The NSW government plans to abolish one of the oldest principles of the legal system: the right of an accused person to remain silent under questioning by police.

Under the proposed changes, the refusal to answer questions could harm a person’s defence in a later court case.

The change has been sold as a win for victims. In reality, the change will put at risk the presumption of innocence.

See David’s comment on the issue on ABC News 14 August 2012.

The article below was originally published in The Australian on 14 August 2012. You can find it online here.

Mooted change to law condemned, praised

A NSW plan to change the “right to silence” laws has won police approval but has been condemned as an attack on fundamental rights by legal experts.

NSW Premier Barry O’Farrell on Tuesday flagged legislative changes that would allow judges and juries to take a negative view of people who exercise their right to remain silent.

Under draft legislation to be finalised by the end of the month, the “right to silence” caution given by police would include the proviso that not saying anything “may harm your defence”.
The police union and the state’s top cop have welcomed the reforms, but the Greens, civil rights advocates and lawyers have condemned them as an attack on centuries-old rights.

Mr O’Farrell said criminals were exploiting the current law.

“For too long it’s been too easy for criminals to hide behind the right to silence,” he told reporters in Sydney on Tuesday.

“We’re going to amend the law to enable juries and judges to take an adverse inference from an accused person who refused to divulge facts to police, but then later produces so-called evidence in order to provide an excuse.”

Similar changes were introduced in the UK in 1994.
NSW Police Commissioner Andrew Scipione said local police had been clamouring for changes for years.

“The UK model has led to, amongst other things, a decrease in the number of suspects that are actually remaining silent when they are questioned by police,” Mr Scipione said.

“This has got to be a good thing for victims in this state. That has to help police.”

The NSW Police Association (NSWPA) said the proposed changes were long overdue, describing them as a “win for commonsense”.

“The changes will help make sure that criminals face the punishment they deserve and are not let off simply because they refuse to talk,” NSWPA president Scott Weber said in a statement.
The Law Society of NSW however expressed concerns, with president Justin Dowd describing the changes as “an attack on fundamental rights”.

“It is an essential tenet of the criminal justice system that the prosecution has to prove its case beyond reasonable doubt,” Mr Dowd said in a statement.

“It is not the responsibility of the accused to prove his or her innocence.”

He said references to UK law did not take into account additional protections for people accused of a crime that did not exist in NSW.

“In the UK, a government-funded duty solicitor scheme is provided to assist an accused person when taken into custody,” Mr Dowd said.

“This balance does not exist in NSW and would require a significant increase in Legal Aid funding.”
Greens MP David Shoebridge accused the government of  “trashing a 400-year-old right to silence”.
“The reason the right to silence has stood so long is because it protects individuals from the heavy-handed use of police powers,” Mr Shoebridge said in a statement.

“You don’t institute fundamental law reform that applies to everyone to deal with only a limited number of hardened criminals.”