Right To Silence Reforms

‘Victoria should adopt reforms enacted in England which allow the jury to draw a strong adverse inference from a suspect’s exercise of the right to silence when questioned by police and permit the trial judge to direct the jury accordingly.’ Critically discuss.

The right to silence is a fundamental right that should not be curtailed in Victoria. The right itself consists of a collection of a complex set of rights, which involve a variety of procedural rules, seen as stemming from the protection against self-incrimination. The right operates in two different circumstances, as both a primary and secondary right, in that it protects an accused when being interviewed by police and also incidentally when at trial. Reforms that allow the jury
In other words, would following the lead of England and Wales result in more proper convictions of guilt or could it consequently lead to an increase in wrongful convictions? Although there are valid arguments, both for and against reforms to restrict the right of silence, the greatest issue faced when tackling the central question is that of empirical evidence. The first problem is definitional in nature; ‘silence’ itself is difficult to define. Should we adopt a general view of silence, where any silence during questioning, whether relevant or not and whether answered later or not constitutes a silence? Or should we restrict the definition to only include complete silence or silence on relevant facts or issues to the case? A further issue with evidence in a methodological way is the reliability of the data and the potential for bias. Furthermore, there are few Australian studies on the right to silence and thus we are heavily reliant on studies conducted in the United Kingdom, which in itself raises significant concerns on how such data correlates to Australian law and criminal case
The controversial move by New South Wales government to restrict the right of silence is one that undermines the foundation of the presumption of innocence and places the defendants in an inequitable position. The significant differences between the legal regimes make it necessary to avoid following the lead of our English counterparts. If Victoria are to look at restricting the right to silence, it must first be established that the accused are protected from the imbalance of the parties, by including safeguards similar to those that exist in England. Such protections must be substantial and be available, both at official questioning and at trial. Furthermore, investment into significant research to clearly gauge the potential effects of such proposed reforms, based on Australian case data, must be conducted. Just because the reforms may work in England and Wales, does not mean a one size fits all approach and the evaluation on the right to silence must be considered based on our common law principals, protections and procedures in