2012 submission cctv code of practice

8/13/2019 2012 Submission CCTV Code of Practice

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NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000Phone: 02 8090 2952 Fax: 02 8580 4633Email: [email protected] Website: www.nswccl.org.au

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The New South Wales Council for Civil Liberties (CCL) is one of Australias leading human

rights and civil liberties organisations. Founded in 1963, NSWCCL is a non-political, non-religious and non-sectarian organisation that champions the rights of all to express their

views and beliefs without suppression. To this end the NSWCCL attempts to influence public

debate and government policy on a range of human rights issues by preparing submissions to

parliament and other relevant bodies. CCL is a Non-Government Organisation (NGO) in

Special Consultative Status with the Economic and Social Council of the United Nations, by

resolution 2006/221 (21 July 2006).

Submission concerning the draft of the Evidence Amendment (Evidence of Silence) Bill 2012

We are appreciative of the invitation to comment on the exposure draft

1. An irrational proposition: that silence implies guilt or prevarication.

!he proposed bill "ill abolish the right of an accused person to decline to ans"er #uestions b$ police

"ithout an$ adverse inferences being dra"n in a subse#uent trial b$ the prosecution or the court

!he abolition "ill appl$ to all serious indictable offences%those "ith five&$ear 'ail sentences1 !he

olice Association supposes that the change is common sense

Well it ma$ be a commonl$ held vie" But it is not good sense

As the *e" South Wales +a" ,eform -ommission argued

!he crucial #uestion is "hether an inference of guilt or of recent fabrication should

rationall$ be dra"n from the failure to ma.e timel$ disclosure !he failure to ma.e

timel$ mention of a matter might "ell reflect on "hether the later assertion "as true

!he true issue is "hether or not the explanation for that failure "asin facta

consciousness of guilt Even if the defendant acted completel$ unreasonabl$ if he or

she "as not motivated b$ a consciousness of guilt the silence is irrelevant/ it proves

nothing2 Emphasis in original

n other "ords for prosecutors or 'udges to impl$ that the silence of the accused under #uestioning

b$ itself thro"s doubt on the veracit$ of testimon$ or supports his or her guilt of the accused "ould

be to use irrational or deliberatel$ invalid argument As argued belo" there are man$ other

reasons "h$ a person might fail to mention a fact that the defence later relies upon

1The vast majority of offences.

2New South Wales Law Reform Commission, Report ! "2###$ at 2.111.


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2. The foundation of the right to silence.

3undamentall$ the right to silence is implied b$ the assumption of innocence and its corollar$ the

obligation of the prosecution to prove its case be$ond reasonable doubt !o compel a defendant to

spea. on the penalt$ of suffering adverse comment to a 'ur$ is to re#uire the accused to prove at

least partiall$ their innocence An attac. on the right to silence is an attac. on the fundamental

principles of criminal la"

3. The findings of the Law Reform Commission.

n its in#uir$ into the right to silence in the *e" South Wales +a" ,eform -ommission found/

2145 6the -ommission has concluded that it is not appropriate to #ualif$ the right to

silence in the "a$ provided b$ the English and Singapore legislation !he -ommission

considers the right to silence is an important corollar$ of the fundamental re#uirement

that the prosecution bears the onus of proof and a necessar$ protection for suspects

ts modification along the lines provided for in the England and Wales and Singapore

"ould in the -ommission7s vie" undermine fundamental principles concerning the

appropriate relationship bet"een the po"ers of the State on the one hand and the

libert$ of the citi8en on the other exacerbated b$ its tendenc$ to substitute trial in the

police station for trial b$ a court of la" !here are also logical and practical ob'ections to

the English provisions An examination of the empirical data moreover,does not

support the argument that the right to silence is "idel$ exploited b$ guilt$ suspects as

distinct from innocent ones or the argument that it impedes the prosecution or

conviction of offenders4

. The failure of arguments supporting the change.

,ights that have been accepted for a long period should not be removed unless there is evidence

that the$ are leading to in'ustice%and that their removal "ill not create "orse in'ustice !he

arguments in favour of the change are not good And there "ill be more false convictions if thechange is adopted Although in drafting the bill there has been an attempt to ensure that people are

informed of "hat "ill happen if the$ do not tell the police of an$ defence the$ subse#uentl$ appeal

to that "ill not be enough to prevent serious harms arising "ith significant financial cost to the

State

%New South Wales Law Reform Commission, Report ! "2###$ at 2.1%&


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i. The bikie cone of silence.

!he remier and the Attorne$ 9eneral have given one .ind of example the :bi.ie cone of silence;

"here it is asserted that there have been problems n order to tr$ and brea. that silence it is

proposed to distort the trial process "ith the near certaint$ of false convictions

But the belief that removing the right to silence "ill overcome that problem is almost certainl$

mista.en !he mischief that the proposed changes are meant to attac. is a supposed barrier to

investigating crimes against thirdparties< it is the reluctance of a club=gang member to become a

police informer t is not a matter of charges against the person "ho remains mute !he proposed

changes do not challenge the >bi.ie cone of silence>< the$ do not force the reluctant police informer

to accuse his friends eople "ho are not influenced b$ the section 41? of the -rimes Act

(concealing a serious indictable offence) "ho from a mista.en sense of lo$alt$ or fear of theconse#uences "ill not tal. about "hat their fello" club=gang members have done are not li.el$ to

change their minds for fear of "hat "ill happen "hen the$ themselves are in court

ii. Ambush of the prosecution.

t has been claimed that criminals can use the right to silence to ambush the prosecution case%

presenting an alibi or other defence for the first time during their trial "hen it is too late for the

police to collect countervailing evidence

t is true that at present under section 5@ of the Evidence Act neither a 'udge nor the prosecutioncan impl$ that evidence presented in court is dubious or that it implies guilt on the ground that the

accused did not produce it during pre&trial #uestioning b$ police

But on the one hand a defendant "ho has an alibi is re#uired to produce it at the committal

hearing%if this is not done adverse inferences can and "ill be dra"n< or the evidence ma$ be

re'ected entirel$ And on the other even if the la" is changed experienced defendants could sa$

nothing before their trials but then dismiss their la"$ers and claim to have been badl$ advised%

hence "ith ne" la"$ers the$ are producing their defences

!he real potential for ambush is that of a defendant and it lies in the "a$ that olice "ould

intervie" a suspect t is not a stretch to imagine that olice "ould be ver$ economical "ith the

facts so that a suspect "ould have little in.ling of the significance of an ans"er to a particular

#uestion f there is an$ "eight to the olice Association>s vie" that suspects should reveal their

"hole defences "hile being #uestioned the corollar$ "ould seem to be that the olice should be

e#uall$ as forthcoming and ma.e a complete disclosure to the suspect of the facts that are at hand

!o do other"ise "ould be to consign a suspect to a af.aes#ue ma8e that is designed to render a

suspect confused and vulnerable !here have been too man$ sad cases "here olice have ta.en

advantage of intellectuall$ challenged persons< that same sense of be"ilderment is "hat "ould

confront a suspect "ho is full$ competent if the changes "ere implemented


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iii. The view that silence suggests guilt.

t is also contended that onl$ criminals "ould refuse to ans"er #uestions%an innocent person

"ould den$ police accusations and offer an explanation for circumstances "hich suggest guilt

But the supposition that onl$ a guilt$ person has a reason for not spea.ing freel$ to police is absurd

An arrest is often made in the small hours ("hen people are at home) 3or most it is the first time

the$ have encountered an$thing of the .ind eople ma$ confused upset or in shoc. An$one from

a culture "ere police are distrusted%including Aboriginal people but also man$ migrants%is li.el$

to resist #uestioning or to react badl$ "hen #uestioned !he$ ma$ be terrified especiall$ if the$

come from a countr$ "here a .noc. in the night commonl$ leads to disappearance and death

Aboriginal people as the ,o$al -ommission into Aboriginal people in custod$ found find custod$oppressive and are li.el$ to be amenable to suggestion especiall$ "e might add "here bail is a bait

An$bod$ ma$ be emotional panic.ed inarticulate or confused !he$ ma$ be affected b$ alcohol or

drugs

Cost people do not have enough .no"ledge of the la" to guide them as to "hether to admit to a

crime nor the conse#uences of doing so or "hat else to sa$ n these circumstances the$ are li.el$

to sa$ the "rong thing Also in the memories of man$ adults in *SW there is lodged the spectacle

of the Wood ,o$al -ommission ts findings did not engender confidence in the integrit$ of the *SW

olice 3orce An$ suspect in custod$ "ould not unreasonabl$ be suspicious of the olice process

and be reluctant to be totall$ fran.

eople ne"l$ arrested "ill have difficult$ in remembering the past clearl$ "ithout thin.ing about it

in calmer circumstances !he$ are li.el$ to give confused or conflicting ans"ers on "hich police "ill

pounce !he$ ma$ exaggerate or give partiall$ untrue ans"ers !he$ ma$ fail to mention matters

"hich "ould demonstrate their innocence because the$ are embarrassed or for reasons "hich have

nothing to do "ith the crime concerning "hich the$ are being #uestioned&to protect their partners

or children for example !he$ ma$ even admit to a crime in an attempt to protect their children or

spouses from suspicion olice ma$ pressure them into confession on promise of bail

!hose most vulnerable "ill be people "ho have not been loc.ed up before Alread$ there have

been cases "here suspects have confessed to crimes that the$ could not have committed !here

"ill be more false confessions and mista.en convictions

!hen there "ill be the usual conse#uences of people being put in prison

!he -ommission also comments in similar fashion on these matters as follo"s/

'

They may for instance assert what they thin( musthave )een the case, rather thanwhat they remem)er.


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Reasons for silence consistent with innocence

211D Can$ submissions and commentators challenged the vie" outlined in paragraph

2?1 above that an innocent suspect "ould al"a$s den$ an accusation levelled b$ the

police and offer an explanation for the circumstances or conduct "hich created the

suspicion o"ever there are a number of considerations that might lead a person not

to spea. at all or unguardedl$ to police "hen he or she is suspected or accused of

committing a crime ersons in such a position might "ell of course "ish immediatel$

to exculpate themselves but there is no reason to suppose that all innocent persons

"ould adopt this approach

211? t is reasonable that innocent persons faced "ith a serious accusation might "ishto consider their situations carefull$ before ma.ing an$ disclosure especiall$ "here the

circumstances appear suspicious but it cannot be assumed that the$ are rational and

articulate n man$ cases suspects ma$ be emotional perhaps panic.ed inarticulate

unintelligent easil$ influenced confused or frightened or a combination of these !he$

ma$ be unable to do themselves 'ustice Such persons ma$ be "ell advised to hold

their peace at least at an earl$ stage !he$ ma$ of course have something to hide but

that something ma$ simpl$ be shameful and not a crime or it ma$ implicate others for

"hom the$ feel responsible !he supposition that onl$ a guilt$ person has a reason for

not spea.ing freel$ to investigating police is an unreasonable assumption

211FAttitudes towards police.Some suspects remain silent because the$ hold an

extremel$ negative uncooperative fearful or distrustful attitude to"ards the

investigating police or the police force in general !his vie" "as also expressed b$

several submissions and commentators

2115 Cultural characteristics -ultural characteristics ma$ also influence "hether an

innocent suspect remains silent "hen #uestioned b$ police t is clear that Aboriginal

suspects are more li.el$ to ans"er police #uestions than the general population !his

has led to the creation of specific rules regulating police #uestioning of Aborigines inseveral 'urisdictions -ultural factors ma$ also lead suspects to remain silent 3or

example certain cultures discourage discussion of domestic abuse and sexual assault

t "as submitted that silence ma$ be a normal and positive communication in some

cultures in a "a$ "hich is not generall$ understood in *e" South Wales !he

-ommission accepts that some cultural factors ma$ "ell affect "hether a suspect

remains silent "hen #uestioned b$ police

211@ Personal characteristics.English research indicates that "omen are much more

li.el$ than men to ans"er police #uestions and that 'uveniles are more li.el$ than adult

suspects to respond to police #uestions Gne submission stated that a significant

problem "ith the Young Offenders Act 199(*SW) "hich provides for a s$stem of


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"arnings cautions and $outh 'ustice conferences as alternatives to the prosecution of

$oung offenders is that it effectivel$ precludes $oung suspects from rel$ing on the

right to silence because the$ are re#uired to ma.e admissions before being eligible to

be punished under the alternative regime "hich the Act establishes for indictable

offences

2120 ersonal characteristics such as mental disorders and illnesses intellectual and

developmental disabilities ac#uired brain in'uries and lo" intelligence ma.e it difficult

for suspects to communicate clearl$ "ith police "hen #uestioned !he ntellectual

Hisabilit$ ,ights Service stated in its submission that it is common practice for its

solicitors to advise suspects to remain silent during police #uestioning because of the

ris. of their clients giving inaccurate ans"ers and ma.ing false confessions Althoughunreliable confessions ma$ subse#uentl$ be successfull$ challenged this "ould not

ade#uatel$ protect suspects "ho spend time on remand or in custod$

2121 ,esearch conducted for the ,o$al -ommission on -riminal Iustice concluded that

the average J of suspects #uestioned "as in the bottom DK of the general population

,esearch carried out for the -ommission in 1@@D revealed that 24K of persons "ho

appear in *e" South Wales +ocal -ourts have either an intellectual disabilit$ or a

borderline intellectual disabilit$

2122 !hese characteristics also affect suspects7 abilit$ to understand or exercise other

rights "hen #uestioned b$ police including the right to a support person to legal

advice and "here re#uired to an interpreter !his clearl$ compounds the problems

discussed above

2124 Communication factors.*umerous other factors also affect the abilit$ of

suspects to communicate "ith police !hese include language s.ills and education

levels A suspect7s abilit$ to communicate ma$ also be compromised b$ the effects of

alcohol and other drugs A suspect "ho is arrested late at night is li.el$ to be tired and

disoriented

212 Police disclosure.3re#uentl$ the police investigation "ill be developing and

incomplete at the time the suspect is intervie"ed !he matters being put to him or her

ma$ "ell therefore be vague confused or "rong !he police ma$ not reveal enough

detail about the allegations to enable the suspect to ans"er or to "arrant explanation

+ac. of police disclosure "as the most fre#uent reason for advising clients to remain

silent reported b$ defence la"$ers "ho participated in the -ommission7s surve$ for

this reference Can$ la"$ers noted that this advice "as often a temporar$ strateg$

pending disclosure b$ investigating police of more information A recent stud$ of

English solicitors advising suspects in the light of the amendments to the la" in

England also concluded that this is a common reason for legal advice to remain silent


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!he English -ourt of Appeal has held that the extent of police disclosure of the

evidence against the suspect is a factor "hich the 'ur$ should consider in assessing the

reasonableness of legal advice to the suspect to remain silent !his exposes $et another

issue that ma$ be sub'ect to extensive litigation at the trial

212D Protection of or fear of others.!he desire to protect others particularl$ famil$

members and friends "hom the suspect .no"s or believes is or ma$ be responsible for

or involved in the offences concerned is another reason for silence "hich is consistent

"ith innocence n a research stud$ conducted for the ,o$al -ommission on -riminal

Iustice at least 12K of suspects exercised the right to silence for this reason

Alternativel$ a suspect ma$ remain silent for fear of being labelled a police informer or

for fear of reprisal b$ the offender

212? Other reasons.n other situations police ma$ as. the suspect ver$ specific

#uestions aboutevents "hich allegedl$ occurred man$ $ears ago or "hilst the suspect

"as intoxicated or other"ise distracted "hich place unrealistic demands on the

suspect7s memor$ !he suspect ma$ feel unable to sort out the facts or fear ma.ing a

mista.e due to the pressure of police #uestioning !he suspect ma$ reasonabl$ "ant to

thin. about the circumstances refresh his or her memor$ or obtain legal advice A

suspect ma$ decline to ans"er police #uestions in order to conceal conduct of "hich

he or she is embarrassed or ashamed to conceal illegal behaviour "hich is not under

investigation or merel$ due to shoc. and confusion at the allegations

212F Gne submission argued that the defendant has the opportunit$ to tell the court

at trial the reasons for remaining silent "hen #uestioned b$ police !he *e" South

Wales olice Service even argued in favour of a regime "here the 'udge or magistrate

could re#uire the defence to explain "h$ the defendant exercised the right to silence

"hen #uestioned b$ police Such a re#uirement "ould involve abolition rather than

modification of the right of silence and is not 'ustified

2125 Can$ of the reasons for remaining silent "hen #uestioned b$ police are alsorelevant to the decision not to give evidence at trial n addition man$ of the reasons

for silence discussed above involve complex considerations "hich ma$ not be readil$

understood b$ 'uries in the absence of expert ps$chological or sociological evidence

-onversel$ some of these reasons ma$ pre&dispose a 'ur$ to over&empathising "ith the

defendant t must be borne in mind that the trial is about the guilt or other"ise of the

defendant< "hat did or did not occur at the police station is ver$ much a secondar$

issue

212@ 3inall$ as Iustice Smith of the Supreme -ourt of Lictoria has pointed out to

dra" adverse inferences from silence on police #uestioning in the absence of

explanation b$ the defendant places him or her under considerable pressure to give


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evidence at trial in order to provide an explanation for exercising the right to silence

"hen #uestioned b$ police

!he -ommission also arguedDthat if the right to silence "ere removed accused people "ould

probabl$ be forced to get into the "itness box and Mif the suspect be $our t$pical suspect "ould be

no match for a reasonabl$ competent prosecutor even if he or she be innocent7 M!his ma$ be an

unstated aim of those "ho "ould argue for change N that is in effect to compel accused persons to

give evidence7

!hose least vulnerable "ill be career criminals

!. "roviding legal advice.

t is true that in the Onited ingdom the -riminal Iustice and ublic Grder Act 1@@ provided that a

court ma$ dra" adverse inference from a failure to mention an$ fact relied upon b$ the defence if

that matter could have reasonabl$ been mentioned to the investigating police officer But in the

Onited ingdom a dut$ solicitor is available at ever$ police station to dra" the charges and to

supervise the disclosure of the case before intervie"s are re#uired t is true the bill re#uires that a

solicitor7s advice is to be obtained b$ telephone if necessar$ about the need to ans"er #uestions

Pet it is clear from the above arguments that more advice is needed than can be given over the

telephone !he bill does not even re#uire that the accused person understand the caution< not that

he or she ac.no"ledge that it is understood

!here is apparentl$ no intention of introducing the full O scheme here And the Onited ingdom

has its Bill of ,ights and is sub'ect to the European -ourt of Iustice

B$ contrast there is no Bill of ,ights in Australia and the assistance of a solicitor is expensive ere a

solicitor costs Q400 and hour%so onl$ "ealth$ people can afford to get one out of bed (Hrug lords

"ould have no problem) Worse no solicitor is available in remote districts Can$ to"ns are hours7

drive a"a$ from solicitors%-obar Wilcannia and Bre"arrina for example olice moreover have a

habit of discouraging people from seeing advice from la"$ers before or "hile the$ are #uestioned!he$ are also .no"n to #uestion suspects at times "hen no la"$er is available

f those "hom police #uestion are to be denied the right to silence then a legal practitioner should

be provided at government expense throughout the #uestioning t should be re#uired that the

practitioner be one "ith experience in the criminal la" But even an experienced criminal la"$er

could not properl$ advise unless he=she .ne" the circumstances of the case alleged and thus the

potential importance of a particular RfactR

!at 2.12


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Where such support is not provided police records of intervie" should not be acceptable as

evidence

#. The costs.

Attempting to avoid false convictions under the proposed regime "ill mean longer trials as the +a"

,eform -ommission argued

2114 What happened in the police station is a fre#uent sub'ect of evidence Since the

'ur$ must consider "hether it is fair to use the defendant7s silence adversel$ it is

necessar$ that the$ be given a complete picture of the relevant surrounding

circumstances concerning not onl$ communications "ith the police but also thedefendant7s situation !his introduces a substantial area of time consuming disputation

"hich "ill be almost certainl$ peripheral to the real issues in the case for ver$ marginal

gain

Gne of the concomitant problems N to name but one N is that it has to be evaluated b$

the 'ur$ ver$ much second&hand As an$one "ith an$ experience .no"s even "ith

complete candour b$ all parties and the best "ill in the "orld the version of events that

comes to be presented in -ourt is edited not onl$ b$ limits of understanding

perception and recollection but b$ the trial process itself sometimes #uite mar.edl$

and unrealisticall$ and indeed unfairl$ to both the police and the defence n man$

cases this does not matter but in man$ it "ill

!he proposed change then "ill not lead to the truth being discovered t "ill not brea. the resolve of

people "ho from a mista.en sense of lo$alt$ or fear of the conse#uences refuse to :rat; upon their

mates !he :bi.ie cone of silence; "ill not be bro.en b$ this proposed la" "hatever its proponents

sa$

But there "ill instead be mista.en convictions on the basis of false confessions or inade#uate

confused ans"ers to #uestions

Where false convictions are recorded the communit$ "ill be the poorer for innocent people

spending time in 'ail !here "ill be further costs in the efforts to get those convictions reversed

Cost seriousl$ respect for the la" and the rule of la" "ill be eroded

!he proposed change is not good sense

Cartin Bibb$

-onvenor the -ivil and ndigenous ,ights olice Securit$ and Antiterrorism o"ers and -riminal

Iustice Subcommittee


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D Cangiri ,d Beecroft

@54@?4

2012 submission cctv code of practice

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