New laws regarding “special cautions” were introduced in September 2013, effectively removing the right to silence for those charged with serious criminal offences.

s 89A of the Evidence Act NSW permits unfavourable inferences to be drawn against a defendant who relies at trial upon a fact that was not mentioned at the time of questioning for the offence charged and where the defendant could reasonably have been expected to mention the fact in the circumstances existing at the time. Such inferences can only be drawn where the special caution is given to the defendant who has been provided with legal assistance in respect of the caution. In circumstances where there is no legal advice provided to the accused person at the time of the administration of the caution, those inferences cannot be made. The provision only applies to offences carrying a maximum penalty of life imprisonment or a term of imprisonment of five years or more.

This has lead the Criminal Lawyers (who actually understand s.89A) avoiding attending the Police station to assist and advise their client in the arrest and charge procedure. To put it simply, if a person charged with an applicable offence is not provided with legal advice as to the meaning of the the special caution, their omission/s cannot hurt their defence at trial.

Naturally, the Police have become very frustrated with the laws as a result. Police Association of NSW President Scott Weber said the “loophole” used by lawyers was extending the time of investigations and making things difficult for police.

“Police officers are extremely frustrated in regards to lawyers that are meant to defend offender’s rights not turning up and protracting​ the ongoing investigation when it’s not necessary,” Mr Weber said.

“This is a common occurrence and there needs to be a review of the current legislation and amendments, so that the intent of the legislation is utilised,” he said.

It would be hard to understand why any criminal defence lawyer would attend a police station to potentially advise their client that their fundamental right to silence was no longer, and that they were required to disclose certain information without even knowing the nature of the case and evidence against them. To do so would be professionally negligent, and could prove fatal to the client’s defence at trial.

It is ironic that when the laws were introduced, presumably to make the prosecution of serious crime more efficient and streamlining the trial process,  they were welcome with open arms by the NSW Police and met with opposition from the legal profession as a whole.

Criminal Defence Lawyers were generally met with a wintry reception when attending the Police station for their clients’ arrest. Now they are complaining that we are not coming.

You can’t win.