Heath Aston | Sun Herald | 19 August 2012
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.