Silence speaks
City Desk • Thursday, January 24, 2013 NSW's "evidence of silence" legislation and adverse inferences ... Attorney General clings to telephone advice as a safeguard ... The hotline model out of favour in Law & Justice Foundation findings ... The fundamentalism of pillars
Adverse inference THE O'Farrell Regime's move to sink the right to silence is still stuck in "consultation" mode.
This is a slight fiction because the government has no intention of back peddling on its Orwellian-sounding Evidence Amendment (Evidence of Silence) Bill 2012 regardless of what it is told in consultation.
This one is being driven by Police Minister Michael Gallacher because the coppers are frustrated at facing a wall of schtummness, particularly in the bikie-drive-by-shooting jurisdiction.
The draft Bill says that in proceedings for a criminal indictable offence judges and juries can draw an adverse inference against an accused who refuses to reveal material facts when questioned by the wallopers, and those facts are later relied on by the defence at trial.
Attorney General Smif thinks the right to silence is a "loophole":
"The NSW government is closing a legal loophole to stop criminals exploiting the system to avoid prosecution."
O'Farrell came up with a fetching seven second grab line:
"It's been too easy to say: 'I have nothing to say'."
Naturally, everyone is up-in-arms about this change to "a fundamental pillar of the rule of law".
The criminal law committee of the Law 'n' Order Society said, that in the majority of cases, solicitors will have to tell suspects that they cannot give advice.
Unlike the Poms, who removed the right to silence in 1994, we don't have the luxury of a Human Rights Act.
Smith trumpeted various "safeguards": the legislation doesn't apply to babes-in-arms or those under 18 or to anyone with a cognitive impairment; an accused cannot be convicted solely on the basis of an adverse inference; and an inference cannot be drawn at trial for failure to mention facts if the accused was not first given an opportunity to consult a lawyer.
There's the rub.
Smif things that a "telephone advice line" is sufficient for suspects held by police for questioning.
See answer to Dorothy Dix in parliament
The telephone advice model was criticised in a recent nationwide survey from the Law & Justice Foundation - a report that the AG cherry-picked to justify slicing dollars off socialist outfits like the Environmental Defenders Office so that he could "improve access to community legal services".
The Law & Justice Foundation's Australia wide survey on access to justice is just fine when it can dress-up a political exercise in shutting down legal challenges to coal seam gas exploration, but ignored when it comes to the shortcomings of "hotline" lawyers giving advice in emergency situations.
"Sole reliance on internet and telephone legal information and advice services may fall short of providing justice for all people … Internet and telephone services can be ineffective modes of delivering legal assistance for people with low levels of legal capability …
Legal hotline services should not be regarded as a stand-alone panacea."
Nothing beats face-to-face, so it seems.
The proposed new caution to be used by police is a cracker:
"You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?"
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A fundamental pillarTHERE'S nothing as shaky "fundamental pillar" of the rule of law.
This particular pillar was not a pillar until William Blackstone came along and made it one.
Justinian's columnists have opined about this matter over the years.
"Is it likely that a suspect who had a genuine alibi would tell detectives? And if he didn’t tell them, but claimed an alibi after he talked to a lawyer, is the alibi likely to be a fabrication?
In the real world, the answers must be 'Yes' to both, but when the NSW Police Association’s Peter Remfrey suggested that courts should be able to take appropriate inferences from the second, the chairlady of the NSW Law Society's criminal law committee, Pauline Wright, jumped on him with the full force of her stiletto heels."
The "right" to silence was a little twist peddled by "probably the worst, and certainly the most dangerous, common-law academic, William Blackstone".
From the fourth century AD, canon law said that if you had done something wrong you don't have to accuse yourself, but when sprung you must explain, if you can.
Later, Justice Sir James Dyer said it was canon law that you don't have to accuse yourself, full stop. Whitton observed:
"Dyer's lie was so obvious that subsequent accused could not and did not claim a 'right' of silence, but ex-barrister Blackstone falsely asserted in his Commentaries (1765-69) that it was the common law that you don't have to accuse yourself.
Blackstone's lie was nice for criminals and for his former colleagues who were then on the way to 'capturing' the criminal process and thus inventing the criminal adversary system."
In 2009 Tulkinghorn wrote about the economics of the right to silence.
"The right to silence is a spectacularly successful make business creation of the criminal defence lawyer fraternity ...
They needed something to sell and the 'privilege against self incrimination' is one of their most popular wares.
It caters to the 'guilty' client market segment.
The lawyers developed this product (as it would be called today) between 1770 and 1800 and the 'make business' results were spectacular.
The number of defence lawyers appearing in Old Bailey criminal cases rocketed from around two percent in 1770 to about 30 percent by 1800 ...
In practice an unrepresented defendant is not going to get far by saying to a jury:
'I might have done it but they haven't proved it and I don’t want to talk about it.'
A defendant needs to hire a lawyer to say it.
The right to silence is, in essence, a right to refuse to co-operate in a search for truth.
However, abolition of the right to silence is not about forcing people to speak. All it entails is giving courts the authority to infer what they like from a defendants’ silence."
So, evidence of silence is not without its supporters.
Maybe Smif is just trying to wind things back to the freshness of the fourth century's canon law when the real "fundamental pillar" rose skyward from the ground.
Sources ...
Evidence of Silence Bill - exposure draft
Submission from Greens Justice spokesman David Shoebridge
Law & Justice Foundation on telephone advice - A holistic approach to justice
Attorney General Smith - answer to question in parliament on right to silence
Right to silence
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