Silence Matters: A survey of the right to silence in the summary jurisdiction of New South Wales
| Author | Eugene Schofield-Georgeson |
| Published date | 01 April 2020 |
| Date | 01 April 2020 |
| DOI | http://doi.org/10.1177/1365712719887409 |
| Subject Matter | Articles |
Article
Silence Matters: A survey
of the right to silence
in the summary jurisdiction
of New South Wales
Eugene Schofield-Georgeson
University of Technology Sydney, Ultimo, Australia
Abstract
There is a scant existing literature on the relationship between the right to silence and its
effect on convictions in Australia and comparable jurisdictions. Existing research has
downplayed its significance in the face of various ‘law and order’ interventions seeking to
limit its operation. This study is one of the largest of its kind, surveying over 1,000 charges
to empirically assess the frequency of use and the effects of silence rights (the right to
silence, privilege against self-incrimination and burden of proof) on conviction, in relation
to a particular set of charges laid against a specific group of marginalised defendants in the
Local Court summary jurisdiction of NSW. Adding to the existing literature, this study
shows empirically how silence rights operate within an Australian summary jurisdiction for
a specific group of criminal defendants who are significantly socially marginalised. In the
process, it demonstrates that the use of silence rights is significant for this group, mostly
in non-regulatory criminal matters. In this respect, silence rights can be understood to
correlate with rates of conviction, mitigation of criminal sentencing and the practice of
charge-bargaining.
Keywords
Conviction, marginalised defendants, right to silence, silence rights, survey
Introduction and background
‘The right to silence’, according to the Australian High Court, ‘is that right which provides the funda-
mental bases for the common law rules governing the admissibility and reception of confessional
evidence’ (Aronson and Hunter, 1995: 326). These common law and, in NSW, statutory rules surround-
ing confessional evidence are sometimes said to contain a set of related rights and freedoms including: i)
Corresponding author:
Eugene Schofield-Georgeson, University of Technology Sydney, Building 2, 61 Broadway, Ultimo, New South Wales, 2007,
Australia.
E-mail: eugene.schofield-georgeson@uts.edu.au
The International Journalof
Evidence & Proof
2020, Vol. 24(2) 121–141
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712719887409
journals.sagepub.com/home/epj
voluntariness of confessional evidence;
1
ii) the presumption of innocence;
2
iii) the burden and standard
of proof (‘beyond reasonable doubt’);
3
iv) the protection against self-incrimination;
4
v) a prohibition
against any adverse inference being drawn against the accused from their silence ‘during official
questioning’;
5
and vi) the right to counsel.
6
It is the third, fourth and fifth of these ‘silence rights’
7
(Dixon and Cowdery, 2013)—the burden and standard of proof and the protection or ‘privilege’ against
self-incrimination both during official questioning and at trial—with which this study is mostly con-
cerned, by seeking to show empirically how a selection of these silence rights work in practice through-
out the criminal process.
8
The purpose of this project is to contribute to the scholarly literature surrounding the effects of the
right to silence on conviction within criminal and summary jurisdictions, particularly for marginalised or
‘vulnerable’ criminal defendants. This study builds on similar empirical work undertaken in respect to
the right to silence in the United Kingdom and Singapore between the 1970s and early 2000s (see, for
instance, Bucke et al, 2000; Coldrey, 1991; Cross, 1971; Jackson, 1991; Jackson et al, 2000; Leng, 1993;
O’Mahony, 1997; Phillips and Brown, 1998; Tan, 1997; Yeo, 1983). The latter predominantly focused
on the effect of introducing ‘adverse inference’ provisions into the law of criminal evidence in these
jurisdictions (laws allowing judges and juries to draw inferences of guilt against an accused person
because they exercised their right to silence).
9
No empirical scholarly work has been published in respect
to this issue in Australia. Accordingly, the findings of this study deepen understandings of how silence is
exercised throughout the criminal process in a summary Australian jurisdiction that is largely unbur-
dened by adverse inference provisions. In this respect this study also provides a useful comparator or
control study to the existing international scholarship. But its aims are broader. This study focuses its
enquiry on gaps identified by the largest empirical study on the issue, conducted by Bucke et al. (2000),
including: i) the extent to which silence laws affect marginalised groups (Bucke et al., 2000: 76); ii) how
silence rights operate in respect to charges in which silence is more clearly an issue (such as those
involving a fault or mens rea element, as opposed to strict liability offences) (Bucke et al, 2000: 67); and
iii) the ways in which decision-making by suspects and defendants operates within the criminal process
(Bucke et al, 2000: xiv). Such information allows stakeholders and policy makers greater insight into the
significance of silence rights, especially their effects. As importantly, it provides researchers and com-
mentators with greater evidence for enhanced explanation and understanding of pre-trial criminal
procedure, not only between criminal jurisdictions (such as between jurisdictions that maintain adverse
inference provisions and those that do not) but also between criminal and regulatory jurisdictions that
frequently dispense with the right to silence (Comino, 2014; Stewart, 2016: 100). As a recent Australian
1. NSW Law Reform Commission Report 95, 31; Evidence Act 1995 (NSW), s. 84; RvSwaffield; Pavic vThe Queen [1998]
HCA 1; 192 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998).
2. NSW Parliamentary Library Briefing Paper 12/2000 Pre-Trial Defence Disclosure: Background to the Criminal Procedure
Amendment (Pre-Trial Disclosure) Bill 2000, Chapter 3. Evidence Act, s. 89 (1)(a); Law Enforcement (Powers and Respon-
sibilities) Act 2002 (NSW) (‘LEPRA’), s. 122(1)(a).
3. Ibid, Evidence Act, ss. 141(1) and 3 (definition of ‘case’);
4. Ibid, Evidence Act, s. 89(1)(a); LEPRA, s. 122(1)(a).
5. See Petty and Maiden vR(1991) 173 CLR 95, 90, codified by the Evidence Act, s. 89(1)(a); and modified by Weissensteiner v
R(1993) 178 CLR 217.
6. LEPRA 2002, s. 22(1); RvDietrich (1992) 177 CLR 292, [1992] HCA 57.
7. The definition of ‘the right to silence’ and the use of the term ‘silence rights’ is contested within the literature on evidence law
and is the subject of ongoing debate. This debate is explored under ‘Understanding the right to silence’.
8. The author thanks Professor of Public Statistics James Brown and Public Statistics PhD candidate Torrington Callan, at the
University of Technology Sydney (UTS), for their assistance in visualising the data used in this article.
9. In practice, the provisions mean that when law enforcement officials administer a caution to a suspect by telling them that they
have the right to remain silent and that anything they say may be recorded and used in evidence against them, officials must, in
addition, advise the suspect that their silence or failure to answer questions may be used against them at their trial by a judge or
jury to infer guilt: Evidence Act, s. 89A.
122 The International Journal of Evidence & Proof 24(2)
To continue reading
Request your trial