THE foundations of criminal justice – the right to remain silent and the presumption of innocence – are under threat in NSW from proposed new laws, legal experts have warned.
The O’Farrell government said yesterday it would water down the right to remain silent in response to bikie gang violence.
”For too long it has been too easy for criminals to hide behind rights to silence,” the Premier, Barry O’Farrell, said. ”We are going to amend the law to allow juries and judges to take an adverse inference from an accused person who refuses to divulge facts to police but then later produces so-called evidence in order to provide an excuse.”
Under laws to be introduced in October, people will be warned they may risk harming their defence in court if they remain silent under police questioning.
Police will say: ”You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court.”
Mr O’Farrell said the NSW laws would mirror those introduced in Britain in 1994.
But unlike that system, the NSW government will not provide a duty solicitor in every police station to provide free legal advice.
The president of the Law Society of NSW, Justin Dowd, said he was ”seriously concerned” about the changes. ”The right to remain silent … is a cornerstone of our justice system,” he said. ”The NSW Law Reform Commission considered this issue in 2000 and recommended against modifying the right to remain silent.”
The vice-president of the Bar Association, Phillip Boulten, said the changes were ”a back-door way of changing the onus and standard of proof which has for centuries been on the Crown to prove its case beyond reasonable doubt”.
The Attorney-General, Greg Smith, said while the right to silence was an important legal principle, it was easily exploited.
He said it would be up to juries to determine whether or not someone was lying during police questioning if they later revealed new evidence in the witness box.
”Juries are smart enough to be able to apply commonsense if it’s clear someone has been wrongly accused of a crime,” he said.
The NSW Police Commissioner, Andrew Scipione, and the Police Minister, Mike Gallacher, said they welcomed the change because the right to silence could impede police investigations.
The Police Association of NSW described the change as a ”win for commonsense”.
Its president, Scott Weber, said: ”The changes will help make sure that criminals face the punishment they deserve and are not let off simply because they refuse to talk.”
But the secretary for the NSW Council for Civil Liberties, Stephen Blanks, said the right to remain silent and privilege against self-incrimination were globally recognised as being at the heart of fair procedure. ”The UK has human rights safeguards which are not part of the law in NSW or Australia,” he said.
The Greens MP David Shoebridge said the government was ”trashing” the right to silence ”to get a headline”.
Mr Shoebridge said the right to silence ”protects individuals from the heavy-handed use of police powers”.