Right to remain silent??

[Jim Goose]

Ok I know this will turn into a slanging match about the powers that be.. so please try and keep it civil.

It seems that one state wants to remove your right to remain silent when your being interviewed???? or skewing it to make it look like your lieing???


http://www.smh.com.au/nsw/right-to-r...815-2484f.html

Right to remain not quite so silent: lawyers react

Date
August 15, 2012


Anna Patty
State Political Reporter


Innocent people will risk being made to appear guilty under the O'Farrell government's proposed new law to water down the right to remain silent, legal experts say.

The new law would only apply to people arrested for an alleged crime and not to the witnesses who are frustrating police with their silence during police inquiries.

The NSW Law Society president Justin Dowd said that, under the proposed new law, the prosecution would no longer have to prove its case beyond a reasonable doubt, but could force the person accused of a crime to prove their innocence.

Under the proposed law, people who do not volunteer information during a police interview may appear to be lying if they later introduce new information during evidence in court.
Advertisement

Mr Dowd said people could be traumatised, inarticulate, panicky, have difficulty speaking English or be affected by drugs when arrested and questioned by police.

Police will tell people that, while they are not obliged to say anything, it may harm their defence if they fail to mention, when questioned, something they later rely on in court.

Mr Dowd said it was disingenuous of the state government to suggest such a law would mirror changes made in Britain in 1994 because it did not provide the same checks and balances.

The British law was accompanied with the provision of a duty solicitor in every police station to provide free legal advice.

A spokesman for Premier Barry O'Farrell said the NSW government would not be providing a similar service. It would be up to individuals to seek their own legal advice independently.

It is understood the Premier's decision to introduce the bill was met with dissent within his cabinet.

The government has not yet drafted the bill, which it says it will do by the end of this month. The bill would be introduced to Parliament in October.

Mark Findlay, a law professor from the University of Sydney, said, if enacted, the law would empower the police or prosecutors to imply that, if someone introduced evidence they did not declare at first, it would appear to be a lie.

"This is quite outrageous," he said. "This is providing the opportunity to the police that if the accused introduces fresh evidence they can say that, because you didn't tell us before, it's a lie. You are going to be made to lack credibility in the witness box."

The Dean of Law at the University of NSW, Professor David Dixon, said a person's silence could not be relied upon unless they were first given access to free legal advice.

He said the government's policy was not based on any research or evidence that it would help police catch criminals. The NSW Law Reform Commission decided against modifying the right to remain silent when it was considered in 2000.

Professor Dixon and Professor Findlay both said they were disappointed that the O'Farrell government had promised to move away from law and order "rhetoric", but had fallen into the same trap as previous governments.

Phillip Boulten, vice-president of the Bar Association, said the proposed changes to the right to silence would "provide great benefits to the prosecution at the expense of long-held rights held by accused persons".

"It is saying to a jury you can conclude a person is guilty because they didn't say something," he said. "This is a back-door way of changing the onus and standard of proof which has for centuries been on the Crown to prove its case beyond reasonable doubt.

"Effective policing hardly ever depends on confessions given by the accused."

Ian Dobinson, a criminal law lecturer at the University of Technology, Sydney, said the proposed new law was "a knee-jerk reaction", which would have "far reaching implications".

"It is said to be based on the UK approach but that model provides a duty solicitor for legal advice," he said. "Arguably, the proposed changes could therefore be rendered unlawful in any event if the person is not properly advised, as well as cautioned.

"To begin, we need to see whether the UK approach has achieved its objectives while still maximising protections.

"What is being proposed has the potential to undermine the presumption of innocence particularly in terms of a subsequent denial of an accused's right to put evidence before the court in his/her defence simply because they didn't raise it earlier in their answering of police questions."

The Attorney-General Greg Smith said the right to silence was an important legal principle, but was easily exploited.

He said it would be up to juries to determine whether or not someone was lying during police questioning when they later revealed new evidence in the witness box.

"There are many occasions where it is just sensible to conclude there is something a bit suspicious about an accused who fails to co-operate with police during an investigation, only to later reveal something which they claim proves their innocence," Mr Smith said.

"On the other hand, juries are smart enough to be able to apply common sense if it's clear someone has been wrongly accused of a crime.

"For example, an innocent accused may fail to provide relevant evidence to police because they panicked, or were trying to conceal a shameful act or minor crime.

"But it is not common sense for us to keep a law which means juries are actively instructed not to draw an adverse inference in such circumstances."

NSW Police Commissioner Andrew Scipione and Police Minister Mike Gallacher said they welcomed the planned change, which would help police who were often frustrated in their inquiries by witnesses who failed to speak up.

"The right to silence can be exploited by criminals and failing to answer police can impede investigations," Mr Gallacher said. "They won't be able to hide behind their vow of silence any more."

Mr Scipione said the new approach should lead to a decrease in the use of silence by suspects during police questioning.

"The NSW Police welcomes anything that helps us break down this wall of silence," he said.

[LTDHO]

Isn't this how it happens now with a lot of automotive laws?

[Jim Goose]

Originally Posted by LTDHO

Isn't this how it happens now with a lot of automotive laws?

Umm.. not sure i follow how your right to remain silent or recall something at a later date and then be labelled potentially as a liar relates to automotive offences?

[cs123]

I am absolutely against it.

AFAIK Police do not have to be honest with you when they question you. Police are expert in asking questions.

A person with no experience should not be expected to be able to represent themselves properly in these circumstances.

[2011G6E]

Basically, don't say anything until you have a beak there with you.

Unless of course you've been pulled up for some minor thing, and are being a butthead and deliberately impeding the cop who just wants to ask a few questions. If you're guilty of something, keep your trap shut. If you honestly don't have anything to hide, answer in short succinct answers, and don't elaborate or speculate. Say exactly what happened, nothing more and nothing less.

[Jim Goose]

Originally Posted by 2011G6E

Basically, don't say anything until you have a beak there with you.

Unless of course you've been pulled up for some minor thing, and are being a butthead and deliberately impeding the cop who just wants to ask a few questions. If you're guilty of something, keep your trap shut. If you honestly don't have anything to hide, answer in short succinct answers, and don't elaborate or speculate. Say exactly what happened, nothing more and nothing less.

No the issue is that someone can forget something when initially questioned by Police..... if you shut up and the new law comes to effect your screwed. As you cant say something later as it will be conscrewed as a lie.

[Kryton]

Sounds like its no different to "Association" laws - the only law where you have to prove your innocence and the law doesnt need to prove your guilt.

[jaydee]

I think it's a bit like the UK law, if you have an alibi tell it now, don't rely on it later in Court, because to a jury it looks like you just made it up later.
A jury will automatically think, "Well why didn't he say that to the cops at the time instead of 6 months later and we probably wouldn't even be here".

But of course it's your right to say nothing. Me, I know I've done nothing wrong, I'm more than happy to tell my side of it.

[Bossxr8]

Originally Posted by Jim Goose

Umm.. not sure i follow how your right to remain silent or recall something at a later date and then be labelled potentially as a liar relates to automotive offences?

Because its guilty until proven innocent when it comes to a camera fine.

[opto]

Yep, this is the the way the governments are going, this would be open to abuse by police and imprisoning innocent people. This is due to there being no Constitutional rights, and Davway is right, this is the beginning of big brother government control, fall into line or go to prison.

[MarkAW]

The right to remain silent is not an off or on situation.
You actually have the right to say as much or as little as you like.
You don't have to elaborate or tell every single bit of detail despite what an officer of the law requests. Just tell them the part of the story that your comfortable with and let them work out the rest.

[Maka]

Imo, for certain circumstances its a good idea but i dont support any weakening of our rights, its very polarising- can or will the new law be exploited by rookie/dirty cops busting innocents or people they think might of did something or actually did do something, a big difference there.....

cheers,Maka

[STINKY NINJA]

I think its because of certain groups of people who refuse to talk/help police with their enquiries when involved in gang activity/organised crime time activitites.It just means then the rest of the population will have to deal with the law change as well to make it easier for police to prosecute these certain "groups"
Personally i dont break the law or involve myself with that kind of lifestyle so im not threatened by that side of the world,doesnt bother me at all what they get up to.
Some may think its off topic but i think that is the underlying reason.

[Road_Warrior]

I think it's fundamentally wrong to shift the onus of proof from the prosecution to the defence. Especially for crimes against the person.

[BAXR8_Ute]

It will benefit innocent people who get standard legal aid advice not to say anything. If they have an alibi or other excuse like self defense, it would benefit the person to inform the police now instead of at court after they have been charged subject to bail and legal costs etc. if you're a crook and you're guilty, well you can still say nothing and not incriminate yourself.

[Jim Goose]

hmm I dont think people understand the implications... if you are accused of something staying silent wont help your case. If you recall something say at a later date after you make your statement and what you recall helps your case... then it can be implied you LIED orginally in your statement, or are LIEING NOW... meaning that YOU are going to look bad in court.


In answer to this comment:

I think its because of certain groups of people who refuse to talk/help police with their enquiries when involved in gang activity/organised crime time activitites.It just means then the rest of the population will have to deal with the law change as well to make it easier for police to prosecute these certain "groups"
Personally i dont break the law or involve myself with that kind of lifestyle so im not threatened by that side of the world,doesnt bother me at all what they get up to.
Some may think its off topic but i think that is the underlying reason.

The article states:

The new law would only apply to people arrested for an alleged crime and not to the witnesses who are frustrating police with their silence during police inquiries.

hence why the Police will say to you when arrested:

while they are not obliged to say anything, it may harm their defence if they fail to mention, when questioned, something they later rely on in court.

It doest benefit you one bit..... what happens if say you dont realise until a week later that you forgot to mention you saw someone witness the event?

[BAXR8_Ute]

I think people need to remember that the cops only charge people if they have a prima facie case. Basically, all the proofs of the offence must be met. People are rarely charged based solely on an interview, other evidence must exist for that person to be a suspect like DNA, finger prints, witnesses etc... The interview really only gets the suspect to make admissions and therefore prevent a not guilty plea at court. The new legislation will mean people will make their defense known earlier, so if the police can investigate further that person may be ruled out of the investigation and not charged and it will also stop guilty people inventing a defense to use at court so they get off.

[Keepleft]

This must not happen. This is the kind of 'legal reform' I'd expect from the Labor/Marxist side, not a supposed state conservative GovCo.

Because of the advent of the EU parliament headquartered in Belgium, and its ongoing tentacle reach into British law and all aspects of British (and member states) societies, it is no reason why we should the same here. My old man was a National Court judge and QC, if he were alive today, he'd be very concerned at the ongoing yearly attack with 'legal reform' on this once proud country of states. Pushes me even further away from a republican deal - trust them even less now.

Kinda like we have one political party with two branches (federally and state) with another hidden GovCo that pulls the strings when 'it' needs something done; and both sides then jump....

[Jim Goose]

Originally Posted by BAXR8_Ute

I think people need to remember that the cops only charge people if they have a prima facie case. Basically, all the proofs of the offence must be met. People are rarely charged based solely on an interview, other evidence must exist for that person to be a suspect like DNA, finger prints, witnesses etc... The interview really only gets the suspect to make admissions and therefore prevent a not guilty plea at court. The new legislation will mean people will make their defense known earlier, so if the police can investigate further that person may be ruled out of the investigation and not charged and it will also stop guilty people inventing a defense to use at court so they get off.

Police can drop charges due to lack of evidence and they dont need a prima facie case to charge you (Police arnt lawyer/ prosecutors). You can be charged arrested and questioned... then its up to the prosecutor to go yea or no...

If you just murdered someone and your standing there over the body I hardly expect Police NOT to charge you then and there and put you in the lock up.

[atec77]

Originally Posted by BAXR8_Ute

I think people need to remember that the cops only charge people if they have a prima facie case. Basically, all the proofs of the offence must be met. People are rarely charged based solely on an interview, other evidence must exist for that person to be a suspect like DNA, finger prints, witnesses etc... The interview really only gets the suspect to make admissions and therefore prevent a not guilty plea at court. The new legislation will mean people will make their defense known earlier, so if the police can investigate further that person may be ruled out of the investigation and not charged and it will also stop guilty people inventing a defense to use at court so they get off.

The police charge because they can , nothing to do with a prima facie case but the belief of an investogator who believes they have a case , now many police investigators are capable but some are not and being human they get it wrong , a failure to divulge something doesn't indicate guilt merely that the accused is being careful and the investigator is inept , personally I would not find myself in such a situation but if not guilty why admit anything no matter the degree of treatment by the police.??

[superyob]

If it annoys civil libertarians then it must be a step in the right (no pun intended) direction…

[Bossxr8]

Seems like this is soley targetted at bikie gangs.

[Captain Stubing]

The original article is a lot of speculation... people MAY appear to be lying, (not deemed to be lying). Police WILL tell people it will harm their defence... (under what legislation?)

The legislation hasn't been drafted, it's an article written to get people up in arms.

From my experience, if there is not enough evidence against a suspect, they get cut loose. At the end of the day, it's the Detective/Arresting Officer who has to justify their actions in court (and to the media), and I don't know any who will arrest someone just because they can.

[cs123]

Originally Posted by Bossxr8

Seems like this is soley targetted at bikie gangs.

The association laws were targeted solely against Bikies too. Funny that the first person arrested and charged under those laws in NSW was not a bikie. That comes after the premier assured people this wouldn't happen.

[nuthin' fancy]

The news reports many many drive by shootings in Sydney that relate to certain groups and activities. These scum protect themselves by staying silent. It looks as though the police are trying to force them to speak but it has an awful potential if used against others, you have to have enormous faith in the quality of the police to enforce these laws without unintentional affects on innocents.

[Jim Goose]

Originally Posted by nuthin' fancy

The news reports many many drive by shootings in Sydney that relate to certain groups and activities. These scum protect themselves by staying silent. It looks as though the police are trying to force them to speak but it has an awful potential if used against others, you have to have enormous faith in the quality of the police to enforce these laws without unintentional affects on innocents.

re-read the article.... has nothing to do with witnesses... only people who are charged with a criminal offence

The new law would only apply to people arrested for an alleged crime and not to the witnesses who are frustrating police with their silence during police inquiries......
Under the proposed law, people who do not volunteer information during a police interview may appear to be lying if they later introduce new information during evidence in court.

[BAXR8_Ute]

Originally Posted by Jim Goose

Police can drop charges due to lack of evidence and they dont need a prima facie case to charge you (Police arnt lawyer/ prosecutors). You can be charged arrested and questioned... then its up to the prosecutor to go yea or no...

If you just murdered someone and your standing there over the body I hardly expect Police NOT to charge you then and there and put you in the lock up.

Ah, no. Police are trained investigators and must have enough evidence before someone is charged. They don't just go around charging any one for the hell of it. If they charge someone and that person is found not guilty or the charges are dismissed due to lack of evidence there is an internal review as to why the prosecution failed and possible remedial action against the officer.

If someone just murdered someone and was found standing over the body why would they not be charged if it was a murder? It would still be investigated thoroughly to negate self defense etc. I know of matters, one recently, where someone died as a result of anothers direct action, yet the person responsible was not charged following the investigation.

[Jim Goose]

Ah no... Police catching you in the act of a criminal offence arrest you on the spot.... do you expect them to just watch? write a report? then arrest you later?

So a person goes on a shooting rampage.... kills people... and police then just stand by and watch.... arrest the guy the next day? or maybe a few weeks later?

Or someone goes on a driving rampage damaging cars... police pursuit... is caught... again you expect Police NOT to arrest someone on the spot?

Really? Seriously?

[BAXR8_Ute]

If they catch you in the act, I'm going to go out on a limb and say there's all their evidence... What I was trying to do was stay on topic with regards to questioning and the right to silence. My point was that an interview is not the be all and end all with regards to evidence. The person can say nothing, spin some bull **** story or tell the truth, at the end of the day, the decision to charge has probably already been made due to other evidence available unless the offender provides some sort of defense.

[my_gxl]

Originally Posted by Bossxr8

Because its guilty until proven innocent when it comes to a camera fine.

Or when it comes to anything that the cops say.

This new law is too subject to collusion by cops.

I have been subject to the buggers all saying nothing happened-after I had my head bashed into a wall 4 times (by 4 of them-excessive force anyone???) by them. No witnesses or cameras conveniently... CMC didn't care either as they all lied.

Same in court for a speeding fine. The cop said there was a car between me and him on the tape, but in court 5 months later said there wasn't.

Silence would not have helped. I still get panic attacks every time I see the buggers. ( I am getting a chest pain from stress just typing this).

No need to give them any more "power".

F the police.