Proposed abolition of right to silence in NSW will allow police abuse

19th Sep 2012

The right of individuals to remain silent when being interrogated by police is a fundamental human right reflected in the International Covenant on Civil and Political Rights, and in Canadian and US human rights laws and for New South Wales Attorney-General Greg Smith to give the community only 10 days to comment on his proposal to dismantle that right is appalling, said the Australian Lawyers Alliance today.

Australian Lawyers Alliance Director and criminal barrister, Greg Barns, said that if Mr Smith’s proposal becomes law it will lead to an increase in police abusing suspects.

“The right to silence is sacrosanct. It is not up to an accused person to prove their innocence. The onus of proof from the moment a person is accused to the moment the jury goes out to deliberate, rests with the state,” Mr Barns said.

“There may be a whole range of reasons why a person chooses to remain silent when being interviewed by police. For example, if the case is complicated, they may want to meet with a lawyer for more than a few minutes in a police cell before saying anything. They should not be penalised for doing this,” Mr Barns said.

“Removing this right takes NSW back to the bad old days of telephone book interrogations; along with other rudimentary methods of physical and psychological abuse to extract statements. Such methods undoubtedly expedited the closing of police files, but did not result in the dispensing of justice.

"People who are arrested are sometimes in a state of shock or have a jumbled recollection of events – police will now be able to force people in these vulnerable situations to make damaging statements even though it is clearly not fair that they should do so."

Mr Barns said removing the right to silence would also allow police to threaten an accused person that failing to make an early police statement increases the risk of conviction.

Further, while one of the requirements is that a person is afforded the opportunity to seek legal advice before they speak to police, what if that person’s lawyer is not available or it is 3am and there is no lawyer available for that person. One can imagine police pressuring a person to talk in those circumstances, telling them the alternative is that they can sit in the cells for a number of hours until a lawyer is available.

Premier Barry O’Farrell announced plans in August to rein in a right that all New South Welshman enjoy because he felt it was being abused by criminal gangs, but scant information has since been provided on the bill that was announced yesterday.

“Under such legislation, the Minister will not need to review the law for five years, despite it being controversial and potentially causing real damage to the rights of individuals to protect themselves or loved ones from recrimination,” Mr Barns said.

“The right to silence protects from incrimination, from being compelled to give evidence and to answer questions during trial. It also prevents adverse comments being made by a judge or witness as part of such an evoked right.”

Tags: Human rights NSW Access to justice police powers