Right to Silence in Australia; New Limits

Harriet Alexander, Right to Silence reforms based on out-of-context British law Sydney Morning Herald (April 8, 2013):
"As the [New South Wales] government overturned one of the most tightly held principles of criminal law - the right to silence - it brandished two arguments in support.

"First, abolishing the right to silence had the support of the police. Second, it was far from the revolutionary move its critics claimed. Britain enacted the same legislation nearly 20 years ago.

"The ''evidence of silence'' laws passed last month were designed to make trials more efficient and stop the defence from springing surprises on the prosecution.

"They require the defence and prosecution to outline the key aspects of their cases weeks before trial, and allow the jury to draw an unfavourable inference if an unexpected defence is raised at trial.

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"They also abolish the right to silence, so juries will be able to draw adverse conclusions if accused people choose not to participate in police interviews, but later rely on evidence that they could have brought up in the first place.

"But Britain's Justice and Public Order Act 1994, on which they were modelled, was formulated in an entirely different context.

"In Britain, duty solicitors are stationed at police stations 24 hours, and one of their roles is to advise the accused on the implications of remaining silent.

"In [New South Wales], there is no funding to place a duty solicitor in every police station around the clock, although the law will still only apply to people who have been cautioned in the presence of a lawyer.

"President of the NSW Bar Association Phillip Boulten also warns that while in Britain there is a culture of continuous disclosure, that does not exist in Australia."

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