Dr Eugene Schofield-Georgeson1
1University Of Technology Sydney (UTS), Broadway, Australia
There is a scant existing literature on the efficacy of the right to silence (privilege against self-incrimination) in securing successful prosecutions in Australia and comparable jurisdictions. Existing research has downplayed its significance, with one study going so far as to label this right, ‘a sacred cow’ – a time-honoured, technocratic and lawyerly fantasy of procedural fairness. These observations have resulted in various ‘law and order’ interventions seeking to limit its operation, first by the Thatcher and Major Governments in the UK in the early 1990s and recently, the O’Farrell and Baird Governments in NSW.
My recent research surveyed over 350 files from three separate Legal Aid offices to empirically assess the use of the right to silence by criminal defendants within the summary jurisdiction of NSW. No similar studies have been conducted in this jurisdiction. Contrary to the opinion outlined in the existing literature, the findings of this study show that the use of the privilege against self-incrimination does indeed matter for criminal defendants. 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. 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.
Eugene is a lecturer at UTS Law School and has practised criminal law for over ten years. He is the author of, ‘By What Authority? Criminal law in colonial NSW, 1788-1861’ (2018), a monograph tracing the evolution of fair trial rights in colonial Australia.