Controversial legal changes in New South Wales watering down a suspect’s “right to silence” – billed at the time as necessary to combat drive-by shootings – have never been used by prosecutors in the two years since they passed, the office of the director of public prosecutions (DPP) has revealed.
The 2013 changes, allowing juries to draw an adverse finding if a defendant withholds information from police they later rely on during trial, was an “attack on fundamental rights” and should be rolled back, the president of the NSW Law Society, John Eades, said.
“It is an essential tenet of the criminal justice system that the prosecution has to prove its case beyond reasonable doubt. It is not the responsibility of the accused to prove his or her innocence,” he said.
“The amendment is clearly unfair and unworkable and the NSW government should now consider its removal.”
The DPP said on Sunday it was not aware of any trial since the laws came into effect in September 2013 where a jury had drawn a negative inference because a defendant exercised their right to silence.
Under the altered system, suspects are given the traditional caution that they are not obliged to do or saying anything, but told: “It may harm your defence if you do not mention when questioned something you later rely on it court.
A safeguard that the new warning could only be given in the presence of a defendant’s lawyer had led some legal practitioners to avoid attending police interviews with their clients.
The Law Society itself has advised its members “to consider whether it is in their client’s best interests to be physically present at the police station”.
Eades said the state’s law reform commission had found in a 2000 report there was no evidence “the right to silence is widely exploited by guilty suspects, as distinct from innocent ones, or ... that it impedes the prosecution or conviction of offenders”.
People refused to speak with arresting police for many reasons, he said. “They may be in shock or confused by the allegations, affected by drugs or alcohol, inarticulate or have poor English. It is invalid to assume that only a guilty person has a reason to remain silent when questioned by police.”
A spokesman for the NSW attorney general, Gabrielle Upton, said: “The government currently has no plans to amend the law.”
