I heard that in NSW we no longer have a right to silence, is this correct?

Telemon Lawyers > FAQs > I heard that in NSW we no longer have a right to silence, is this correct?
"Three Wise Monkeys,Tosho-gu Shrine" by Michael Maggs - Own work. Licensed under CC BY-SA 2.5 via Wikimedia Commons
“Three Wise Monkeys, Tosho-gu Shrine” by Michael Maggs. Licensed under CC BY-SA 2.5 via Wikimedia Commons

As is common in the law, the answer is both “yes” and “no”!

The law has changed in respect of a “serious indictable offence”. A serious indictable offence is an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more (see Crimes Act 1900 (NSW), s 4).

Where you have been charged with a serious indictable offence, under the new Section 89A of the Evidence Act 1995 (NSW), “such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and that is relied on in his or her defence in that proceeding.”

The application of the law is not automatic. The accused must be given a “special caution” before any failure to mention a fact occurs, the special caution must be given in the presence of an Australian legal practitioner, and the accused must be allowed reasonable opportunity to discuss with their lawyer the effect of the special caution.

Legislation of a similar type has been enacted in England since 1994. Many commentators have seen this insertion of s 89A as an infringement on the basic rights to the accused in the criminal law (for example see here).