Common Sense or Unnecessary Complexity? The Recent Change to the Right to Silence in New South Wales

The New South Wales government has now enacted section 89A of the Evidence Act 1995 (NSW), which will significantly amend the right to silence. The new provision allows courts in certain circumstances to draw unfavourable inferences from evidence of silence in criminal proceedings. Parliament has justified the legislation as a ‘common sense’ approach, intended to prevent offenders hiding behind a wall of silence. However the benefits of the legislation are expected to be minimal at best. Although critics have already put forward weighty theoretical arguments opposing the enactment of the new provision, how it will operate in New South Wales courts remains to be seen. This article will undertake a detailed comparative analysis, examining the operation of similar legislation in the United Kingdom to determine how section 89A might be interpreted and applied in New South Wales. This analysis suggests that the need for extensive and complicated jury directions, the problems in determining whether the provision is to be invoked at all, and the complex test used in deciding whether it was reasonable for the accused to remain silent, will create significant difficulties in the application of section 89A. It is contended that the number and seriousness of these difficulties, coupled with the only limited benefit (if any) to be derived from the section, justify the close monitoring of section 89A and its review at an appropriate time.