On 1 August 1997 the Attorney General, the Hon JW Shaw QC MLC, referred to the Commission a review of the law relating to the right to silence. In conducting the review, the Commission was directed to consider (but was not limited to consideration of) the following issues:
(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.
