Right to silence to be eroded in New South Wales

In criminal investigations it’s said that ‘no man is bound to accuse himself.’ And although that’s still technically true the big legal idea that this phrase tries to capture will be significantly eroded in the state of New South Wales if the government has its way.

The NSW premier has signalled changes which would mean that juries and judges could draw an adverse inference from an accused’s exercise of their right to silence.

It’s fair to say the right will be gutted. What’s the point of a right to silence if your exercise of it can be painted in a bad light?

One can just imagine NSW public prosecutors licking their lips at the prospect of being able to make a big deal out of a defendant’s silence. In some cases this will make their job a hell of a lot easier.

Premier O’Farrell’s justification is that the right to silence in its current form is too easily exploited.

We don’t see it. Judges already have the power to instruct juries to draw an adverse inference when an alleged criminal fails to assist police with their investigation. Surely this is enough.

Before formal interviews with the police an accused must be told of their right to silence. This is fair enough. Most people are understandably shaken up upon being arrested and the right to silence provides an opportunity to gather one’s thoughts and call a lawyer. But the new caution, including the words ‘it may harm your defence,’ appears to be designed to illicit an immediate – and likely panicked – response to police.

It’s concerning that NSW wishes to join with other governments around the world that are slowly eroding basic rule of law principles. The right to silence is central to the idea of a fair trial. Weakening it in the way proposed by the NSW government would be extremely heavy-handed, and a clear step in the wrong direction for liberty.


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