By Yavin Kumar @ Sydney Criminal Defence Lawyers

If a person has reasonable grounds to believe that they are suspected of being a party to an offence, he or she is entitled to remain silent if questioned to give information to law enforcement authorities regarding the offence. Many members of the community see the right to silence as a fundamental legal right when being interviewed or questioned by the police.

Prior to 2013, the law on the right to silence literally gave a suspect the right to remain silent – not to say anything, give information or answer any questions asked by a law enforcement officer. Even if the police asked a question, there was no obligation from a suspect’s part to provide an answer, and this omission could not be used by the police in determining guilt or prove that you did do something wrong.

The rule of law states that the role of the prosecution is to prove your guilt beyond reasonable doubt; you do not need to show the Court that you are innocent. This principle is reflected under section 89 of the Evidence Act 1995 (NSW), which highlights that an unfavourable inference cannot be drawn by a person who refuses to answer a question or respond to a representation. However, the Evidence Amendment (Evidence of Silence) Act 2013 (NSW), which amended the Evidence Act 1995 (NSW), modified the right to silence as we generally know it. Under section 89A of the Evidence Act, in a criminal proceeding for a serious indictable offence, unfavourable inferences can be drawn from a suspect who fails or refuses to mention a fact:

1. That the suspect could reasonably have mentioned when initially questioned by law enforcement under the circumstances at the time; or
2. That is relied on his or defence in those proceedings.

Through this, in the context of being interviewed at a police station, the caution that would otherwise be given to a suspect, namely that “you have the right to remain silent – anything you do say may be used as evidence against you” has now changed to the point that “it may harm your defence if you fail to mention something now which you later rely on in court”. If you decide to introduce new information for the first time at a later date (during court proceedings), the court may ask why such evidence was not mentioned when you were questioned by the police.

Conversely, the police must give you a special caution (as stated above), and your lawyer must be present in the room when the special caution is given. In many instances, lawyers refuse to attend police stations in these situations as it is sometimes in the better interests of their clients if they do not attend, and the suspect will be able to utilise their right to silence as normal.

The reforms have greatly diminished the core meaning of the right to silence, and the Government claims that doing so is required to “break the wall of silence” and increase the rates of conviction for offences, instead of letting offenders get away with the crimes they commit.

The most significant exception to the right to silence arises in instances when a police officer requests for some form of identification from any person. Police officers have a right to demand identification, which can include having a look at your driver’s licence or photo card or asking for your full name and date of birth. In many circumstances, failing to comply with a police officer’s request for your identification is an offence, so it is always best to comply with the directions of an officer if you are ever asked.

Similarly, an obligation arises for a person to disclose the identity details of a driver and any other passengers in a vehicle that has been involved in a serious crime. Failing to do so can make law enforcement authorities believe that you are a suspect in that crime, especially if you meet the description of one of the offenders in question. Alternatively, you could also be charged as an accessory to the crime, which can bear many heavy penalties including imprisonment.

The right to silence remains to be a fundamental civil liberty that all individuals have and are rightfully entitled to utilise when questioned by law enforcement authorities. However, the reforms to this right have made it harder to use in serious indictable matters, making it easier to convict suspects for various offences.

Are these reforms a positive change that work in the best interests of the community, or has the Government created a policy that oppress the civil freedoms of the citizens of New South Wales?

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