Changes announced by New South Wales premier Barry O’Farrell may endanger the right to silence, writes Mary Anne Ghobrial.

NSW Premier Barry O'Farrell. Photo courtesy: Local Government and Shire Association of NSW

Under draft legislation, defendants could risk harming their defence in court if they do not give police information during questioning.

The change proposed by the O’Farrell Coalition government will be implemented in October.

Professor of law at the University of New South Wales, Jill Hunter, says amendment could mean assumptions are made when the right to silence is used.

Ms Hunter said: “[This bill] makes it possible for an inference to be drawn when a person refuses to disclose information they later rely on in court.”

Under the current legislation, jurors and prosecutors cannot draw negative conclusions if defendants refuse to speak to police.

However, under the new legislation, jurors will be able to draw negative inferences if defendants do not reveal information during police questioning.

While critics of the bill believe the changes would mean a loss of human rights, police officials say change is essential when criminals exploit the justice process.

According to Mike Gallacher, the NSW police minister: “The right to silence can be exploited by criminals, and failing to answer police can impede investigations.”

However Ms Hunter said that the legislation, “Could impact on the vulnerable people who are just caught up in the mire of the legislation.”

Although disabled individuals will not be affected by this amendment change, Ms Hunter still asserts that altering the right to silence could have potential consequences.

Barrister Richard Jankowski also believes changing the Evidence Act would be unfair for defendants. He says there are a number of psychological factors that could impact individuals when interviewed by police.

“As I understand it, a person who is arrested is at a great disadvantage when confronted with two police officers in a room with a microphone and camera and asked to answer questions,” Mr Jankowski said.

While he admits the draft legislation will make police jobs easier, he also says implementing this law could indirectly alter the prosecution’s responsibility to prove a charge beyond reasonable doubt.

According to Jankowski, forcing an accused person to answer police questions, and penalising them if they do not, hinders a person’s right to a fair trial.

“And to take away a person’s rights, or to create a situation where a person may be incriminating themselves . . . is a sad day for our criminal justice system,” he said.