greater risk of wrongful conviction?; and, conversely,
would altering the right lead to the proper conviction of more guilty
offenders? (page 26);
- empirical research on the right to silence is characterised by certain
definitional and methodological problems (page 17 and page 28); as a result
studies from England have produced widely varying estimates of the use by
suspects of the right to pre-trial silence, ranging in one estimate from
between 5% and 23 % and in another from 6% to 22% (page 29); several studies
have suggested that there is an association between receipt of legal advice and
the exercise of the right to silence (page 32); one study at least has
suggested that professional criminals use the right to silence more than other
suspects (page 33); however, there does not appear to be any conclusive
evidence suggesting that those exercising their right to pre-trial silence gain
a clear advantage in terms of the outcome of their case (page 34); Leng's study
of the use of ambush defences found that the concerns in this regard are
largely unfounded (page 35);
- arguments in favour of retaining the right to pre-trial silence can be
categorised under the headings of symbolic retentionism' and instrumental
retentionism'. A key argument of the latter is that the case for reform is not
supported by empirical evidence (pages 35-39); arguments in favour of
curtailing the right can be categorised under the headings of utilitarian
abolitionism' and exchange abolitionism'. The former maintains that the right
is used by professional criminals to avoid justice; whereas the latter focuses
on exchanging the right to silence, which it sees as a largely illusory right,
for real protections and safeguards for suspects (pages 39-43);and
- except in relation to alibis, at present in NSW there are no statutory
requirements of advance notification of defences (page 43).
