Guilty silence

Silence is at the top of the list for those who want to thwart a police investigation.

It is the first advice given by a lawyer to anyone who may have something to hide, it is standard advice in legal-advice pamphlets aimed at groups of people, it is drummed into Aboriginal people by Aboriginal-specific lawyers, it is at the heart of the bikies’ code and backed by a threat of extreme violence.

Nothing is more likely to prevent the police establishing the facts than those in possession of those facts remaining silent, and that’s the very reason lawyers and legal agencies promote silence in the face of police questioning.

Legal Aid NSW, for example, in a publication, Get street smart: Under 18s: know your legal rights, tells teenagers: ‘‘You do not have to answer police questions even if they: ask you to go to the station; question you on the spot; arrest you or not.’’ And a paragraph later, Legal Aid warns teenagers to always get legal advice before agreeing to take part in a police interview.

It is interesting that officers of the court, as are solicitors, and government-funded officers of the court, are driven to prevent the facts from being presented to a court rather than being driven to ensure the facts are presented to the court, but that’s the way our law has evolved over centuries. In our English-based legal system a court referees a point-scoring game between accuser and accused, whereas in some other countries a court’s purpose is to determine the truth.

While Police Commissioner Andrew Scipione describes the O’Farrell government’s plans to change the right to silence as a game-changer, justice will be a game still.

Under Mr O’Farrell’s proposed new law people will still have the right to remain silent, but police will warn them that they may have problems with a defence in court if they have not given that story in response to police questions. And, importantly, the new law will allow judges and juries to look poorly upon people who have remained silent in the face of police questioning. It may even require them to do so.

An alibi is a common example of information presented to a court but not given to the investigating police, and under the new law it will be open to the court to doubt the veracity of the alibi if it was not provided to police.

The UK has had this qualification of the right to silence for many years, and fans of television series The Bill will have heard a version of what is expected to be the new caution issued by the police to suspects. The statement that the person is not obliged to say anything will remain, and it will be followed by a warning that a defence they use in court may be harmed if they have withheld the information from police.

Why, in any event, must police issue a caution to people they’re about to question? For too long it has been part of the game that evidence, and often damning evidence, is ruled inadmissable because police did not issue the caution.

I cannot see why evidence should be ruled by a court to be inadmissable because it was gathered improperly or even illegally. Evidence is evidence – it should be tested for its veracity in the court – and those who gathered it improperly or illegally could, or should, stand before another court. There are many people in the Hunter who have escaped jail for very serious offences because damning evidence was rejected by the court for essentially procedural reasons.

It won’t surprise you that I believe the state government’s plans to tighten the right to silence don’t go far enough.

NSW police have the right to require a suspect to provide passwords to computers, mobile phones and other devices, and to refuse to do so is an offence. Formerly, in those instances, the suspect had the right to silence because the information might incriminate him, whereas now the suspect must provide the information because it might incriminate him.

So if people can be required to give up passwords, isn’t it reasonable that they be required to give up other information that would lead police to the truth? Or is that making the game unfair?

Should we have the right to silence? Is it anything more than a hiding place for the guilty?

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