Last year, we wrote an article in relation to some serious changes to your right to silence. Historically, the right to silence has been one of the cornerstones of our criminal justice system.

One of the main reasons for the existence of this right is the fact that people under investigation are often vulnerable either because of their background or alternatively because of the amount of pressure that may be applied to them to answer questions. One of the other problems is the fact that not all officials act properly or fairly when carrying out their investigations.

In NSW, the Government introduced changes to the law, making a significant impact upon this protection. Instead of having a right to remain silent, the law has been changed to require people who are at Police Stations with their lawyer to be given a “special caution”. This has the effect of requiring an accused person to provide information to investigating authorities or risk being prevented from relying upon that information later at Court as part of their defence.

In countries such as the United Kingdom, the right to silence has been removed, however, there is a balance in that system because an accused person has immediate access to legal advice- this additional protection will not be available in NSW. In fact, it may not be a good idea to attend the Police Station with a lawyer. Of course, there is already legislation requiring people to provide the information they are requesting. Common examples of this occurring are in connection with traffic and driving offences.

Now that this law has come into effect, it will be necessary for a person accused of a crime to have access to specialist legal advice quickly. Decisions in relation to whether or not to participate in a recorded interview and or whether to agree to forensic procedures will have to be made at the time of arrest and probably with legal assistance being provided by telephone as the new laws require a “special caution” to be given when a lawyer is actually present at the Police Station. Whilst remaining silent has not always been the best advice after a person has been arrested, it may not be the only real option for a person who has been accused of a criminal offence.

Warwick Anderson is an Accredited Specialist in Criminal Law with experience as a qualified Detective, Police Prosecutor and almost twenty years as a criminal defence lawyer.

If you have been arrested or need urgent legal advice, Warwick is available for your assistance on (02) 0414 587 200.

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