The Evidence Amendment (Evidence of Silence) Act 2013 changed the law so that a negative inference could be drawn if a person refuses to mention facts to police during questioning, which they later rely on at trial.
The amendment to the Evidence Act 1995 (NSW) was intended to break the ‘criminal’s code of silence’, which was hampering investigations of drive-by shootings.
However, there is a loophole; a lawyer must be present for the new law to apply. By not showing up to represent clients at police stations, silence cannot be held against the interviewee.
The chair of the Law Society's criminal law committee, Pauline Wright, said lawyers would be “negligent” if they turned up at the police station to represent their client under these laws.
“If you go along to the police station with your client, you are putting your client at risk of saying something stupid or ill-informed and possibly harming their defence – what lawyer would take that risk?,” she told The Sydney Morning Herald.
“We are helping by not turning up and that's unfortunate. We would prefer to see the laws go back to the way they were. It worked better for the police as well as for justice."
Law Society of NSW president John Eades said the new provisions have never been used in a NSW prosecution and should be removed.
“The Law Society is strongly opposed the O'Farrell government's modification of the right to remain silent,” Mr Eades said.
He explained that there could be many reasons for people to remain silent following an arrest.
“They may be in shock or confused by the allegations, affected by drugs or alcohol, inarticulate or have poor English,” he said. “It is not valid to assume that only a guilty person has a reason to remain silent when questioned by police.”
The Police Association of NSW's president, Scott Weber, said police investigations are taking longer because of the lack of cooperation from lawyers.
Laws went ahead despite expert advice
David Hamer, an associate professor at the University of Sydney, told Lawyers Weekly that the government was made aware of all of the potential problems in advance but it "passed the legislation anyway".
“The NSW Government passed very ill-considered legislation against the advice of virtually all experts and professional bodies,” he said.
“The only explanation can be that the Government saw some political advantage in passing bad legislation – appearing tough on crime, and doing a favour to the NSW police force.”
Britain introduced similar laws in in 1994 but, unlike Australia, provided funding for on-call duty lawyers at police stations, which would allow police to read out special cautions. When the laws were enacted in NSW, no such funding was made available.
Dr Hamer said the English legislation has “widely been viewed as a failure – creating far more complexity than it is worth”.
A report by the NSW Law Reform Commission in 2000 also recommended that the British right to silence laws be rejected.
“[The] commission concluded that the evidence does not support the argument that the right to silence is widely exploited by guilty suspects, as distinct from innocent ones, or the argument that it impedes the prosecution or conviction of offenders,” Mr Eades said.
“The amendment is clearly unfair and unworkable and NSW Government should now consider its removal,” he added.
Dr Hamer agreed, saying that these “highly regrettable” laws have put lawyers in a “difficult position”.
“It is not at all clear there was a problem calling for the passage of this legislation in the first place,” he said.
“There is not generally a 'wall of silence'. Most defendants don't exercise the right to silence, and, of course, the legislation fails to provide any incentive for other witnesses to talk to the police. The legislation was clearly an exercise in politics, not policy or sensible criminal law reform.”