The right to silence before the law is part of the 'Golden Thread' of British justice...but Prof Ross Fitzgerald claims the right should be curtailed, while Don Malcolmson argues we must retain it. Make up your own mind about which way Australia should go.

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Silence that speaks volumes.

The time is ripe for an open debate involving all parties interested in fair outcomes in our courts.

    “You need not say anything but anything you say may be used in evidence”. It sounds like a line from a movie but that statement, or words to that effect, should be heard by anyone being arrested in Australia. The police officer who says – or should say – this will be indicating that individuals have the right to remain silent. Indeed, this is what most lawyers advise their clients to do.

    The fundamental privilege against self-incrimination is closely linked to this right. There are some statutory exceptions, particularly relating to the use of motor vehicles, but generally the right to silence applies across the board.
    
    The current law in Australia provides that where someone exercises his or her right to silence, a person deciding whether or not that person is guilty of an offence must not draw an adverse inference against that person. In cases involving more serious offences, the people deciding guilt or innocence will be jury members.  The trial judge will tell them that in deciding guilt or innocence they must not use against an accused person the fact that he or she exercised the right to remain silent.

    What often occurs in criminal trials is that the defendant says nothing to police but provides evidence in the proceedings.  Invariably that evidence will be given after the Crown has closed its case.  Because of other rules of evidence, the Crown is not able to bring further evidence to rebut things that the accused person may say, except in special circumstances.

    The effect of these rules sometimes enables a defendant to use the time between arrest and trial (usually months and sometimes years) to think up a plausible story to get off a charge of which they may be guilty.
    
     Better that one hundred guilty go free than one innocent be convicted? That goes without saying – but by the same token, better that persons who are really guilty are not able to use antiquated legal technicalities to escape their just deserts.  This has been found to be especially the case in sexual assault trials.

    In England the common law right to silence was changed in 1994 with the introduction of legislation that allowed a court to draw “proper inferences” when a suspect refuses to give an explanation to police, when there was no good reason for not doing so, and where he or she later gave an explanation in court.
    
    The controversial provision was contained in a bill that became the Criminal Justice and Public Order Act 1994 (section 34).  It was introduced by John Major’s Conservative government and even though Labour MP’s, including Tony Blair, were strongly critical of it during debates in both houses of Parliament, no radical amendments have been made to the law as introduced in 1994.
    
    In introducing the UK amendments, on 11 January 1994, the then Secretary of State for the Home Department, Mr Michael Howard, said:
    “The provisions will allow the Courts to draw the proper inferences from a suspect’s refusal to answer police questions in circumstances which cry out for an innocent explanation, if there is one, or from a defendant’s refusal to give evidence in court.  That does not mean that a suspect or defendant will be compelled to speak under threat of a criminal penalty.  Defendants can still remain silent if they choose. In the future, the judge and jury will be able to weigh up why the defendant decided to stay silent and the jury will be able to draw reasonable inferences from that silence.  In short, it is not about the right to silence; it is about the right to comment on silence. The present system is abused by hardened criminals.”
    
    Anyone attuned to the nuances of police-speak, picked up by watching endless re-runs of ‘The Bill’ may be aware of the difference between the English police caution and our own.  In contrast to our police caution, the English version is along the following lines: “You do not have to say anything unless you wish to do so, but if you fail to mention any fact which you later rely on in your defence, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.”

    In Australia a judge will tell the jury that it would be quite wrong for it to view the fact that an accused had chosen to remain silent in any negative way against that accused. Here silence cannot be used against an accused in any way at all.

    In many cases this may seem unfair.  For instance in child sexual assault cases, where a child gives an account of having been sexually molested.  The child’s evidence is presented by the prosecution by way of a video recording. However, the child will then be subjected to cross-examination usually by closed-circuit television.  It is often easy for experienced defence counsel to raise doubts in relation to a child’s evidence, especially when the trial is held months or years after the event in question.  Inconsistencies in evidence don’t have to be inordinately profound for the jury to be told that there is a reasonable doubt about what a child said in the first place.
    
    Then the accused gets into the witness box and gives a credible account of what he or she said occurred.  This after saying nothing when police were investigating the matter.  In these circumstances, what can a jury do but acquit?  Even where the evidence points to the child being truthful, where there is a reasonable doubt the jury must find the accused not guilty.

    “Fairness” is a two-way street. It does not only apply to the accused.  A complainant subject to the scrutiny that accompanies cross-examination has to be treated equally fairly.  It is devastating to a victim when a verdict of ‘not guilty’ is delivered in circumstances where the person accused really did committed the offence. No one should have to suffer that ignominy. Yet some Australian prosecutors maintain that our system is skewed and often allows the guilty to walk free.

    Lawyers know this – yet if you ask them they will often glibly answer that it is the finding of the jury that determines guilt or innocence.  In adversarial proceedings a defence lawyer is bound to fight for an acquittal and to do everything possible, within the law, to secure that result.

    It is not only the accused person and the victim that we need to consider when having regard to the question of “fairness”.  The community as a whole must be considered.  What is fair for everyone?  Is it fair, not to mention desirable, for those who have committed crimes, especially against the vulnerable, to walk free?

    Obviously, lawyers discuss these matters among themselves from time to time, but surely it is time for these matters to be discussed openly, by community representatives and other professionals, as well as lawyers.  For instance, forensic and child psychiatrists would have a great deal of expertise to contribute to any debate on this important topic.  So too would many counsellors, youth and child protection workers, as well as interested members of the wider community.

    As a matter of urgency, a forum should be set up to tackle these and other legal issues to ensure everyone gets a fair go. Isn’t that what this free and robustly democratic country is supposedly all about?

Emeritus Professor of History and Politics at Griffith University, Ross Fitzgerald is the author of 33 books, most recently MY NAME IS ROSS:AN ALCOHOLIC’S JOURNEY and ALAN (“THE RED FOX”) REID, co-authored with Stephen Holt.

CANBERRA TIMES, Monday March 14, 2011, p. 9.

Lawyer, Don Malcolmson responds:

Walk a few nights in their shoes…

The Editor, Sir/Madam:  Before stridently advocating a removal of the right to silence (Silence that speaks volumes, Canberra Times, 14 Mar 2011, p9), I would respectfully suggest that Professor Ross Fitzgerald sit in with a defence lawyer in the ACT Magistrates Court cells, taking instructions from persons who have spent a night or two in the watch house.

If he were to do so, he would find that even in the ACT, there are many people in police custody who are vulnerable, poor, weak, ill-educated, distressed, confused, inarticulate, mentally dysfunctional and generally unaware of their legal rights. It is all too easy for persons in this situation to be lulled into a false sense of security by investigating police to produce a dubious confession.

The British changes to the right to silence that Professor Fitzgerald cites were prompted by police claims that hardened criminals and Irish terrorists evaded conviction by availing themselves of that right. A major 1994 British study found that curtailing the right to silence had little or no apparent effect in terms of gaining the conviction of the guilty.

The right to silence and privilege against self-incrimination are based on the notion of presumption of innocence, the so called “Golden Thread” beloved by Horace Rumpole. It is for the Prosecution, with all of the resources of the State behind it, to adduce admissible evidence obtained lawfully by Police to prove guilt beyond reasonable doubt. It is not an accused citizen’s duty to make the prosecution’s case.  

There is a fine distinction between defendant’s rights and victim’s rights. From the mid 17th Century onwards, and particularly with regard to Indigenous Australians, our legal system has recognised the adverse consequences for vulnerable and disadvantaged groups if the right to silence were to be removed. More recently, victims of crime have, quite properly, gained access to support, advocacy, compensation and a role in the justice system that tries those charged with criminal offences of which they have allegedly been a victim. These are two separate groups with diverse interests. Limiting the rights of one by allowing adverse inferences to be drawn when an accused exercises the right to silence may not necessarily benefit either group.

• Don Malcolmson, Bywong, NSW, a member of Civil Liberties Australia, Canberra Times, 16 March 2011.

Drug reform campaigner, Bill Bush, writes:

Jailing rates rise, at huge cost, as crime rates fall

Ross Fitzgerald (Silence that speaks volumes”, March 14, p9) calls for a forum on winding back fundamental civil liberties at the heart of our criminal justice system. He describes them as "antiquated legal technicalities". I doubt that Amnesty International would see them that way. Bring on such a forum but please put it in its full context.

Fitzgerald presumably wants more people behind bars but we're successfully doing that at enormous expense. The Australian Bureau of Statistics tells us that the imprisonment rate is rising remorselessly from well below 100 per 10,000 in 1992 to 129 in 20081 and climbing while at the same time victimisation rates are falling.

Car theft is the most reliable proxy of crime trends. According to the Bureau's 2009 survey, at 284 victims per 100,000 persons, Australia recorded the lowest rate since national reporting began in 1993 (637 victims per 100,000 persons).2

Even so Australian crime rates are still far too high by international standards.The OECD recorded that 2.5% of Australians experienced burglary in the previous twelve months compared to 0.9% in Japan and 1.6% in Switzerland.3

Switzerland is particularly instructive because it experienced a big reduction in drug related crimes since it introduced heroin prescription. Within a year there was a 98% drop in the incidence rate, among those on that program, of serious property offences…and street robberies in the Canton of Zurich plunged 70% between 1993 and 1996.4

Yes, there are many victims of our drug policy. Ross Fitzgerald would add our civil liberties. 
– Bill Bush, Turner ACT, 16 March 2011