To Suffer in Silence? The Dangers of Legal Visits & Cooperation on Arrest

July 23, 2015

Character with finger held to lips

Given the recent media attention to the push towards law reform in this area, and the fact that it is something we regularly consider in criminal matters, we thought we’d throw out a few tips on the lesser known dangers associated with legal representation immediately following a charge, and general cooperation with Police.

We preface this post by making it clear that we are by no means advocating any approach that makes things unnecessarily difficult for law enforcement officers, that abuses process or that provides escape routes for those that are guilty and truly deserving of punishment. However, we also recognise that it is true and proper that everyone is entitled to a competent defence, and it is for the prosecution to make out the case it alleges, while a defendant is entitled to test that case.

In what some might consider an unintended or perverse outcome, the Evidence Act 1995 (NSW) was amended in 2013 to introduce s 89A and to reword s 89. The effect is that, while there used to be a right to silence without consequence, that no longer exists in some circumstances. More specifically, prior to the amendments, a Court could not draw any adverse inference (form a negative view regarding a defendant) from a defendant’s failure to answer questions or respond to representations put to them by an investigating official (such as a Police officer) during their investigation. Now, in cases of serious indictable offences, where a particular caution is given to the defendant by that investigating official, in the presence of an Australian legal practitioner (a lawyer), and in circumstances where the defendant had been given a reasonable opportunity to consult with such a practitioner and receive adequate advice, if the defendant could reasonably have been expected to answer or provide certain relevant information, and that defendant seeks to rely upon that information in their defence, such an inference can now be drawn.

In simple terms, if your lawyer turns up at the Police station when you have been charged, you are cautioned and had the ability to obtain advice, you kept silent and later raised issues at trial that were closely relevant to the questions you were asked by Police, the Court can now find that, in doing so, you may have been hiding something, for example. Such inferences can have significant impacts on your defence, and especially in relation to your credibility in the face of conflicting versions of events. Ultimately, it could mean the difference between guilt and innocence.

A common theme of the recent media attention has been complaints by Police and others regarding increased investigation times and the other strains this places on the legal system and the trial process. In addition, as NSW does not have the budget of other States, there are generally no legal practitioners at Police stations to hear the cautions and provide the advice, so the operation of the legislation has relied on the private lawyers of defendants, who simply don’t show up for this very reason. What this means is that any amendments may be even stricter, but that is a matter for a different post, and is only speculation at this point.

For our purposes here, the point is that, if your lawyer doesn’t show up to the Police station or the holding cells, there may be good reason. This is particularly relevant in the case of an accused who has been taken into custody and refused bail under the relatively new show cause rules (a topic for another post, coming soon). Typically, and especially for first offenders, they will be stressed and afraid, and desperate for their lawyer to see them. In most such cases, the defendant will not have met the lawyer before, and may be left wondering if they will ever turn up, or whether they should urgently call someone else, which is understandable. However, it should be remembered that, for the above reasons, it could prove much better in the long run to wait for their legal visit, even if this means it comes a few days after being in custody.

In those circumstances, the temptation may be there to cooperate with Police by giving interviews and so forth. However, and not to discredit either defendants or Police, for obvious reasons, sometimes defendants will inadvertently say things that are damaging to their case, even if innocent and well-intentioned, and other times investigators may not be completely upfront and straightforward with a defendant. As such, it is always better to keep quiet. While cooperation is a relevant factor in sentencing, it is only one of a myriad of factors taken into account, and so it not the be all and end all. Also, a good lawyer will be able to make matters known to Police at a later stage if appropriate, and still use this cooperation to your advantage. In some cases, a good lawyer will be able to use some information skillfully in negotiating a withdrawal or substitution of your charge, or even the amendment of alleged facts that are prejudicial to you.

At the end of the day, in our view, more often than not, you should sit tight and wait to speak with your lawyer until well after you have left the Police station. If that means until you are in remand, then so be it. If a phone call is possible, great, but don’t be in a rush to get someone to the station. In the meantime, sit tight and don’t say anything until you have received competent advice. This will not necessarily work against you at all, and may actually save you. There are many steps that can be taken during the investigation and trial processes to compensate for any delays or initial refusals to offer up information that may have occurred. Get someone on the outside who is well-organised and trustworthy to deal with your lawyer for you, and all should be well.

As always, we are available to assist with any related problems, so feel free to contact us at any time.


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