Review of the right of the silence

Reference received: ​1 August 1997


Report 95: The Right to Silence (PDF, 631.5 KB) [PDF, 636Kb], July 2000

Discussion paper

​Discussion Paper 41: ​​The right to silence, May 1998

Research report

Research Report 10: The Right to Silence and Pre-trial Disclosure in New South Wales (PDF, 772.7 KB), July 2000​

Terms of reference

To inquire into and report on the law relating to the right to silence in New South Wales, including but not limited to:

(i) whether such a right should exist at all;

(ii) if so, the nature of any inference that should be able to be drawn from the exercise of that right;

(iii) the operation of s 20 of the Evidence Act 1995 (NSW);

(iv) whether there should be any mandatory pre-trial or pre-hearing disclosure of the nature of the defence and of the evidence in support of that defence;

(v) if so, whether it should be possible to draw any inferences from the failure to disclose such defence or evidence, or the manner of such mandatory disclosure, or from any change in the nature of the defence or in the evidence in support of it;

(vi) the operation of the current mandatory defence disclosure provisions, including those in relation to alibi, and pursuant to the Evidence Act 1995 (NSW);

(vii) whether changes to the current position with regard to prosecution pre-trial disclosure are needed; and

(viii) any related matter.

In undertaking this reference, the Commission was directed to consider the position in other Australian jurisdictions and other common law jurisdictions throughout the world.

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We acknowledge Aboriginal people as the First Nations Peoples of NSW and pay our respects to Elders past, present and future. We acknowledge the ongoing connection Aboriginal people have to this land and recognise Aboriginal people as the original custodians of this land.

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