Evidence Amendment (Evidence of Silence) Bill 2013
Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013



About this Item
SpeakersMoselmane The Hon Shaoquett; Mason-Cox The Hon Matthew; Ajaka The Hon John; Primrose The Hon Peter; Phelps The Hon Dr Peter; Secord The Hon Walt; Voltz The Hon Lynda; Westwood The Hon Helen; Fazio The Hon Amanda; Cotsis The Hon Sophie; Gallacher The Hon Michael
BusinessBill, Division, 2R, 3R



EVIDENCE AMENDMENT (EVIDENCE OF SILENCE) BILL 2013
CRIMINAL PROCEDURE AMENDMENT (MANDATORY PRE-TRIAL DEFENCE DISCLOSURE) BILL 2013
Page: 18886
    Second Reading

    Debate resumed from an earlier hour.

    The Hon. SHAOQUETT MOSELMANE [3.37 p.m.]: I thank the Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council for his assistance before the suspension of the sitting for lunch and note that Opposition members and members of the minor parties were not given enough notice to formulate a more considered response. The Evidence Amendment (Evidence Of Silence) Bill 2013 and Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Bill 2013 are draconian pieces of legislation that aim to take away one of the fundamental rights that provide some legal protection against the abuse of power for the innocent, those who fear the system, those who cannot afford it and, in many cases, those who do not understand it. We oppose the legislation because it takes away a fundamental protection against self-incrimination and the right to silence.

    Given the nature of our multicultural society and the fact that people who seek refuge become members of our society, police and governments can at times be seen as instruments of oppression. Police try hard to build bridges in the community and to be seen as the good guys, which is what we want. We do not want them to be seen as instruments of authority and abuse. These bills will leave the law open to possible or perceived abuse. Accused people may feel coerced into giving wrong statements, which may intimidate innocent people into making false confessions, particularly those who do not understand English, young people or people from vulnerable culturally and linguistically diverse backgrounds. The effect on migrants must be particularly noted.

    People who do not understand why they are being detained or the nature of the accusation cannot be expected to answer any charges on the spot. They cannot be expected to give any proper explanations or be able to defend themselves. These changes will put migrants or those from culturally and linguistically diverse backgrounds in particular at high risk. In addition, they will unfairly impact on people with an intellectual disability and they may also disadvantage Indigenous people.

    I referred earlier to the Australian Lawyers Alliance, which provided a submission to the New South Wales Department of Attorney General and Justice on the exposure draft of the Evidence Amendment (Evidence of Silence) Bill. The alliance maintains that it is deeply disappointed with the lack of government consultation surrounding the bill. It had only 10 days within which to assess the impact of a bill that undermines a basic legal right that is pivotal to the rule of law. The proposed amendments which will allow magistrates and juries—and judges in judge-alone trials—to draw unfavourable inferences, will impact significantly on the cases of accused individuals. The Australian Lawyers Alliance submits that the changes are unnecessary, that they will lead to lazy policing and that they will ultimately prejudice the rights of individuals.

    It is alleged that the proposed amendment, which this Government argues addresses a wall of silence, will hamper police investigations when in fact it will subject innocent people to a system that will victimise them and rob them of a legal process that gives them an opportunity to seek legal advice and collect their emotions and thoughts before they begin to communicate their side of the story to the police and to the legal system. The proposed rule change is not likely to frighten hardened criminals or criminal gangs, but it will intimidate the innocent. Innocent people may not answer a question for any number of reasons, such as mental incapacity, intoxication, age, stress, loss of recall, professional advice, misunderstanding the question, ignorance of rights and duties, and fear of consequences. If successful, the new laws would be a first for any Australian State or Territory and they would set an undesirable precedent for other conservative States to spread the harm Australia-wide and beyond. I therefore join my colleagues in opposing these bills.

    The Hon. MATTHEW MASON-COX (Parliamentary Secretary) [3.41 p.m.]: I express my support for the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013. Other members who have spoken in support of these bills, here and in the other place, have comprehensively addressed the detail of the bills and I endorse their worthy contributions. These bills are both right in principle and desirable in practice. Those railing against the changes proposed by these bills generally espouse an ill-founded ideology that the criminal justice system and the criminal trial system are perfect just as they are. Common sense—that elusive human attribute—tells us the system is not perfect; indeed, it is far from perfect.

    The contrarians cry out that the right to silence is sacrosanct. They would have us believe that the proposed modifications are a hair's breadth away from a return to trials by ordeal or combat, or the use of the rack or perhaps a red-hot poker. What absolute nonsense. The sky is not falling in. The law is not some inert set of rules set in stone from time immemorial and for perpetuity. Like the common law, our law lives: it adjusts and it evolves. We should never forget that the search for truth lies at the heart of our criminal justice system. These bills recommit to this search by gently redirecting our criminal justice system towards this ultimate goal.

    Regretfully, over time we have seen the gradual erosion of confidence in our criminal justice system. I contend that one of the reasons for this has been the ideological obsession with rights at the expense of obligations. Whatever happened to the old-fashioned obligation to give a full account of one's conduct and actions? Whatever happened to one's obligation to tell the truth? In my view, these bills will help to restore these proven, age-old obligations, which, in turn, will help to restore respect and confidence in our criminal justice system. Accordingly, I commend the bills to the House.

    The Hon. JOHN AJAKA (Parliamentary Secretary) [3.44 p.m.]: I speak in support of the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013. The Evidence Amendment (Evidence of Silence) Bill 2013 amends the Evidence Act 1995 to allow an unfavourable inference to be drawn against certain accused persons who fail or refuse to mention a fact during official questioning that they later rely on at trial. The bill is targeted at seeking information from a suspect in the first stages of an investigation and aims to identify the defences and the facts the suspect will later rely on at trial, if charged. Early identification of the issues will assist later in the efficient management of trials.

    The bill complements changes to the Criminal Procedure Act case management provisions in the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013. That bill will provide a second opportunity for an accused to give information in the weeks before trial in the District Court or the Supreme Court. The bill does not remove the right to silence; it does not force suspects to speak. It does, however, allow there to be consequences if a suspect chooses to remain silent until the last minute. The provisions will apply to serious indictable offences. They represent a targeted and balanced response to the wall of silence that has been the subject of significant community, police and government concern. They are a common-sense response to the tactical use of silence by sophisticated and organised criminals.

    For the provisions to apply, a special caution must be given. To be able to give it, the investigating official must have reasonable cause to suspect that the person being questioned had committed a serious indictable offence. The special caution is to the effect that saying or doing nothing may result in an inference being drawn that may harm a person's defence because of a failure or refusal to mention a fact subsequently relied on. The special caution also includes the words of the current standard police caution and may be given after or in conjunction with the standard caution. If the charge later changes to a less serious charge, the giving of the special caution in accordance with the section does not, of itself, make evidence obtained in response to the special caution inadmissible in the proceedings for the less serious charge.

    The suspect must have been given the special caution in the presence of his or her legal representative. "Presence" is not defined in the bill, but its everyday interpretation means that the legal representative must be physically present. The suspect must also have been allowed a reasonable opportunity to consult in private with that legal representative about the nature and effect of the special caution before he or she failed or refused to mention a fact. If the suspect's legal representative was not present the provisions will not apply. However, the proposed pre-trial mandatory defence disclosure provisions will mean that an unfavourable inference can be drawn against an accused who fails to comply with his or her disclosure obligations in the trial process.

    The bill contains important safeguards for people who are suspected of committing serious indictable offences and who are questioned by the police. No inference can be drawn against an accused who was under 18 years of age or who was incapable of understanding the general nature and effect of the special caution at the time he or she was questioned. The incapable person test is familiar to police as it is currently used to assess whether a person is capable of giving informed consent to the carrying out of forensic procedures. It replaces the cognitive impairment exemption in the exposure draft bill and is changed to reflect the issues raised during consultation.

    Additionally, no inference can be drawn when accused persons were not in the presence of their legal practitioner at the time that they were given the special caution and when they were not given a reasonable opportunity to consult in private with that legal practitioner on the effect of the special caution. The provisions do not remove current protections for other vulnerable persons in police detention, such as assistance from a non-qualified support person during interview and access to the Aboriginal Legal Service telephone advice line. The bill's provisions will be reviewed five years after their commencement.

    In respect of the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013, I note that the Government has introduced a separate bill containing changes to the Evidence Act, which will allow an unfavourable inference to be drawn against accused people who rely on facts at trial that they did not mention during police questioning. The bill complements those changes by allowing for an unfavourable inference to be drawn against an accused who fails to comply with obligations to disclose particular material before trial pursuant to the Criminal Procedure Act. It will apply only to trials heard in the higher courts. Although currently there are mandatory disclosure requirements in the Criminal Procedure Act, the new provisions increase the scope of what is required from both the prosecution and the defence in their mandatory disclosure notices. They also allow flexibility for the court to order additional defence disclosure as the circumstances of cases dictate.

    The changes are being made because of concerns that trials are not running on disputed issues, which impacts on everyone involved in the process through unnecessarily longer trials, including court staff, witnesses, lawyers and, importantly, members of the community undertaking jury duty. For example, the average length of trial in Sydney's District Court has increased over the past decade from 8.3 days in 2003 to 11.62 days in 2011. Lengthier trials also increase the queuing times for other accused waiting for their cases to be heard. The revised case management provisions are intended to address this problem.

    It is intended that the sanction of an unfavourable inference for failing to comply with disclosure obligations will provide an incentive to comply with the obligations and drive the change needed for cases to run more efficiently through the early identification of issues in dispute between the parties. To ensure that disputed issues are identified and addressed before trial, the prosecution is required to serve a notice of its case on the accused, and the accused is required to serve its notice of the defence response in the weeks leading up to trial. The timetable will be set out in District Court and Supreme Court practice notes.

    The court practice note timetables reflect that trial counsel for the prosecution and the defence will have been briefed by the time notices are required to be served. Trial counsel will therefore be able to undertake the tasks of drafting and settling the notices, as well as identifying and hopefully resolving issues in dispute between the parties. The prosecution notice must include the material required by both the mandatory and discretionary requirements in the current case management provisions. This expansion of the existing mandatory prosecution disclosure requirements is necessary to meet the expanded mandatory defence requirements in the bill.

    For the defence, the notice of response must now include, in addition to the current mandatory requirements: the nature of the accused's defence, including particular defences to be relied on; the facts, matters or circumstances on which the prosecution intends to rely to prove guilt, as indicated in the prosecution's notice, and with which the accused intends to take issue; and points of law that the accused intends to raise. It is these elements of defence disclosure that will ensure trials are run on the disputed issues that have been identified before the trial begins. Change is needed to ensure that the case management provisions of the Criminal Procedure Act are used. The availability of an unfavourable inference for failures by the accused will seek to ensure that defence disclosure obligations are complied with.

    The sanction of an unfavourable inference against the accused is in addition to the existing sanctions in the Criminal Procedure Act, which apply to both the prosecution and the defence. They allow for exclusion of evidence or adjournments where obligations under the case management provisions have not been met. If the accused fails to comply with any disclosure requirement imposed by the new case management provisions, or fails to give a notice of alibi where required to do so, the court, or any other party with the court's leave, may make any comment at trial that appears proper. For example, the prosecutor may bring the accused's failure to disclose to the jury's attention during his or her closing address at the end of the trial. Secondly, the court or jury may then draw unfavourable inferences as appear proper. Only the trial judge will be permitted to comment to the jury on drawing the unfavourable inference, and it is intended that the Judicial Commission's Bench Book Committee will prepare material for judges giving guidance on how to make such comment.

    To reflect the expansion of the mandatory defence disclosure requirements, the bill includes certain safeguards for the accused in relation to the availability of the unfavourable inference and the use of the case management provisions. For example, an accused person cannot be found guilty solely on the basis of an unfavourable inference. There must be other evidence of the accused's guilt besides the unfavourable inference before the jury can be satisfied beyond a reasonable doubt and return a guilty verdict.

    The court can order the waiver of the disclosure requirements. To reflect the fact that compliance with the mandatory requirements should be the starting point, a waiver order can be made only when the court is of the opinion that it is in the interests of the administration of justice to do so. One of the factors the court must consider is whether the accused is legally represented. If the court makes a waiver order it must state its reasons for doing so. Disclosure is scheduled to take place at a time out from trial when it is expected that trial counsel will have been briefed to settle the defence notice of response and discuss issues with the prosecution. The provisions will be subject to a statutory review two years after they have been in force. I commend the bills to the House.

    The Hon. PETER PRIMROSE [3.54 p.m.]: I also speak in debate on the Evidence Amendment (Evidence of Silence) Bill 2013 and the (Criminal Procedure Amendment Mandatory Pre-trial Defence Disclosure) Bill 2013. Before I begin I commend the excellent speeches that have already been given particularly by the Hon. Adam Searle in this House and Mr Paul Lynch in the other place. The object of the Evidence Amendment (Evidence of Silence) Bill 2013 is as follows:

        The object of this Bill is to amend the Evidence Act 1995 so that in proceedings for a serious indictable offence an unfavourable inference may be drawn from the defendant's failure or refusal to mention a fact during official questioning that the defendant could reasonably have been expected to mention and that is later relied on by the defence in the proceedings.

        Such an inference will not be able to be drawn unless, before the questioning, a special caution was given to the defendant in the presence of a legal practitioner acting for the defendant.

        Such an inference will also not be able to be drawn if it is the only evidence that the defendant is guilty of the offence.
    The object of the mandatory pre-trial defence disclosure legislation is as follows:

        The object of this Bill is to amend the Criminal Procedure Act 1986:

        (a) to expand the matters that must be disclosed by the defence and the prosecution before a trial for an indictable offence, and

        (b) to enable the court (and other parties with the leave of the court) to make proper comments in a trial for an indictable offence in circumstances where the accused person fails to comply with certain pre-trial disclosure requirements, and

        (c) to enable the court or the jury in such circumstances to then draw such unfavourable inferences as appear proper.

    In my view, the package represented by these two bills is wrong in principle and undesirable in practice. The issue that has already attracted most attention in this debate is the abolition of what is known as the right to silence for serious indictable offences, which is contained in the first of these two bills. The right to silence is a principle in the law that a person does not have to answer questions if asked by the police, and that there are no consequences for a person who does not answer those questions. The principle comes from an essential element of our legal system, which is that if one stands charged or accused of an offence it is up to the State, the Crown, to prove the offence; and the Crown must prove it beyond reasonable doubt. The Crown does not prove it by forcing the accused person to give evidence against himself or herself. That is a fundamental principle of our system, and it has been so for a very long time.

    A number of members have indicated that the law, particularly the common law, changes and evolves over time. However, it evolves or changes a fundamental principle only if there is an exceptionally good reason. The principle of the law, particularly the common law, is based on precedent. What is found to be good principle or good precedent over time enters and becomes our common law. A government must have exceptional reasons to seek to change that. I believe that a principle that can be traced as far back as various practices in the Old Testament cannot be changed simply on a political whim, as appears to be the case here. We have had the bill for a very short period and I have been unable to go through it as extensively as I would have liked to have done, but I note that proposed new section 89A (3) provides:
        It is not necessary that a particular form of words be used in giving a special caution.

    Proposed new subsection (9) specifies that the special caution must have the effect outlined in paragraphs (a) and (b), but it concerns me that in such an important provision not even a form of words that has been held to have evolved over time and is enshrined in principle will be accommodated in this legislation. Under this bill, a specified form of words does not have to be applied. That specific principle has been written into this bill as proposed new section 89A (3). In other words, it is okay for an officer to use a form of words provided that the form of words is generally regarded as having the intent of issuing a special caution. Proposed new section 89A (3) technically is able to be challenged, and I am sure it would be argued by the defence that any form of words could be covered by the intent stated in proposed new section 89A (9). Those very basic matters have not been thought through sufficiently in the preparation of this bill. I will more closely examine the issue of presumption of innocence to illustrate the point that this legislation should not be trifled with and should be examined with a great deal of care. Under Roman law—

    The Hon. Melinda Pavey: You have done your homework, Peter.

    The Hon. PETER PRIMROSE: For the interest of members who have a knowledge of history, Roman law was received into our legal system and it forms the basis of our legal system—so it is something of which we, as legislators, need to be aware. Under Roman law, the sixth century digest of Justinian describes a general rule of criminal law that the accuser bears the onus of proof. I will not cite the Latin phrase; I will leave that to others.

    The Hon. Rick Colless: Bring on the Latin.

    The Hon. PETER PRIMROSE: No. I well understand the standing orders that stipulate English to be used in this House. The English interpretation of the rule is, "Proof lies on him who asserts, not on him who denies." When this rule is applied to criminal process, irrespective of whether that actually was done in Roman law, it places the burden of proof upon the accuser, which has the corollary that the accused is presumed to be innocent. Even in Islamic sharia law, in the Koran and sharia legislation from the beginning, suspects were innocent until proved guilty, and for serious crimes Islamic law requires the testimony of multiple eye witnesses to convict. While I cannot speak for Buddhists, I well appreciate that there may be something similar in Buddhist doctrines.

    In sources from common law jurisdictions throughout the world, the expression appears in an extended version, "The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof"; in its original form, "The proof lies upon the one who affirms, not the one who denies"; and in various shortened forms, "The onus of proving a fact rests upon the man." The rule is quoted throughout the common law from the early days of development of English common law principles through stare decisis. In other words, the rule has been reinforced over time through precedent because it has been found to be of value within our legal system. It is what our legal system is based upon and should not be trifled with.

    The maxim or its equivalent has been adopted in many civil law systems, including those that have not adopted the English common law system, such as Brazil, Italy, the Philippines, Poland, Spain and France, to name just a few. The presumption of innocence serves to emphasise that the prosecution has an obligation to prove each element of the offence beyond a reasonable doubt, or according to some other level of proof depending on the jurisdiction, and that the accused bears no burden of that proof. That is often expressed in the phrase introduced in the late eighteenth century by the English lawyer, Sir William Garrow, as "innocent until proven guilty". Garrow insisted that accusers be robustly tested in court so that an objective observer, in the position of a juror or a judge, must reasonably conclude that the defendant almost certainly committed the crime.

    The presumption of innocence is a legal instrument that was created by a French cardinal and jurist, Jean Lemoine, to favour the accused based on the legal inference that most people are not criminals. It is considered to be evidence in favour of the accused that has been introduced by law and attaches automatically at trial. It requires that the trier of fact, such as a juror or a judge, begins with the presumption that the state is unable to support its assertion of guilt. The presumption means, with respect to the critical facts of the case, that the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses, or present any other evidence. If the defendant elects not to testify or present evidence, that decision cannot be used against them.

    That is the principle that this Government is proposing to throw out. It is not a principle that has been developed in the last 50 years or 100 years. It is a principle that has been developed over the past 2,000 years at least and vests in Roman law, which eventually was adopted by the English common law system and ultimately is reflected in a broad range of civil law countries. It is not unique to New South Wales. It is not a principle with which New South Wales legislators should trifle easily. It lies at the heart of our legal system.
      It is a fundamental right in modern democracies, constitutional monarchies and republics, and is to be found in legal codes and constitutions, such as Article 6.2 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe and section 11 (d) of the Canadian Charter of Rights and Freedoms. The same principle applies even in Iran in Article 37 of the Constitution of the Islamic Republic of Iran. It also is included in section 35 (3) (h) of the South African Constitution, Article 9 of France's 1789 Declaration of the Rights of Man and the Citizen. Although the Constitution of the United States does not cite the principle explicitly, there is a presumption of innocence that is widely held to follow from the fifth, sixth and fourteenth amendments that was cemented in common law in the case of Coffin v United States. It is reflected in Article 5 section 57 of the 1988 Brazilian Constitution, Title II, Chapter 1, Article 29 of the Colombian Constitution, Article 49 in the Constitution of Russia, and of course in Article 11 in the Universal Declaration of Human Rights. This principle should not be trifled with in a cavalier fashion.
        In conclusion, I will examine the experience of a place in which the rule has been trifled with—England, the mother country and the birthplace of Australia's legal system. As a historical fact, it is worth remembering that changes to the principle of the right to silence was introduced in Northern Ireland in 1988 in the context of England's attempt to crush the Provisional Irish Republican Army. My colleague the member for Liverpool, Paul Lynch, can very ably discuss the origin of those changes in great detail from both historical and legal perspectives. The context is important because that is how changes to the English common law originated. In England in 1993 they did not come out of nowhere. In Northern Ireland people who were facing accusations had to make rational decisions, so publicly funded legal advisers were required to be in police stations when the right to silence of the accused was withdrawn.

        That is the fundamental difference here. It is not proposed here that when individuals will lose this right that a publicly funded solicitor will be available to them. In fact, the Government has made it abundantly clear that it will not be funding Legal Aid to carry out that role. Legal Aid has already had cuts to its funding and it is already struggling to do the job it is currently meant to do. It certainly does not have the capacity to expand its role. The Government has made it very clear it is not going to be expanded.
          When we are talking about England, it is worth noting that the regime contained in this bill did not achieve what the British Government had sought in its amended legislation. In relation to those changes in England, I draw the attention of the House to the United Kingdom Home Office report that was released in 2000. It made a number of damning findings about the effectiveness of the law as it had been amended in the United Kingdom. Among other things, it found that prior to the introduction of the scheme 55 per cent of suspects made confessions during police interviews. The proportion of confessions made after the introduction of this law remained the same: 55 per cent. It had absolutely no impact on increasing the number of confessions extracted. The same report made the comment that those who might be termed hardened criminals continued to maintain their silence in exactly the same way. The introduction of the scheme made no substantial difference and had no substantial impact.
            However, what it did do was take away a fundamental principle of law, something that underlies the legal principles not only as enunciated by the United Nations, not only as enunciated in countries throughout the world, but also as enunciated within the common law. To that extent, it undermines the validity, the value and the respect that people have for the law in that it can ultimately be seen to be treading on civil rights. It can bring the law into disrepute. That is the damage that will be done if this legislation is enacted.

            The Hon. Dr PETER PHELPS [4.11 p.m.]: I note the hypocrisy of those opposite. You can bet your bottom dollar that if Robbo had woken up this morning and said, "Today I am not going to be civil liberties Robbo—

            The Hon. Walt Secord: Point of order: I remind the member that he must address members by their proper titles. "Robbo" is not an official title.

            The Hon. Dr PETER PHELPS: If the Hon. John Robertson had woken up and decided that today he was going to be law and order Robbo instead of civil liberties Robbo, people on the other side of the House would be congratulating us for introducing these bills. They would be saying how wonderful the bills were and how they were acting in a bipartisan manner to support the Government to crack down on these gangs. You can bet your bottom dollar that is exactly what the Labor Party would have done if its leader in the other place had decided it was going to be law and order day for the Labor Party. Instead, Opposition members go back to other arguments that just happen to exactly mimic the expressions of the Leader of the Opposition in the other place previously. There is more than the stench of hypocrisy from the Labor Party in relation to this matter. Its members should be ashamed of themselves. They know as well as I do that their party room does not allow them to deviate one iota from the line that is laid down for them by their imperious leader. That is the nature of their party room, that is the nature of their conscience and that is the nature of their hypocrisy.

            The Liberal Party is different. The Liberal Party allows people to speak their mind and to say what they believe. While I will be voting for these bills, I will indicate my concerns, at least with the Evidence Amendment (Evidence of Silence) Bill 2013. I can find no problem whatever with the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013—in fact, I heartily endorse it because, for a change, it will make defence counsel have to think about the quality and content of their case before they trundle up to court in a hurry and decide to fabricate a defence on the run. Defence counsel will have to do something before they get into the courthouse, which would be good.

            When Justice Ipp, currently the head of the Independent Commission Against Corruption, was a judge he said that "those who assert must prove". He was speaking in relation to civil actions, of course. But the principle of those who assert must prove is, I would argue, even more important in criminal matters because the accused is not required to prove their innocence.

            Mr David Shoebridge: The prosecution has to prove, not the defence.

            The Hon. Dr PETER PHELPS: If the member would listen to what I am saying, he would see that I believe in the principle that those who assert must prove. The role of the State in these matters over many centuries has been one of authority. The authority to use coercion and force is something that is granted on a limited basis to the State but for 350 years there has not been, as a broad statement, a requirement for people to give up their right against self-incrimination. Petty v The Queen confirmed that as a general rule judges cannot direct juries to draw adverse inferences from a defendant's silence. There are exceptions—terrorism laws and royal commissions—but they are recognised as such.

            However, the Evidence Amendment (Evidence of Silence) Bill 2013 seeks to change this, and I have concerns about that. I will give members a practical example. Say, for example, one evening someone breaks into Dr John Kaye's house, completely trashes it, wrecks the inside, starts a fire and steals his collection of the Red Army Choir's greatest hits. Detective Sergeant Smith comes along and says to Dr John Kaye, "Who could have done this? This is terrible. Do you have any enemies?" Dr John Kaye says, "I have hundreds of enemies." Detective Sergeant Smith says "Yes, but how many outside The Greens?" Dr John Kaye then says, "That chap Phelps, he is always attacking me." So Detective Sergeant Smith comes to see me and says, "Dr Phelps, where were you on the night of 19 March when this incident took place?" What should I say? Why should I not say something? If I have nothing to fear, and I know myself to be innocent of stealing the Red Army Choir CD collection, why should I not say where I was?

            It might be the case that I simply do not want to tell the State authorities what I was doing that night. I might have been down at Kens of Kensington with my twink boyfriend. I might have been having secret meetings with Archbishop Pell to convert to Catholicism. I might have been spanked at the Hellfire Club. I might have been at a secret factional meeting in north-western Sydney. I do not want the State to know what I am doing if I am an innocent party. The Hon. Walt Secord has no right to ask me what I am doing in my life, and the mere fact that governments are constituted does not allow his inability to ask what I am doing to be transmuted into a power of the State to find out what I am doing. That is my fundamental concern here. The State has no right to know what I am doing, unless it has a reasonable belief that I have something to answer for.

            Even then I am not compelled, or should not be compelled, under the principle that those who assert must prove, to say anything. I would be doing nothing illegal. I might just be doing something unpleasant, something I do not want publicised, something I do not want to tell State authorities about. Under the current law, knowing that I am innocent I can simply maintain a right to silence. I have a great deal of confidence in the New South Wales police and in the normal course of an investigation I believe they will find the real culprit. But I am concerned that this new enactment may lead to lazy policing. It concerns me that simply refusing to answer will, in some way, add to the aggregate of the police case. A normal investigator may currently say, "Well, Dr Phelps has asserted his innocence. He claims to have an alibi. He hasn't given me details of it. So maybe we will look elsewhere. Maybe we will look and find some other miscreant who is responsible for the activity."

            Bikies are a problem, but this proposal is worse because it will remain on the statute books even if bikies were to disappear overnight. Using evidence for downgraded charges also concerns me. I understand the principle that evidence adduced after the warning has been given and can now be used when charges are downgraded subsequently. I offer another situation: police see a group of young people over the age of 18 running away from an act of arson and take them in for questioning believing they are responsible. During questioning those young people say, "Well, no, actually we weren't. We were running away because we were just committing graffiti on the local railroad tunnel." That evidence is adducible against them in court. I am not saying that graffitists are wonderful, but obtaining evidence that way goes against the principle, even if we accept a weaker threshold for serious crimes. Adducing evidence for self-incrimination of lesser crimes is of concern.

            My fundamental principle is that the State should not require of me to tell it what I have been doing in my life. I know people will say, "Even if you are doing these things, you should tell the police anyway. The police will maintain the confidences." I would like to think that universally that is the case, but we know that police roundsmen—those who report on police cases in the media—have relationships with police officers. We know also that people gossip at Christmas parties. I worry that divulging details of my personal activity could be the subject of either selective leaks to the media or even apparently harmless gossip—"By the way, you'll never guess what Dr Phelps was doing on the night of 19 March. Ha ha ha." The State has no right to know what I am doing in my life unless it proffers some sort of evidence that I have violated the laws.

            Nobody could accuse me of being anti police. I support the New South Wales police strongly and have a high degree of confidence in them. Nobody could say that I am soft on crime. I believe I am one of the few people in this Chamber who would actively support a return to capital punishment. I would like to see much tougher penalties for street offences, such as graffiti, and I would like a tougher approach to crime. But I do not accept the abrogation of a principle that has been enshrined in our common law for at least 350 years; it is fundamentally unnecessary. A defence attorney who does not put his client on the stand immediately places a question mark in the minds of the jury.

            We would like to live in a fantasist Utopia that says juries always behave in a perfectly rational manner, but members opposite know full well that that is not how juries operate; they bring in their own prejudices, ideas and preconceived notions. In some ways, this bill is unnecessary because a jury will take account of an attempt to hide, irrespective of any direction by a judge to the contrary. The golden thread throughout has been to let those who assert prove their case. I subscribe to that notion and I hope other members do as well.

            The Hon. WALT SECORD [4.26 p.m.]: I make a brief contribution to debate on the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013. We have had very little time to examine these bills and, as I am not a lawyer, I was not going to speak in this debate. However, one need not be a lawyer to understand the significance of these changes. I feel compelled to add my voice against these bills. I will oppose the bills. I want my position publicly and permanently recorded against these significant changes to longstanding legal principles.

            My comments will centre mainly on the removal of the right to silence. Abolishing the right to silence contradicts one of the most fundamental legal protections of our society. It is contrary to the basic principle of criminal law—that is, that the Crown has the onus of proving a criminal case. The burden is not one of proof beyond reasonable doubt with the cooperation of the accused. The burden is proof beyond reasonable doubt in any circumstance, including that of an accused who wishes to remain silent. I remind the House that this right has been articulated in our legal heritage for generations and was included, most famously, in the judgement of Director of Public Prosecutions v Woolmington in 1935, which states:

                Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt …

                No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
            I repeat those last words: no attempt to whittle it down can be entertained. Any first-year law student would know this judgement, its significance and what it represents to the vital preserve of our rule of law. This is not just about law; this is also about social justice. Make no mistake: these changes will affect Aboriginal people and for those for whom English is not their first language. It is a threat to the liberty of the vulnerable and the innocent. It will affect those who are not fully aware of their legal rights. The vast majority of people being interviewed in police stations do not have a solicitor present at the interview. These proposed laws will also be cumbersome and costly. Without the ability to maintain silence until legal counsel arrives those arrested will now need legal aid to be present to advise them from the get-go. This will mean more time and more cost to our justice system, and for what purpose?

            The Government claims this is to do with bikie gangs. Yet, as Opposition leader John Robertson has indicated, if the Premier were serious about stopping organised crime, he would use the legislation passed a year ago to outlaw criminal gangs. Instead, under these bills, one law will abolish the right to silence. They will allow juries to draw a negative inference if a person accused of a crime chooses not to take part in police interviews, but later relies on evidence that he or she did not disclose. Another aspect of the bill makes it compulsory for the defence and prosecution to outline their cases weeks before trial to prevent the prosecution from being surprised by arguments. If the accused raises a different defence at trial, the judge could instruct the jury to draw an unfavourable conclusion. Again, this is completely contrary to that golden thread of our law, which is that prosecution is in all ways the prosecution's burden. Unfortunately, any move from that well-established principle is dangerous. These changes bring back concerns about forced confessions and the dreaded verbals.

            In conclusion, the legal principle of a right to silence has been in existence since the 1640s and the English civil war. That was a time when forced confessions were a regular event. In fact, some believe the right to silence goes back to Roman times and ancient Jewish law. The right to silence is a cornerstone of our criminal justice system in Australia, a principle that we share with most of the Western World. These bills overturn that approach in Australia. They mark our departure from a common law that is both our heritage and our greatest democratic security. We are debating the removal of laws that overturn centuries of internationally accepted laws. It is no wonder that the Law Society of New South Wales is concerned that the bill breaches Australia's human rights obligations under the International Covenant on Civil and Political Rights.

            Average Australians should be concerned. Our common law is by nature a conservative thing. It evolves slowly and with regard to heritage and precedent above all. Changes to it are always regarded with suspicion and concern, as we should regard these bills right now. These bills are wrong in principle, they are undesirable in practice, and the O'Farrell Government, which calls itself conservative, should show more respect and less haste in tampering with the centuries-old principles of our legal heritage. I oppose the bills. I thank the House for its consideration.

            The Hon. LYNDA VOLTZ [4.33 p.m.]: I join with my colleagues to oppose the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013 and the Evidence Amendment (Evidence of Silence) Bill 2013. The Evidence Amendment (Evidence of Silence) Bill 2013 will require a person detained and questioned by police to immediately provide evidence of their innocence or risk an adverse inference being drawn at trial with regard to that silence without the police having to present the evidence they hold against that person. That is a fundamental rejection of the presumption of innocence. I note in a submission that was made by Labor lawyers in regard to this ruling. Justice McHugh in RPS v R (2000) 199 CLR 620 at [61]-[62] stated:
                That privilege is one of the bulwarks of liberty. History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming. Because they hold that belief, often they do not hesitate to use physical or psychological means to obtain the answer they want. The privilege against self-incrimination helps to avoid this socially undesirable consequence.

            The Evidence Amendment (Evidence of Silence) Bill 2013 represents a fundamental shift in the legal principles that have governed the New South Wales judicial system. According to researchers Ronald Crelinsten and Iffet Ozkut, judicial restraints and limitations on policing methods form an integral part of any democratic system's protection of the individual. The rights of the accused, which include the right to silence and all other forms of due process, are essential to the workings of democracy. Based on the bill as it is, such safeguards are removed, legitimising the State's monopoly of coercive violence in the exercise of criminal law.

            The bill questions our commitment to liberalism and the protection of the individual. The reality is that with regard to this bill most suspects do not remain silent when questioned by the police and there is no evidence before the House that they do. There is no evidence to support the argument that the right to silence is widely being exploited. One would have to question why this bill has come before the House without any supporting evidence. Britain has introduced similar legislation but no evidence has been produced from that arena to support the bill.
              Similar bills have been placed before this House recently. I refer to the consorting laws, which have been debated in this House previously. In that regard, I take issue with the statements made by some in this debate: "If you are not guilty, there is no problem"; or "What are you trying to hide?" I refer to the case of Charlie Foster who at 21 years of age was jailed for 12 months for consorting with his friend Jack Hayes, with whom he lived at the time and who stated:

                  We couldn't do anything. We couldn't do nothing. We couldn't even go down and pay our bills. It literally seemed that there was only way that we could still talk to each other without being charged or locked up.

              At the time, Charlie Foster's lawyer advised him that he had no option but to plead guilty to the charge of consorting. He did so and he was imprisoned for nine months as a result on those laws. The reality is that the jail sentence was overturned on appeal. The prosecutors raised no opposition to the application for the case to be returned to the Armidale Local Court, conceding that their evidence was inadequate.

              This type of legislation does not take into account that the people affected may not be rational, articulate, emotional or accepting of police presence. Often such laws affect young, scared offenders and not the criminals that the Minister has suggested this bill will target. They may be young boys, such as the 16-year-old boy who lives with his grandfather and was recently charged under the consorting laws. Only yesterday that conviction was overturned on appeal. The reality is that the bill attacks individuals. The right to silence has existed for 300 years and has done so because it is fundamentally important to democracy.

              Despite what the Hon. Peter Phelps may believe, the Labor Party has always had an issue with any form of legislation that interferes with the right to silence. There are a number of organisations in this country to which no right to silence is provided for in legislation that established them. The Independent Commission Against Corruption is one such organisation. The Independent Commission Against Corruption requires people to answer questions. The 2011-12 Independent Commission Against Corruption annual report refers to nine persons being subject to recommendations that the advice of the Director of Public Prosecutions be sought for prosecution, and there were 2,420 cases in relation to which no further action was considered necessary and were closed by the Independent Commission Against Corruption.

              It should be noted that the Independent Commission Against Corruption works on the principle that it is a deterrent agency, but if one is looking to remove right to silence provisions as they relate to prosecutions, one needs to look at the agencies that currently make use of such legislation. The Australian Building and Construction Commission has had right to silence provisions removed from its Act also. That body was set up by Prime Minister John Howard as part of his ideological attack on the union movement and its members. It has been a complete waste of money, only serving to attempt to intimidate union members who stand up for decent wages and safety in construction. It retains coercive powers that allow construction industry workers to be subject to secret interrogations.

              However, last year the Australian Building and Construction Commission was forced to call an investigation into the failed prosecution of Victorian Construction, Forestry, Mining and Energy Union officials John Setka and Matt Hudson. The Australian Building and Construction Commission investigators admitted to having lost or destroyed evidence, including audio recordings, and to having changed their own statements in court. On 6 February last year the Federal Court found that an Australian Building and Construction Commission investigator had failed to prove the claim in any respect that Construction, Forestry, Mining and Energy Union Victorian organiser Jason Bell had threatened to stop Bendigo Scaffolding from working on a regional building site.
                On 22 December the Federal Magistrates Court found that Construction, Forestry, Mining and Energy Union Victorian organiser Gareth Stephenson raised a genuine health and safety issue on a road building project, something that the Australian Building and Construction Commission lawyers also conceded, albeit after wasting three days in court claiming the opposite. In both cases the court noted that the Construction, Forestry, Mining and Energy Union organisers were trained in and complied with the workplace laws. It confirmed that union organisers are entitled to seek to represent workers on construction sites to safeguard their interests.

                The problem with this type of legislation is its broad-reaching nature. The reality of consorting law, as has been demonstrated in cases thrown out by the courts, is that it is not aimed at the people for whom it was intended; it is used against some of society's most disadvantaged, inarticulate and uneducated people. The young person I referred to earlier, Charlie Foster, was unable to read and write. He was arrested in the custody of his flatmate, the person he was consorting with, and they both had committed only one offence. The legislation as outlined by the Minister was not intended to be aimed at the 16-year-old boy who lives with his grandfather. However, that is the way such legislation has been used and that is why Opposition members oppose it.

                The Hon. HELEN WESTWOOD [4.41 p.m.]: I speak against the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013. Like other members who have made a contribution to this debate, I am not a solicitor or a legal practitioner but I do not have to be to know why the legislation is so wrong. I am a civil libertarian, and as legislators we need good reasons to remove fundamental principles that protect civil liberties that are reflected in our laws. I do not think the case that the Government has argued justifies removal of those protections.

                I believe in the right to silence. As my colleague the Hon. Paul Lynch said in the other place, it is a principle of law that a person does not have to answer questions and that there are no consequences for a person who does not answer those questions if asked by police. The right to silence comes from an essential element of our legal system, which is that if one stands charged accused of an offence, it is for the prosecution to prove the offence and to prove it beyond reasonable doubt. The right to silence principle has been in existence for many hundreds of years to provide citizens with protections against the State. The term "right to silence" can have several meanings. In the High Court decision of Azzopardi v The Queen Justice Gleeson stated:
                    The right of silence is not, in this country, a constitutional or legal principle of immutable content. Rather, it is a convenient description of a collection of principles and rules: Some substantive, and some procedural; some of long standing and some of recent origin.
                In the same case Justice Gauldron drew a link between this pre-trial right to silence and the fundamental principle that people are innocent until they are proved to be guilty beyond reasonable doubt. In that decision she stated:
                    Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial. It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt. The corollary of that—and it is equally fundamental—is that, insanity and statutory exceptions apart, it is never for an accused person to prove his innocence. Therein lies an important aspect of the right to silence, which also encompasses the privilege against incrimination.
                It is a principle that on moral and human rights grounds needs to be preserved. I cite the Bar Association, which states:
                    The right to silence, along with the presumption of innocence, is one of the cornerstones of our criminal justice system. For over 300 years it has protected those accused of crimes while providing that no person is bound to give answers to questions that may incriminate them.

                    A suspect under investigation has no duty to answer questions of any kind. The suspect may not be penalised for exercising the right by allowing adverse inferences to be drawn at trial from silence in response to police questions.

                    Any system which forces individuals to answer questions from police can result in the intimidation of the innocent and in false confessions, particularly in people from vulnerable groups.
                In August 2012 Premier O'Farrell announced via media release that the right to silence laws must be, in his words, toughened, so that the scales of justice will be tilted towards common sense. It followed several high-profile cases in which defendants raised evidence at trial that had not been mentioned in their police records of interview. Let us be very clear here: This proposed legislation is intended to put pressure on someone to reveal his or her defence to the police. The exposure draft of the Evidence Amendment (Evidence of Silence) Bill was released for comment by the Department of Attorney General and Justice on 12 September 2012. The bill inserted a new section 89A into the Evidence Act 1995 that alters the principle that an accused has the right to remain silent when being questioned by authorities.

                The drastic repercussions of this bill are many, whereby individuals will be able to rely on inferences drawn on the basis of silence rather than evidence to present their cases. The new section allows, in proceedings for serious indictable offences, an unfavourable inference to be drawn against an accused who fails to mention facts when being questioned by police. This represents a radical departure from the current common law and legislation that provides full recognition of the right to silence and prohibits such an inference. The High Court in Petty v Maiden made it plain that the right to silence is a fundamental aspect of a fair trial.

                The right to silence serves a number of associated purposes: it underpins the presumption of innocence; it preserves the right against self-incrimination; it alleviates the power imbalance that often exists between police and suspects; it reduces the risk of wrongful convictions by preventing vulnerable and impressionable innocent suspects from having to provide the police with a false confession; it respects the privacy and integrity of the suspect; and it avoids presenting guilty suspects with a cruel dilemma of options such as possibly implicating or accusing themselves of a crime, misleading police, thereby committing a further offence or remaining silent and facing duress.

                It is proposed that an unfavourable inference cannot be drawn unless a defendant receives a special caution in the presence of a lawyer. The defendant's means and circumstances will be taken into account in determining whether a defendant was allowed an opportunity to consult a lawyer, although there is no requirement that the opportunity be facilitated by the State. The practicality of this section is not financially viable for a vast majority of citizens. It is further impeded by the fact that 24-hour legal advice is not available outside of Sydney in most New South Wales regions and that Legal Aid does not have the capacity to provide 24-hour advice.

                Legal Aid is currently in the process of sacking lawyers because of inadequate funding by the O'Farrell Government. In addition, the Attorney General, Greg Smith, has made the ludicrous suggestion of a telephone advice line to comply with the provision. I note that a number of submissions have argued that that is totally inadequate. Even if the legal advice is available, and I stress "if", such a suggestion appears largely inadequate because lawyers are unlikely to be fully instructed about the facts on which charges have been brought at the time of giving legal advice to an accused. This will inevitably lead to further costs, further delay, further complexity and gross miscarriages of justice.
                  While the O'Farrell Government claims the bill reflects changes that were enacted in the United Kingdom in 1994, the United Kingdom law only applies after legal advice has been provided free to all suspects. Further, there is no evidence that the United Kingdom changes achieved any measurable outcomes for prosecutors; in fact, there is evidence to the contrary. A submission on the draft bill by 17 legal academics from eight Australian universities who teach, research, practice and publish in the areas of criminal law and procedure and evidence law, put forward compelling arguments against following the United Kingdom model. The submission states:

                      The NSW Government bases its reform on s34 of the English Criminal Justice and Public Order Act 1994. However, the English legislation is generally viewed as unsuccessful and problematic. In 1999 Professor Diane Birch conducted a cost-benefit analysis of the English provisions, concluding that "the demands on judge and jury of the complex edifice of statutory mechanisms are enormous in proportion to the evidential gains they permit". In 2001 Professor Roger Leng stated that "far from facilitating the exercise of common sense, the effect … has been to introduce unnecessary complexity and to distort the process of fact-finding".

                      Professor John Jackson drew a similar conclusion and wrote that the scheme called for more safeguards and greater regulation of police interviews: "To those who cavil at the added complexity there is a simple solution - abolish the silence provisions."

                      In 2005 the English Court of Appeal noting the flood of appeals generated by the legislation, described it as a "notorious minefield". Few countries, apart from England, allow an inference from a suspect's exercise of the right to silence. In the United States, the right to silence remains fully enshrined in the 5th Amendment of the Bill of Rights.

                      In Europe the right to silence is considered to be inherent to the right of fair trial guaranteed by Article 6 of the European Convention on Human Rights. Last year a review commissioned by the Scottish Government, headed by Lord Carloway, recommended against adoption of the English legislation, noting that it had produced a scheme of "labyrinthine complexity", but would have limited "utility", at least without further substantial reforms in the areas of police disclosure and the provision of legal advice prior to police questioning.

                      In 2000, the NSW Law Reform Commission opposed the adoption of the English approach not only because it would be inconsistent with the right to silence and presumption of innocence, but also because of "practical and logical objections".
                  Quite rightly, numerous academics, lawyers and advocacy groups oppose the bill on human rights grounds and slam the inadequate consultation period. They highlight that the bill undermines the right to silence and the presumption of innocence, that silence may be consistent with innocence and that the bill is completely inconsistent with other Australian jurisdictions and international human rights covenants and contrary to the findings of the New South Wales Law Reform Commission.

                  In short, no other Australian jurisdiction has gone down this legal path, and for good reason. The submission I just mentioned lists some further reasons why we should not pass this proposed legislation: It places additional demands on police, without providing any benefit to the police investigation; it introduces unnecessary conflicts in the client-lawyer relationship; it is unnecessarily complicated, of unclear ambit and scope, increasing trial complexity without the promise of reducing incorrect acquittals; it creates inconsistency between the treatment of silence pre-trial and during trial, leading to legal incoherence and juror confusion; and it will increase the costs of criminal justice without any countervailing benefit. The President of the Law Society of New South Wales, Justin Dowd, has stated:

                      The people it will affect most are those that are charged for the first time, those who are nervous or panicked, those who have a disability, language difficulties or other disadvantages.
                  These proposed changes to the law are never going to frighten or impede hardened criminals or criminal gangs; our prisons are currently overflowing with them. This will only frighten and intimidate the innocent—those who may be witnesses or victims. The changes will further alienate people from non-English-speaking backgrounds who have poor language skills and may not understand the questions. Some disadvantaged communities are especially vulnerable in police custody. Aboriginal suspects are particularly vulnerable and ill-equipped to make judgements about what to say or what not to say to police.

                  What happens to citizens who do not have a high level of education or those who have a mental illness or an intellectual or cognitive disability? The proposed changes raise questions about people who may be impaired by alcohol or other substances, people who have a loss of recall, the elderly, or those who have a fear of authority based on previous trauma experienced in an overseas jurisdiction. Those arguments, together with the basic human right of the presumption of innocence until proven otherwise, put those people at serious risk.

                  I have heard arguments from those opposite that we are standing in the way of the Government and the NSW Police Force fighting organised crime in this State. It is my strong belief that that argument does not stand up to any real analysis. I have heard other members refer to this proposed legislation as being a lazy response by the Government to this very serious issue of organised crime that our community is currently facing. But I do not believe that this legislation will address that issue. We should look at training for police and approaches to policing. The Government, the police and the Attorney General's department need to work with other jurisdictions in Australia and other States and the Commonwealth to look at how we can share intelligence and how we can look at the market forces that make organised crime so profitable. We need to look at some of the strategies we could implement to assist police in locating criminals and attacking the sources and the causes of some of the crime we have been seeing across Sydney.

                  Removing the right to silence will not address that issue. It will take a far more comprehensive and sophisticated approach to policing in this State to address the very serious problem we have with organised crime gangs. It is a huge risk to attack this serious issue by taking away the rights of other citizens, a risk particularly for the most vulnerable in our community. As legislators we have an obligation to protect the most vulnerable in our State. The greatest growth as a proportion of the prison population in the past decade has been the number of vulnerable inmates: Aboriginal men and women, inmates with mental health issues, women—often women whose crime was caused by an addiction to gambling—and inmates with a borderline intellectual disability. Those people are not engaged in organised crime, but I believe their numbers would grow if we went down the path of supporting this bill and removed a citizen's right to silence. For the reasons I have outlined I will not be supporting this bill. I hope that other members in this place think seriously about this legislation and what it will mean for the most vulnerable people in this State when they make their decision as to how they will vote.

                  The Hon. AMANDA FAZIO [5.00 p.m.]: I oppose the Evidence Amendment (Evidence of Silence) Bill 2013 because it is an ineffective way to crack down on crime. In August when the Premier announced by way of press release that the right to silence law would be toughened, he claimed that it would be a good way to crack down on crime. I do not believe that. The caution currently given by police reads, "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 that?" The Evidence Amendment (Evidence of Silence) Bill will change that to something along the lines of, "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 which you later rely on in court. Anything you say and do may be given in evidence. Do you understand?"

                  Many people have said that this seems to work okay in the United Kingdom so why should we not have this system in New South Wales? I will address that matter in more detail later. The simple fact is that people involved in the criminal justice system have had the right to silence for a very long time. There is some debate in the legal fraternity about how long the right to silence has existed. The 2001 judgement of Justice McHugh in Azzopardi v The Queen contained an account of the history of the right to silence. Justice McHugh argued that contrary to long-held beliefs that the privilege against self-incrimination and the incidental right to silence were longstanding principles of common law dating back to the seventeenth century, in fact the self-incrimination principle did not really become firmly established as a principle of the common law until the mid-nineteenth century or later. Whichever time this came into effect, it is one of the pillars of the criminal justice system that we are used to in New South Wales. Section 89 of the Evidence Act 1995 states in relation to the right to silence:

                      (1) 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.
                      (2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

                  We need to understand that the Evidence Act of New South Wales is not the only Act that relates to the right to silence. Other pieces of legislation also refer to it. For example, part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, commonly called LEPRA, contains provisions regarding the power of police to question suspects. Section 122 provides that police custody managers must caution people who are detained under part 9 as soon as practicable that they do not have to say or do anything but anything that they say or do will be used in evidence. Likewise the Criminal Procedure Act 1986 contains provisions relating to pre-trial disclosure and those parts of the Act also include the right to silence. Also at page 66 under the heading, "Questioning suspects" the police Code of Practice for Custody, Rights, Investigation, Management and Evidence [CRIME] states:

                      You do not have any power to detain or arrest someone merely to question them.

                      All people have the Common Law right to silence, except where the law requires them to provide information.
                  A wealth of evidence can be found in a number of research papers generated by both the New South Wales Parliamentary Library and other organisations because the issue of the right to silence in our legal system is debated from time to time. Every major report and inquiry has found that the right to silence should not be changed. Never mind that; this Government has decided that it will try to change it. Chapter 2 of the Law Reform Commission New South Wales report entitled, "Report 95 (2000)—The right to silence" deals specifically with the right to silence. Chapter 2.138 states:

                      ... the right to silence is an important corollary of the fundamental requirement that the prosecution bears the onus of proof, and a necessary protection for suspects. Its modification along the lines provided for in England and Wales and Singapore would, in the Commission’s view, undermine fundamental principles concerning the appropriate relationship between the powers of the State on the one hand and the liberty of the citizen on the other, exacerbated by its tendency to substitute trial in the police station for trial by a court of law. There are also logical and practical objections to the English provisions. An examination of the empirical data, moreover, does not support the argument that the right to silence is widely exploited by guilty suspects, as distinct from innocent ones, or the argument that it impedes the prosecution or conviction of offenders.
                  The commission concluded by saying that one of the key features of the system in England and Wales is that suspects there have a statutory right to legal advice. Fans of The Bill would be well aware of the fact that there is always a duty solicitor floating around Sun Hill police station. That simply would not be the case if this law were introduced in New South Wales. Paragraph 2.139 of the commission's report states:

                      There is in this State an additional practical problem with importing the English law. A fundamental requirement of fairness in any obligation imposed to reveal a defence when questioned by police is that legal advice be available to suspects to ensure that they understood the significance of the caution and the consequences of silence. This has been acknowledged in the United Kingdom. Provision of duty solicitors to give the necessary advice is impossible within presently available legal aid funding. Significant increases in legal aid funding appear to be unlikely and, in the Commission’s view, could not be justified (on financial grounds alone) unless there were significant advantages that can clearly be demonstrated for the effectiveness of investigations and the administration of justice.
                  I believe that this legislation is being introduced to this place despite the best evidence that exists in the community and in the legal profession. As I said at the outset, this bill is an ineffective way to crack down on crime. If I was going to be very cynical I would say that it is nothing more than a stunt on the part of this Government to try to cover up for its failure to make any significant inroads into the activities of some criminal elements in New South Wales. The Government's original proposal was that the caution could only be given after legal advice was given to the accused. This was defined to include telephone advice. That has been dropped from the proposal and there must now be a solicitor present for the caution to be given. The Government has said it will not fund this, and funds have already been cut to Legal Aid. The only cases where it can apply will be cases where the accused can afford to have a solicitor present. Why an accused would elect to do that under this bill is entirely unclear and it seems the caution will rarely, if ever, be given.

                  Bringing in this legislation could mean that serious criminals, who are often very familiar with the law that might apply to them, will simply sit there and not call for legal advice. They probably have a criminal lawyer on speed dial but they will not ring that lawyer because they are not obliged to say anything to the police under this Government's proposal. Not only will this bill be ineffective; it could have a counter effect to what the Government claims. Justin Dowd, the then president of the Law Society of New South Wales, in his article on the right to silence in the Australian dated 17 August 2012 stated:
                      Ironically, if the law was enacted, the people least affected would be career criminals, who would know they should stay silent anyway.

                      The people most affected would be those charged for the first time, who are nervous or panicked, or who have a disability, language difficulties or other disadvantages.

                      In such circumstances, is it fair (or good policy) that you will be required to make a statement or face the assertion in court later that you made it all up?

                      Existing laws already require an accused person to give notice of any alibi defence well in advance of a trial. The proposed law does not relate to that issue.

                      At least the police warning could be simpler, perhaps: "Anything you say may be used against you; anything you don't say, will be".

                      Finally, it is implied that such a changed law will somehow help the police investigate incidents in which witnesses and victims refuse to co-operate. The proposed law, as far as we—

                  there he refers to the Law Society—

                      can judge, will apply only if a person is charged with an offence.

                      The proposed law is absolutely irrelevant to assisting police, who do a difficult job very well in cases where a code of silence applies — as opposed to the right to remain silent.
                  Justin Dowd really hit on the issue in those comments. In some sections in the community, a code of silence applies to discussing or giving evidence about criminal activities. That is very different to the right to remain silent, which is a pillar of our criminal justice system. We should support that important principle and we should tell the Government to withdraw this bill, go back to the drawing board and come up with a better, practical and real way of cracking down on crime. Quite frankly, this bill is not the answer. I urge all members to oppose this bill.
                    The Hon. SOPHIE COTSIS [5.11 p.m.]: The Opposition opposes the Evidence Amendment (Evidence of Silence) Bill 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013. The package represented by the bills is wrong in principle and undesirable in practice. The object of the Evidence Amendment (Evidence of Silence) Bill 2013 is to amend the Evidence Act 1995 so that in proceedings for a serious indictable offence an unfavourable inference may be drawn from the defendant's failure or refusal to mention a fact during official questioning that the defendant could reasonably have been expected to mention and that is later relied on by the defence in the proceedings. Such an inference will not be able to be drawn unless, before the questioning, a special caution was given to the defendant in the presence of a legal practitioner acting for the defendant. Such an inference will also not be able to be drawn if it is the only evidence that the defendant is guilty of the offence.

                    The object of the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013 is to amend the Criminal Procedure Act 1986 to expand the matters that must be disclosed by the defence and the prosecution before a trial for an indictable offence, and to enable the court to make proper comments in a trial for an indictable offence in circumstances where the accused person fails to comply with certain pre-trial disclosure requirements, and to enable the court or the jury in such circumstances to then draw such unfavourable inferences as appear proper. The concern of my Opposition colleagues in this House, the lower House and me is the abolition of the right to silence for serious indictable offences. The so-called right to silence is a principle in law. It means that a person does not have to answer questions asked by the police, and there are no consequences for a person who does not answer those questions. The principle stems from an essential element of our legal system that when a person is charged with or accused of an offence, it is up to the State—in other words, the Crown—to prove the offence, and the Crown must prove the elements of the offence beyond reasonable doubt.

                    The Crown does not prove its case by forcing an accused person to give evidence against himself or herself. That has been a fundamental principle of our system for a very long time. It has been pointed out to the shadow Attorney General that history records evidence of the existence and adoption of that principle as long ago as the Old Testament. Certainly in contemporary common law traditions it is often said to date from the 1640s, the abolition of the Star Chamber and the bloody battles of the English Civil War. Granted that it is a principle that has existed in our system for so long, one would think a fairly substantial onus exists to warrant a government overturning that principle. The legal profession is very concerned about this bill and so are citizens from whom I have received emails and letters. When I have spoken to Labor Party branch members and addressed meetings concerned with matters outside my portfolio responsibilities, the implications of this bill have been raised with me. The significance of the right to silence is dealt with in material from the Bar Association, which states:
                        The right to silence, along with the presumption of innocence, is one of the cornerstones of our criminal justice system. For over 300 years it has protected those accused of crimes while providing that no person is bound to give answers to questions that may incriminate them.

                        A suspect under investigation has no duty to answer questions of any kind. The suspect may not be penalised for exercising the right by allowing adverse inferences to be drawn at trial from silence in response to police questions.

                        Any system which forces individuals to answer questions from police can result in the intimidation of the innocent and in false confessions, particularly in people from vulnerable groups.

                    The Government has been unable to provide evidence to show why that principle should be overturned. The O'Farrell Government must justify such a fundamental change in the law and such a fundamental change in the way that our system operates. It is worth nothing that this is a Government that will have a review to work out the colour of the Premier's tie. This is a Government that has seven reviews in my portfolio of local government. The Government is spending millions of taxpayers' dollars on endless reviews. However, we have had not one review or inquiry, or anything of that nature, to deal in depth with this legislation.

                    This bill appears to me to be the product of a Hollow Man moment. It seems to have been dreamt up by—who knows—some spin doctor the Government has pulled out of its back pocket to deal with a particular stage of a political debate. It is surprising that Liberal members, the libertarians of the party room and those who howl about individual freedoms have allowed this legislation to pass the party room without proper analysis or consideration. Let us state what it is: This is about cheap headlines. It is cheap politics. The bill represents an attempt to fix a crisis by cheap political stunts.

                    The Hon. Dr Peter Phelps: What hypocrisy.

                    The Hon. SOPHIE COTSIS: I would not speak, if I were the Hon. Dr Peter Phelps.

                    The Hon. Dr Peter Phelps: You hypocrite.

                    The Hon. SOPHIE COTSIS: Mate, you are not doing your job.

                    The Hon. Dr Peter Phelps: You would sell your soul if Robbo said, "Go the other way."

                    The Hon. SOPHIE COTSIS: The Hon. Dr Peter Phelps is selling his soul through this legislation. The only review of any substance in this State on this topic was by the New South Wales Law Reform Commission in the year 2000. The commission comprehensively rejected the proposition that is now before this House. There is a plethora of reasons why abolishing the right to silence is a bad thing to do—not just in principle but in practical terms. At one level, if the bill is implemented, it will lead to an extraordinary lengthening of the trial process because a series of people will be giving evidence of why they were silent when they were asked questions.
                      The issue will become whether remaining silent was reasonable, whether it was appropriate and whether an inference should be drawn. If an inference is drawn, how will it be dealt with? In many trials that will be conducted under this legislative regime, those issues will be dealt with at some length. The Law Reform Commission has made it pretty clear that the majority of people already quite willingly answer questions asked by the police during interviews. If that is the case, one must be fairly sceptical about the types of change represented by this bill. On that point, I again cite material from the Bar Association, which states:
                          Research overseas indicates that where a suspect exercises their right to silence, this does not increase the likelihood of the suspect being charged, pleading guilty or being convicted.

                          A similar change to the right to silence in England has not led to any discernible increase in charges or convictions.

                          There have also been a number of successful appeals in the UK from procedural problems resulting from the new caution which raised the possibility that guilty people may go free as a result of the amendments. As a result, the new provision could well result in fewer, not more, convictions.

                      Before I conclude, I will cite an extract of a speech given to New South Wales Labor Lawyers in November 2012 by Mr Samuel Pararajasingham, who is a criminal law barrister. He referred to this bill and stated:
                          Now, as it currently stands, section 89 of the Evidence Act essentially provides that no unfavourable inference can be drawn from an accused person remaining silent during the course of an investigation. … a person can exercise a right to silence on arrest and the fact of that silence cannot be used against him or her in criminal proceedings.

                          The proposed amendment by the … Government does not just attenuate this right to silence, it completely abrogates it.

                          The proposed amendment essentially provides that where an accused person remains silent during the course of an investigation and then at trial raises some matter in his or her defence, an adverse inference can be drawn from the unreasonable failure of the accused person to raise that matter earlier.

                          Put another way, if a person exercises silence on arrest, the fact of that silence may be used against him or her.

                      Under the heading, "Reasons for the abrogation", Mr Pararajasingham stated:
                          Where such a foundational principle is being deliberately abrogated, you would expect the reasons for doing so to be nothing short of compelling.

                      Mr Pararajasingham lists three primary reasons offered by the State Government to justify the course that it has taken. The first reason is to prevent the prosecution from being taken by surprise at trial when an accused person raises a particular defence, which is a fallacy. A number of provisions in current criminal legislation compel defendants to put the prosecution on notice when they are running a particular defence. For example, there is no right to call alibi evidence unless the defence has given the prosecution notice in writing at least 42 days before trial. In a murder trial, when the defence proposes to rely on the partial defence of substantial impairment, it is required to serve on the Crown the particulars of the evidence that will be led. The District Court and the Supreme Court have a residual statutory power to order pre-trial disclosure which, if ordered, obligates the defence to disclose factual matters that are in dispute in advance of the trial.

                      The second justification given for abrogating the right to silence is the difficulty facing police officers investigating the recent spate of drive-by shootings in Sydney's west. The rationale appears to be that if one abrogates the right to silence people will have to come forward. Abrogating the right to silence will have no bearing on this issue as a person has a right to silence only when he or she has been charged with an offence. The proposed amendments do not address the concern expressed by the Government. The third reason that the O'Farrell Government put forward for curtailing the right to silence is that it will prevent hardened criminals from hiding behind what the Commissioner of Police called a wall of silence. The experience in the United Kingdom, which has implemented a similar proposal, shows that abrogating the right to silence has been ineffective in securing convictions. Opposition members oppose this legislation which we know to be a political stunt by this Government. I hope that all members oppose this legislation.

                      The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [5.21 p.m.], in reply: I thank members for their contributions to debate on the Evidence Amendment (Evidence of Silence) Bill 2013 and the (Criminal Procedure Amendment Mandatory Pre-trial Defence Disclosure) Bill 2013. In particular, I thank Opposition members who appear to have done a considerable amount of research in preparation for this debate.

                      The Hon. Sophie Cotsis: Are you joking?

                      The Hon. MICHAEL GALLACHER: Opposition members claimed that this legislation was being rushed through the Parliament. However, their historical references would indicate to any cursory reader of Hansard that they did a considerable amount of research in preparation for the debate which is entirely consistent with their decision to oppose this legislation. A number of members claimed that the right to silence was being abolished. Clearly, they have not read the bill properly. It is clear that people will still have the right to remain silent. This amendment does not abrogate the right to silence and it does not require or compel an answer to questions; that is very clear.

                      It is worth noting that the English legislation has been challenged in a number of appeal cases. The European Court of Human Rights found that some abrogation of the right to silence is permissible. Further, the English provisions have been found to be compatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The English provisions are widely used by prosecutors and are now an established part of the criminal justice process in England and Wales. They contain similar safeguards to the proposed amendments in New South Wales, such as the reasonableness test and the requirement for access to legal advice.

                      It has been suggested by the Deputy Leader of the Opposition that the mere presence of a solicitor is required and that the bill requires nothing further, which is incorrect. The Deputy Leader of the Opposition should read the bills. Before an inference can be drawn against a defendant at trial, the prosecution will have to establish that the defendant was in the presence of his or her legal representative and offered a reasonable opportunity to consult with that representative in private about the likely consequences of failing to mention a fact during questioning. The opportunity to consult must have been given before the defendant failed or refused to mention the relevant fact.

                      It should be noted that the provisions are triggered only when a lawyer is at the police station with his or her client and is able to speak to that client in private. Being given an opportunity to talk to a lawyer over the telephone or communicate by other electronic means will not be enough to satisfy this requirement. Mr David Shoebridge claimed that the right to silence amendments would impact chiefly on vulnerable people when in fact these provisions are targeted at more serious criminals who choose to frustrate the criminal justice process. Exemptions are in place to protect those who may be vulnerable when being questioned about their involvement in an alleged serious indictable offence. They apply to those who are under 18 years of age and those who are incapable of understanding the general nature and effect of the special caution. The incapable person test is familiar to the police, as it is currently used to assess whether a person is capable of giving informed consent to the carrying out of a forensic procedure.

                      The provisions do not remove current protections for other vulnerable persons in police detention, such as requirements for assistance from a non-qualified support person during interview and access to the Aboriginal Legal Service telephone advice line. The Evidence Amendment (Evidence of Silence) Bill 2013 makes amendments to the Evidence Act 1995 to allow unfavourable inferences to be drawn against certain accused persons who seek to rely on facts at trial that they did not mention during questioning by the police. It includes safeguards to protect persons under the age of 18 years, those not capable of understanding the nature and effect of the special caution and those who do not have a lawyer present with them at the police station. It also requires the giving of a special caution that explains to the suspect the possible consequences of failing or refusing to mention a fact later relied on.

                      The Criminal Procedure (Mandatory Pre-Trial Defence Disclosure) Bill 2013 makes amendments to the case management provisions in the Criminal Procedure Act to expand the scope of pre-trial mandatory disclosure requirements. The bill also makes a provision for unfavourable inferences to be drawn against an accused person who fails to comply with his or her pre-trial disclosure obligations. It includes safeguards to prevent an inference from being drawn when it is the only evidence that the accused is guilty of the offence charged and where the prosecution has failed to meet its disclosure obligations under the Act. The bills will encourage the effective and efficient case management of criminal trials by encouraging the parties to identify defences and issues in dispute as early as possible in the criminal justice process. That will contribute to the smooth running of trials in the State and therefore improve justice for all. I wholeheartedly commend the bills to the House.

                      Question—That these bills be now read a second time—put.

                      The House divided.
                      Ayes, 21
                          Mr Ajaka
                          Mr Blair
                          Mr Borsak
                          Mr Brown
                          Mr Clarke
                          Ms Cusack
                          Ms Ficarra
                          Mr Gallacher
                          Miss Gardiner
                          Mr Gay
                          Mr Green
                          Mr Khan
                          Mr Lynn
                          Mr MacDonald
                          Mrs Maclaren-Jones
                          Mr Mason-Cox
                          Mrs Mitchell
                          Mrs Pavey
                          Mr Pearce


                          Tellers,
                          Mr Colless
                          Dr Phelps
                      Noes, 19
                          Ms Barham
                          Mr Buckingham
                          Ms Cotsis
                          Mr Donnelly
                          Ms Faehrmann
                          Mr Foley
                          Dr Kaye
                          Mr Moselmane
                          Mr Primrose
                          Mr Roozendaal
                          Mr Searle
                          Mr Secord
                          Ms Sharpe
                          Mr Shoebridge
                          Mr Veitch
                          Ms Westwood
                          Mr Whan

                          Tellers,
                          Ms Fazio
                          Ms Voltz
                      Question resolved in the affirmative.
                        Motion agreed to.
                          Bills read a second time.

                          Leave granted to proceed to the third reading of the bills forthwith.
                          Third Reading
                            The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [5.35 p.m.]: I move:

                                That these bills be now read a third time.
                            Question put.
                              The House divided.
                                Ayes, 22
                                Mr Ajaka
                                Mr Blair
                                Mr Borsak
                                Mr Brown
                                Mr Clarke
                                Ms Cusack
                                Ms Ficarra
                                Mr Gallacher
                                Miss Gardiner
                                Mr Gay
                                Mr Green
                                Mr Khan
                                Mr Lynn
                                Mr MacDonald
                                Mrs Maclaren-Jones
                                Mr Mason-Cox
                                Mrs Mitchell
                                Reverend Nile
                                Mrs Pavey
                                Mr Pearce

                                Tellers,
                                Mr Colless
                                Dr Phelps

                                Noes, 19
                                Ms Barham
                                Mr Buckingham
                                Ms Cotsis
                                Mr Donnelly
                                Ms Faehrmann
                                Mr Foley
                                Dr Kaye
                                Mr Moselmane
                                Mr Primrose
                                Mr Roozendaal
                                Mr Searle
                                Mr Secord
                                Ms Sharpe
                                Mr Shoebridge
                                Mr Veitch
                                Ms Westwood
                                Mr Whan

                                Tellers,
                                Ms Fazio
                                Ms Voltz
                                Question resolved in the affirmative.
                                  Motion agreed to.
                                    Bills read a third time and returned to the Legislative Assembly without amendment.