Fundamental Right ABOLISHED by the NSW Government

You’re right to silence is gone. This from the Sydney Morning Herald:

“The right to silence will be watered down under changes announced today by the O’Farrell government as part of its response to bikie gang violence. People will be warned that they may risk harming their defence in court if they refuse to give police information about a crime under proposed new laws. It’s been too easy to say: ‘I have nothing to say’. Jurors are smart enough to know if there is something suspicious about evidence which suddenly appears at a trial and is designed to get the accused off.
The caution police now give is: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”
This will be changed to:
“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. Anything you do say and do may be given in evidence. Do you understand?”
No doubt the infirm, the mentally unwell, children and persons who are in a state of shock or otherwise disadvantaged will be able to fully understand a caution such as this. And in NSW where you have no right to have a lawyer appointed to represent you (you better hope you can afford one), you’re effectively on your own.

This is a disgraceful and shameful attack on the rights of private citizens. Now you MUST talk to Police otherwise a jury might think you made something up when you try to explain yourself to them. While this may be couched in the language of euphoric common sense espoused by the usually sensible Attorney General be under no mistake – this will force the hand of everyone – speak now or forever hold your piece.

This puts the Police in the role of the jury and its a disgrace. Explain yourself to us or we will charge you. Of course, many of us practising in criminal defence can readily recall stories where Police have offered precisely that approach to a “witness” who ends up being charged and having those very same words used against them. An opportunity to explain your side of the story is rarely that – its usually the first version you will try to give to explain yourself against charges.

This is a dreadful change in the law, bringing it into the same area of law as England where this has been the case for some time.

Silence is golden, for a simple reason – commenting on questions put by Police in circumstances where they do not tell you all the relevant details, is like yelling into the dark- could be harmless, could be dangerous. Saying something innocently may be interpreted very differently by those with all the facts (the Police). 
The day this is formalized as law will be a dreadful day for the law. Dreadful day for anyone who comes into contact with Police.

This is more power for the Police – At least every other time the Police have been given a new thing to play with, they have been entirely reliable and sensible with it – take tazers as an example.

More here.


Aaron Kernaghan.