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Ending the right to silence

  • May 24th, 2008

I’ve long advocated ending the “so-called right to silence” (not my phrase – it belongs to former Court of Appeal judge Ted Thomas). But now the change is getting some serious acceptability testing.  

It is not like Sir Geoffrey Palmer to sit on the fence, unless he’s waiting for political instructions or political clearance.

So why is he waffling on? Why say “It is not a change that would happen quickly, but talking about it is not wrong” when he well knows that the change is simple and has been discussed to death. There is plenty of respectable legal support for ending a rule that has more to do with the notion of a trial as a game between counsel than a search for the truth.

Could this be a change he’s planned with his Labour patrons for anouncement later this year, intended to seem controversial, brave and forward looking? Has the Kahui case ended prematurely for political purposes?

Perhaps I’m giving to myself  more influence than I deserve, but it is possible that Russell Fairbrother will be working  through a range of reform suggestions I urged during my time in Parliament. He and Labour need to be seen to be more responsive to the Sensible Sentencing Trust (and incidentally to try to sink Russell’s reputation as a woolly woofter on crime).

I discussed the end of the right to silence with Russell as an example of an overdue reform. The “right” was effectively abolished years ago in the UK, well before the great rush of Blair criminal law changes. At my suggestion the Sensible Sentencing Trust had floated it as a desirable change. Now the Kahui trial has brought it to the fore.

I hope Garth McVicar does not let it die.

The change could be extremely simple. Despite its fearsome connotations, ending the right does not mean that an accused could be forced to answer questions (what would they use – the rack?).  

All it needs is statutory confirmation that a judge and jury can give whatever weight they think fit to the failure of an accused to give evidence, or to allow himslf to be cross-examined. The Sounds murder trial is an example. In my view the jury should have been able to have regard to Scott Watson’s willingness, or otherwise, to be questioned on the alternative theories his counsel put forward about his movements.

When the defence postulates hypothetical alternative explanations to incriminating circumstance, common sense says the accused is the only person who can know the truth, and best placed to clear up the uncertainty. His failure to give evidence in support, or in rebuttal of a competing hypothesis, and to submit to cross-examination on it, could be highly significant.

I have little respect for the organised criminal bar. They refuse to distinguish between rules that serve to protect the innocent from wrongful conviction, and those that are unjustifiable relics of  long ago hard cases when judges were trying to cement in a then contentious principle – that evidence obtained under duress was unreliable. 

Our justice system is truly insane, when it spends months trying 30 year old complaints, turning a blind eye to the grotesque risks in fitful and often warped memories of emotionally stressful events so far back, yet pretends alarm about pressure on an accused to answer personally to his accusers, on very recent events he knows better than anyone else in the Court. 

[25 May – For other views see Kiwiblog. ]


  • MikeE
  • May 25th, 2008
  • 7:51 pm

So how do you suggest we force people to speak if they choose not to do so?


it is true as he say Stephen,
the hardened amphetamine scum
they do not talk,
the police are weaker then scumbag
in this case,
what next,


also and it is different for Maori,
police cant do nothing

  • Jim Maclean
  • May 26th, 2008
  • 10:04 am

Mike E misses the point completely. There is no suggestion that people are “forced to speak” rather that the present charade where they can suggest all kinds of alternatives without the prosecution being allowed to question them on the stand about that.
Juries are having the truth skillfully hidden from them. Surely the truth is what Justice should be all about?

Jim Maclean

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