See Quentin Dempster's piece "O'Farrell Government overhauls 'right to silence'" here, including O'Farrell's announcement, and interviews with Phillip Boulten SC and Evan Whitton.
And then see Dempster's interview with Attorney-General Greg Smith here.
Smith says the modification will not apply to certain categories of accused, or to people who have not had access to legal advice. He says duty lawyers will not be provided to Police stations, but does hint at a phone advice service being made available.
Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.
In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.
The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.
Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.
People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.
Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.
The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.
American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.
Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.
The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.
At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.
Premier Barry O'Farrell's announcement of plans to restrict the right to silence in NSW has set off another rhetorical joust between civil libertarians and critics of this ''right''.
While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.
Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.
The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).
This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.
It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.
Where is the evidence that a change to the right to silence is necessary?
There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.
The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.
In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.
Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.
English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.
If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?
So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.
This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.
England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).
Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.
The O'Farrell government needs to be very careful what it wishes for.
Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.
A plan by Uruguay's leaders to turn the government into the nation's marijuana dealer has been presented to Congress, where the idea faces an uncertain fate.
President Jose Mujica's entire Cabinet signed onto the proposed law, which aims to take over an illegal marijuana trafficking business estimated to be worth $30 million to $40 million a year.
The law would have government control marijuana imports, production, sale and distribution, creating a legal market for people to get pot without turning to riskier illegal drugs. The text submitted to Congress on Wednesday declares that the drug war is a failure and that marijuana is only mildly addictive, unlike "cocaine, alcohol, tobacco and psychotropic drugs."
But lawmakers are divided on the idea, even within Mujica's Broad Front coalition of leftist parties and social groups.
Mujica has said he'll push the plan only if it gets at least 60 percent support in polls. An official in the president's press office, speaking on condition of anonymity according to department policy, said the bill isn't expected to advance quickly.
The text says the project's goals include "the normalization and full social acceptance of marijuana use" so that consumers aren't "stigmatized, nor treated as criminals." Instead, it proposes education about the risks of marijuana use. The presidency's website said Thursday that a National Drug Council would organize meetings to "facilitate reflection" on this point.
The text sent to Congress added that "marijuana has been for many years the most-consumed illegal substance" in Uruguay, and "has an important level of legitimacy in Uruguayan society." It also cited precedents for various levels of decriminalization of marijuana possession in the Netherlands, Australia, Spain and several U.S. states.
GOLDMAN Sachs will invest almost $US10 million ($9.5m) in a New York City jail program that will allow the investment firm to profit if it can reduce recidivism rates.
The move makes New York the first US city to test "social impact bonds" that enlist private entities to help save governments money over the long term.
Inmates aged 16 to 18 will receive education, training and counselling intended to reduce the likelihood of reoffending after their release.
"New York City is continually seeking innovative new ways to tackle the most entrenched problems, and helping young people who land in jail stay out of trouble when they return home is one of the most difficult - and important - challenges we face," Mayor Michael Bloomberg said.
"As the first city in the nation to launch a social impact bond, we are taking our efforts to new levels and we are eager to see the outcome of this initiative."
City officials said Goldman would provide a $US9.6m loan to pay for the program at the Rikers Island jail complex.
If recidivism drops by 10 per cent, the firm will get back the $US9.6m. If it drops even more, Goldman could make as much as $US2.1m in profit. If recidivism doesn't drop by at least 10 per cent, Goldman will lose as much as $US2.4m.
Nearly half of the adolescents who leave city jails return within one year. Social impact bonds were first used in Britain and are being explored in Australia and elsewhere in the US.
Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie
The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.
These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.
According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.
So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.
The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!
This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.
The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).
A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.
Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.
The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.
A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.
A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.
There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.
In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.
One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.
At 54, Marvin Wilson can't use a telephone book. He reads and writes on a first- or second-grade level. Those who know the Southeast Texas man say he can't match socks, he doesn't understand what a bank account is for, he's been known to fasten his belt to the point of nearly cutting off his circulation. The day his son was born, one sister recalled, he reverted to the familiar habit of sucking his thumb.
His IQ, according to the most valid indicator of human intelligence, is 61, below the first percentile. This was one of many clinical tests and factors that led a neuropsychologist with decades of experience to diagnose Wilson with "mild mental retardation."
Nevertheless, at 6 p.m. Tuesday night, the state of Texas, in your name and mine, is scheduled to kill Marvin Wilson by lethal injection. The U.S. Supreme Court - citing the Eighth Amendment prohibition against cruel and unusual punishment - banned the execution of the mentally retarded a decade ago.
But like other federal mandates, Texas has found a way around this one, too.
The U.S. Supreme Court, in a 2002 decision in a case called Atkins, exempted all mentally ill offenders from execution, in part because those who struggle with impulse control, for example, are less culpable for their crimes. But also because mentally ill offenders may be especially vulnerable to wrongful convictions since they're less able to help attorneys build strong defenses.
Wilson is a textbook example. According to his attorneys' brief, Wilson was fingered as the lead shooter by a more sophisticated accomplice, and evidence of his "confession" in the murder of police informant Jerry Williams came from the accomplice's wife.
In Atkins, the high court held that the states, many of which had begun to ban executions of the mentally retarded on their own, had reached a national consensus that the practice was immoral.
Of course, certain conservative factions in Texas, as usual, fell somewhere outside those evolving standards of decency. The Supreme Court left it up to the states to design procedures to implement the ban, but the state with the most active death chamber took that as an invitation to redefine the ban itself.
In a 2004 opinion, Texas' highest court announced that, where executions were concerned, it didn't have to define "mental retardation" the same way as other states. It didn't even have to define it the same way it does for impaired Texas school children.
No, the fine jurists of Texas' Court of Criminal Appeals made up a new definition of "mentally retarded" especially for defendants in capital crimes. It wasn't based on science or the generally accepted definition of the American Association on Intellectual and Developmental Disabilities. It was based on myths, stereotypes and even a fictional character: Lennie in Steinbeck's "Of Mice and Men."
Forget the national consensus. The Texas court was concerned only with the Texas consensus, "the level and degree of mental retardation" that Texans would agree should be exempted from the death penalty.
"Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt," the court said. But someone else who didn't meet that stereotypical description and merely had a clinical diagnosis to prove his mental retardation? Well, that's a different story.
The court then set about redefining what it means to be mentally retarded in a capital case. The "Briseno factors" are a list of questions fact-finders should ask in criminal cases to determine whether a defendant is mentally retarded enough to be spared. The goal, of course, is to spare as few as possible.
The factors include such subjective and unscientific questions as whether a defendant can plan and lie. (My toddler is capable of both when there's a cookie within reach.) Another question asks whether family and friends in the defendant's life "think he was mentally retarded." Never mind that mental retardation can be genetic and family members themselves may be impaired. The seventh, and most problematic factor invites the fact-finder to look at how the crime was perpetrated, which introduces emotion into a process that should be solely based on reason.
Wilson's last hope is for the U.S. Supreme Court to step in on Tuesday and grant a stay of execution so that the high court can consider his case along with another similar Texas case pending before it.
Once again we need the nation's highest court to save us from ourselves. To remind us of our humanity. To impose on us the cruel confines of decency.