find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
View details
Remaining silent could lead straight to jail

Remaining silent could lead straight to jail

Plans by the Police Association of NSW (PANSW) to campaign for changes to an accused person's right to remain silent will reverse the onus of proof in criminal proceedings, says a civil…

Plans by the Police Association of NSW (PANSW) to campaign for changes to an accused person's right to remain silent will reverse the onus of proof in criminal proceedings, says a civil liberties expert.

Associate professor Michael Head, from the University of Western Sydney, said plans by PANSW to push for laws which will allow a jury to draw a negative inference should an accused person choose to remain silent are a move towards arbitrary state and police power and a move away from the notion of innocent until proven guilty.

"I am completely opposed to it," Head told Lawyers Weekly.

"This is about the power of the state over the individual ... It changes the whole balance of power. It makes the powers of the state and the police forces that much greater."

According to Head, any such changes would effectively reverse the onus of proof.

"Essentially, that's what it means. In that way, the accused is obliged to prove their innocence, rather than the other way around," he said.

PANSW announced it would be campaigning for the changes ahead of next March's state election due to the perception that professional criminals are increasingly exploiting the right to silence in NSW, thus making it harder for police to obtain convictions.

Speaking to Lawyers Weekly, PANSW president Scott Weber disputed Head's claims that the onus of proof would be reversed.

"It is patently ridiculous and a misrepresentation of the proposal to suggest that this minor change has any impact whatsoever on the onus of proof," he said.

"The onus still rests with the prosecution to prove its case and the more fundamental principle of innocence until proven guilty is unaltered."

Weber also said changes to the right to silence would make it harder for seasoned criminals to dodge the law, while still protecting innocent people.

"The British Parliament changed the application of the right to silence over 15 years ago to combat the growing misuse of this right, and to deal with the rise of organised crime and terrorism ... The British model still gives people the right to stay silent, but allows for courts to draw an inference of guilt from a person's silence in certain situations," he said in a statement released last week.

For example, Weber said inferences of guilt could be drawn if an accused person unreasonably failed to explain a significant fact in their interview with police, but then later relied on that information as a defence in their trial.

But criminal lawyer and director at Webb & Boland Lawyers Brendan Moylan has questioned the need for such changes.

"If the police are doing their job properly and are investigating each matter thoroughly, then they shouldn't require the availability of an inference of guilt to be drawn from an accused person exercising their right to silence," he told Lawyers Weekly.

Weber responded by saying that the law, as it stands, inhibits the ability of police to properly investigate matters where criminals are able to hide behind the right to silence.

"The purpose of the law should be to protect the community, not to protect criminals. The current laws in fact hamstring police from doing a thorough investigation in circumstances where the accused refuses to reveal evidence they subsequently seek to rely on in court," said Weber.

"This proposed change is not simply about changing the way police do their job - it is about improving the judicial process by providing the court with evidence that has been properly investigated."

The right to silence has existed in NSW for around 120 years, since the Criminal Law and Evidence Amendment Act 1891 came into force, and Moylan said he would be concerned about several factors should the changes be made to a law which has been in place for so long.

"I actually think [the changes] would increase the standard length of hearings and trials, as the defence in a case, when the defendant has remained silent, would want to explain to the court or jury the reasons as to why the defendant remained silent," he explained.

"This would send the trial into a periphery area and, in my opinion, the courts are busy enough without having emphasis placed on periphery matters."

Moylan also said the right for a jury to draw a negative inference from an accused's silence would disadvantage accused persons who harbor a genuine fear and distrust of the police.

"Put simply, I think any deterioration of an accused's right to silence is worrying and should be avoided," he said.

"In my experience, an accused person may ... distrust the police, fearing that the police officers will trick [them] into answering questions and may distort their answers. As such, accused persons are almost always very, very nervous when they give an interview, which then obviously affects both their demeanour during the interview and subsequently their answers - whether they are guilty or not."

Claire Chaffey

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Remaining silent could lead straight to jail
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...