Silence Matters: A survey of the right to silence in the summary jurisdiction of New South Wales
- SAGE Publications
- Publication Type:
- Journal Article
- International Journal of Evidence and Proof, 2019, 24 (1), pp. 1 - 21 (21)
- Issue Date:
There is a scant existing literature on the relationship between the right to silence and its effect on securing prosecutions in Australia and comparable jurisdictions. Existing research has downplayed its significance, resulting in various ‘law and order’ interventions seeking to limit the operation of silence rights - first by the Thatcher and Major Governments in the UK in the early 1990s and recently, the O’Farrell and Baird Governments in New South Wales. This study is the largest of its kind, surveying over 350 files from three separate Legal Aid offices to empirically assess the frequency of the use of silence rights by criminal defendants and the effect of these rights on conviction within the summary jurisdiction of NSW. Contrary to the opinion of the existing literature, the findings of this study show that the use of silence rights, (the privilege against self-incrimination, in particular) does indeed matter for criminal defendants and the outcome of prosecutions. In fact, the exercise of the right to silence has a very strong relationship with rates of conviction as well as the mitigation of criminal sentencing. In making these findings, this study also illustrates how the right to silence and its legislative restriction impact more significantly upon marginalised social groups, overrepresented among the subjects of criminal law, within the summary jurisdiction.
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