Shouting out our right to silence

Charles Waterstreet | Sun Herald | 19 August 2012



Illustration: michaelmucci.com

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?