The Right to Silence – Is this the beginning of the end for a fundamental right?

Posted on September 1st, 2013

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by Ashleigh John

Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

New legislation has recently come into effect in New South Wales which is set to change a fundamental right of all citizens – the right to silence. 

Until recently, a person charged with an offence could choose not to answer questions posed by an investigating officer, and their silence could not be construed as guilt, or any adverse inference drawn by a judge / jury as a result of their silence, because the right to silence is an important part of the presumption of innocence.

The changes, which came into effect on 1 September 2013, allow a jury and/or a judge to make an adverse inference where a defendant who is being tried for a serious offence does not mention a fact to the investigating officer which in the circumstances they could have reasonably been expected to mention at the time of being questioned, and which they then seek to rely on in their defence at trial.

However, the opportunity to draw the adverse inference only applies if:-

  • A “special caution” was given by the investigating officer;
  • The special caution was given before the failure or refusal to mention the fact;
  • The special caution was given in the presence of a solicitor who was acting for the defendant; and
  • The defendant had been given a reasonable opportunity to consult with their solicitor (without the investigator being present) about the nature and effect of the special caution.

Further, it does not apply if the defendant is under 18, or is incapable of understanding the nature and effect of the special caution.

The changes only apply to offences which are known as serious indictable offences which include offences attracting a life prison sentence and certain offences which attract a jail term of 5 years or more.  Examples of serious indictable offences are: murder, sexual assault and dangerous driving occasioning death.

Ashleigh John is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Ashleigh John to arrange a consultation or contact our Newcastle office.

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