Evidence of silence amendment – Evidence Amendment (Evidence of Silence) Bill 2013 27 March 2013
Evidence of silence amendment - Evidence Amendment (Evidence of Silence) Bill 2013
The New South Wales Government introduced the Evidence Amendment (Evidence of Silence) Bill 2013 (‘Evidence of Silence amendment’) which passed both houses of parliament on 20 March 2013. It is currently awaiting proclamation.
What is the amendment?
The Evidence of Silence amendment allows an unfavourable inference (impression of guilt or lack of credibility) to be drawn by a jury or judge against certain accused persons if they refuse to cooperate with the police during official questioning, and they later rely on facts in court that they could reasonably have mentioned during questioning.
Who does it apply to?
This amendment applies to those involved in criminal proceedings for a serious indictable offence (an offence punishable by five years imprisonment or more).
It does not apply to people who are under 18 years of age, people who have a mental impairment, or people who are incapable of understanding the consequences of remaining silent.
How does the amendment work?
Those accused of a serious indictable offence must be given a special caution prior to questioning. This special caution must be given in the physical presence of the accused’s lawyer, and they must be allowed to discuss in private the effect of the special caution.
After receiving advice regarding the special caution from their lawyer, under this amendment, if the accused fails to mention or disclose certain facts during questioning that they later rely on at trial, and it is something they could reasonably have been expected to mention, then an unfavourable inference can be drawn against the accused at trial.
The accused cannot rely on the absence of a particular question being asked during questioning to excuse the failure to mention a fact or information.
However, an unfavourable inference cannot be drawn by the jury or judge if there is no other evidence of the accused or defendant being guilty of the serious indictable offence except for evidence of a failure or refusal to mention a fact.
What is a ‘special caution’?
The special caution is a caution or warning that explains the consequences of remaining silent or not mentioning a fact during questioning that the accused later relies on their defence at trial. It must be given prior to questioning or a police interview by an investigating official (police officer, detective or law enforcement official) who has reasonable cause to suspect that the person has committed a serious indictable offence.
However, the special caution can be given after or in conjunction with the standard caution. A standard caution is a warning that must be given by law to a person before they are questioned, otherwise any evidence gained during questioning cannot be relied upon.
As mentioned previously, the special caution must also be given in the presence of the Australian legal practitioner who is acting for the defendant at the time. Therefore, if the special caution is to be given in conjunction with the standard caution, then the legal practitioner needs to be present when the caution is given. The accused and their legal representative must then be allowed a reasonable opportunity to discuss the general nature and effect of the special caution.
What are some of the implications of this amendment?
The obvious implication is that the Evidence of Silence amendment places pressure on individuals to talk to investigating law enforcement officials which, as some civil libertarians would argue, erodes the fundamental principle of presumption of innocence.
Another major implication is that it makes the investigation process and procedure more complex for both law enforcement officials and legal representatives. For example, one consideration is how the condition of being involved in a ‘serious indictable offence’ would be applied – how would the accused or person about to be questioned by police would know that he or she is involved in a ‘serious indictable offence’? Are such individuals obligated to answer all questions without knowing whether they are going to be charged with a ‘serious indictable offence’?
In regards to the special caution that must be given, the amendment places further demands on law enforcement officials, and emphasis on their investigative practices and procedures. One legal issue that law enforcement officials have to consider is when or whether to give the special caution. This is because if the individual is warned of the possibility of an adverse inference from silence at trial where there actually was no such possibility, the evidence obtained may be excluded on the basis that it was improperly obtained or that the individual was misled.
As such, the amendment could potentially increase trial lengths or add another level of complexity to proceedings. Ultimately, individuals must consult with a legal professional in order to navigate through the now even more complex nature of criminal proceedings.
If you have any enquiries or wish to receive further information, please contact:
Wentworth Lawyers & Partners
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Disclaimer: This publication is intended only to provide a summary of the subject matter covered. It is not intended to be comprehensive or to provide legal advice. Consult a legal professional.