“You have the right to remain silent!”
A line you will have heard plenty if you’re a fan of US cop shows – the right to remain silent applies in NSW as well as in the US. But there are instances where you may ‘lose’ this right.
The Right to Silence – Section 89 Evidence Act
In NSW, the right to remain silent (and not have your silence used against you) is protected by section 89(1) of the Evidence Act:
| (1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused–
(a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. |
In plain terms, the section essentially prevents unfavourable conclusions (such as guilt) being drawn against the defendant simply because they did not respond to a question asked by the police. However, there are certain situations where refusal to answer a question posed by the police could be used against a person, one of which is outlined below.
Section 89A Evidence Act & Special Cautions
You’ll notice that section 89 begins with the words “Subject to section 89A…”. On 13 March 2013, s 89 of the Evidence Act was controversially amended and section 89A was added. Section 89A introduced what is described as a ‘special caution’ which essentially operates to exclude the operation of section 89 and remove a defendant’s right to silence in certain strict circumstances. Under section 89A, a defendant may have their silence used against them if all five of the following requirements are met:
- They are given a special caution by an investigating official (often a police officer);
- The police officer, at the time of giving the special caution, had reasonable cause to suspect that the defendant had committed a crime punishable by 5+years imprisonment;
- The special caution was given before they defendant refused to answer;
- The special caution was given in the presence of a lawyer who was acting for the defendant at that time; and
- The defendant had been allowed a reasonable opportunity to consult with their lawyer in the absence of the police officer about special cautions.
If all of the above conditions are satisfied, a defendant may have their silence used to draw an unfavourable conclusion in criminal proceedings.
The section then goes on to outline a few more details regarding the application of section 89A.
The Effect
Despite the heavy criticism at the time, the Government contended that the amendment was to prevent lawyers from exploiting the right to silence and assist police in “getting to the truth”. Instead, the effect of this amendment is now that lawyers will often advise against attending a police station with their client to stop a situation arising where their client receives a special caution.
Rather than give ‘justice to the innocent’, section 89A has prevented those charged with (not found guilty of) a serious offence from receiving proper legal advice and representation at an especially vulnerable point of their matter.
Should you or someone you know be charged by police, it is essential that you receive legal advice from an experienced lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
