Tuesday, September 11, 2012

The Right to Silence Takes a Beating in NSW

Adam Fletcher | Castan Centre for Human Rights Law Blog | September 10, 2012

Earlier this month, the NSW Government announced that it is going to restrict criminal suspects’ right to silence to ‘tilt the scales of justice towards common sense.’ A Bill will be introduced by October to amend the Evidence Act 1995 (NSW) “to allow juries and the judiciary to draw an adverse inference against an alleged criminal who refuses to speak to investigating police, but later produces ‘evidence’ at trial in a bid to be found not guilty.”

The press release went on to say: “Attorney General Greg Smith said the right to silence was an important legal principle but it was too easily exploited…. The proposed change reflects reforms made in Britain and Wales in 1994, and will apply to serious indictable offences.”

However, there are at least two important differences between the criminal law system in Britain/Wales and that of NSW:

  • in England, Wales and Northern Ireland, the Government provides duty solicitorsat major police lock-ups to ensure procedure is followed and a suspect’s other rights are respected.

Apart from Singapore (which incidentally doesn’t provide similar guarantees of legal representation) and Ireland, Britain and Wales are the only other common law jurisdictions to have diluted the right to silence in this way (although changes are being contemplated in Scotland).

Perhaps the principal similarity is the political context – at least one person involved in the UK shift in 1994 claims that it was about politics and the police demonstrating they were ‘in charge’ of the criminal justice process, and went against the recommendations of experts.

According to the NSW Law Reform Commission, in the jurisdictions which have changed their legislation, courts and juries are “specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so.”

Is this really something we want for Australian law?

The privilege against self-incrimination was developed at common law hundreds of years ago, although its modern form (protecting the defendant before trial) is more recent. In simple terms, it evolved as a mechanism to prevent investigators from beating confessions out of people, rather than building a case by gathering evidence properly. To ensure the integrity of the right, courts and juries were also instructed not to hold it against a defendant if he or she refused to talk to the police. Cases in recent years have already watered down this ‘no adverse inference to be drawn’ rule a bit for serious crimes, while preserving the essence of the right.

Why would NSW propose to ‘tighten’ the law now? After a spate of serious gun crime in Sydney, the Police are arguing that alleged criminals are ‘obfuscating’ and exploiting the system, and that the right to silence is giving them the ‘tactical upper hand.’ Needless to say, it does not look good for ‘crims’ to have such an advantage, so it was determined that something must be done.

The right not to be compelled to confess a crime is a fundamental component of the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR – see 14(3)(g) in particular). It is also a safeguard against torture and cruel, inhuman and degrading treatment (‘ill‑treatment’) or punishment (prohibited by article 7), which are commonly inflicted for the very purpose of eliciting admissions of guilt.

It is true that section 84 of the Evidence Act 1995 (NSW) makes evidence obtained by unsavoury means inadmissible, but there is also the question of the presumption of innocence (another long‑standing common law right which is reflected in article 14(2) of the ICCPR). This presumption means it is for the State to prove the guilt of a suspect, and to compel the suspect’s cooperation in this endeavour is to undermine the very notion of a fair trial.

The privilege against self-incrimination in article 14(3)(g) of the ICCPR is closely linked to the prohibition of ill-treatment and the presumption of innocence, which are fundamental rights. As such, any limitation on this privilege should be approached with abundant caution. In addition, the delicate balancing act required when limiting rights which go to the heart of our justice system is best undertaken by the courts, not the Executive. As I mentioned, there are Australian cases (including Parkes v R in 1976 and R v Alexander in 1994) which have already made carefully-considered modifications to the rule that silence under questioning may not be held against a suspect, which further weakens the rationale for statutory amendment.

In the UK, the Human Rights Act 1998 incorporates the fair trial guarantees in article 6 of the European Convention on Human Rights into domestic law, giving suspects an added measure of protection (in this case, guaranteed access to a lawyer). In NSW (as in most Australian jurisdictions), our equivalent international obligations (under article 14 of the ICCPR) have not been similarly incorporated into domestic law. This leaves Governments free to strip away important rights in response to the political pressures of the day (especially undesirable if they are ‘temporary aberrations’). Even with the guaranteed access to a lawyer in the UK, the UN Human Rights Committeeobserved in 2001:

Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.

The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.

Professor David Dixon, now Dean of Law at UNSW, is an expert on law relating to policing and is against the proposed changes to the Evidence Act 1995. He notes that two Royal Commissions, in addition to plenty of academic research, recommended against the UK’s 1994 changes. The NSW Law Reform Commission published acomprehensive report on the right to silence in 2000 which supported his stance and specifically recommended against going down the same path as the UK. It noted there are already sensible exceptions in the case of drivers’ licences and alibis. Dixon also warns that, in light of UK and international jurisprudence, “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.” Would the Government then provide free legal advice to all who are to be questioned by the Police…?

Others with extensive experience in the criminal justice system here in Australia also remind us that “[p]eople lie for all sorts of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state.” Its abrogation can effectively shift the burden of proof to the accused, who often struggle to explain their innocence.

In making it an offence to refuse to answer questions from agencies such as the various Crime Commissions and ASIO (not to mention restricting rather than increasing the involvement of lawyers), Australian Governments have already placed serious limitations on the privilege against self-incrimination. It is time to stand up to the erosion of this important human right.

Dobbing mothers unite for drug reform

Lisa Pryor | SMH | 11 September 2012

Parenthood has made Lisa Pryor more certain our drug laws need to be reformed. When a child gets in trouble with drugs, help is a lot more effective than a criminal record.

"Surely having children of your own has made you think twice about decriminalising drugs?" This is a question I get asked a lot, as someone who advocates for drug law reform while being the mother of two young munchkins.

The implication is that your views should change once you become an upstanding and responsible parent whose drug of choice is caffeine, and whose social life revolves around rhyme time at the local library. As if parenthood should soften you with regard to your own flesh and blood, while hardening you towards the rest of the world, especially towards illicit drug users.

My answer to this question is "no, quite the opposite". Having responsibility for young children who will one day be young adults has made me more certain that our drug laws must be reformed and I'd like to explain why.

As a parent I would love to see Australia adopt the model of decriminalisation which has been working so well in Portugal for more than 10 years now.

Let me tell you a little bit about how it works. In July 2001 Portugal abolished all criminal penalties for using and possessing small quantities of drugs. When the police catch someone with a zip lock bag of pills or powder folded in tin foil, there are still consequences. The drug user may be required to attend a "dissuasion tribunal" where the seriousness of their habit is assessed. If the tribunal finds the person before them is an addict, they can then be referred to rehabilitation. And that's another key thing about the reforms in Portugal. They improved funding for drug treatment and made it more accessible.

What I love most about this model is that it empowers families to work with the authorities if a child gets into serious trouble with drugs, confident that they would be given help rather than a criminal record.

In other words the Portuguese system appeals to me as a dobbing mum. If a young person in my life was abusing drugs, I would feel confident working with the police to get help. This is exactly the opposite of what I would do with the system as it stands in Australia. I would never recommend a parent dob a child with a drug problem into the police as it is likely to make matters worse.

Australian parents are in a terrible bind if they feel a child is developing an addiction to illicit drugs. They may want to intervene, but most know that dobbing a child into the police is not the answer. Motivating a pot head teen to go out and get a job will be even harder if that teen has a criminal record which means they will be rejected out of hand by many employers. As for young adults who try to escape emotional difficulties by taking too many drugs, they will be haunted by even greater troubles if they are forced to spend time in prison with its accompanying traumas.

The Portuguese model is one of the alternatives to prohibition – along with the systems operating in Switzerland and the Netherlands – which is canvassed in an Australia21 report which was released on Sunday.

The report explains some of the improvements Portugal has enjoyed as a result of their bold reforms. Problematic drug use has decreased. There are fewer overdoses. Fewer injecting drug users are contracting HIV. Drug related crime has dropped too.

For these reasons and many more, parents like me support decriminalisation. This is not contradictory, nor is it new. A black and white photograph, reproduced on the back of the Australia21 report, shows just how long mothers have been fighting against prohibition. Taken in the United States in 1932, the photograph shows mothers and children campaigning against alcohol prohibition. In earnest uniforms they stand beside a car painted in slogans: "Protect our youth", "stamp out prohibition", "save our children".

The campaign to end alcohol prohibition was supported by mothers because they felt that when the trade in alcohol was pushed underground, it made it easier for young people to access alcohol. Legal saloons risked having their licences revoked if they served alcohol to the underage. But the illegal speakeasies which came with prohibition had no such qualms about underage drinking.

Alcohol prohibition was repealed the year after this photograph was taken. It is time for parents to speak out again.

Wednesday, September 5, 2012

Neighbour can't cop jolly whistle

Gayle Bryant | Heckler | SMH | 5 September 2012

A FRIEND of mine was threatened with an AVO on the weekend. Now, what image has just come into your head? Some violent, uncontrollable loser who lets his fists do the talking? Some drunken yobbo? Try a gentle, non-aggressive man whose only crime is whistling.

No, my fingers didn't slip on the keyboard. I didn't mean to write that my friend enjoys ''wrestling'', or ''wrecking things'', or ''whacking people''. My friend likes to whistle. Not constantly. Just occasionally, when he feels good about the world and has a spring in his step.

On Saturday, however, he was amazed to find that not one, but three police had appeared on his doorstep to tell him his neighbour had complained about this habit. Apparently, my friend was told, his neighbour often hears him whistling as he walks up the path separating their two homes - and this is not OK. My friend was told he can whistle in his own home, but he must not whistle as he walks past his neighbour's front door.

Illustration: Simon Letch

Of all the noises that can be emitted by the body, I would have thought whistling is the least offensive. But now you can be threatened with an AVO if you purse and blow? What next? AVOs for burpers, farters or stomach grumblers?

Aren't AVOs served when someone is in fear for their safety? How does whistling fit into this category? It demeans their very purpose.

My friend has no intention of changing his behaviour. He told the police that he would see his neighbour in court before he stopped whistling. The fact that three police were sent to pass on the message only added fuel to the fire. Especially, as he pointed out to them, no police had yet responded to his calls to the same station about a stolen bike. I'm guessing a stolen bike hardly raises an eyebrow.

But the novelty of a whistling complaint clearly had the police scrambling for the squad car. They had probably never been called to serve an AVO against a whistler and weren't sure how the perpetrator would react. Perhaps they thought he'd launch an assault on their eardrums by whistling at extreme volume or deliberately off-key. Maybe they thought all the local dogs would come running, resulting in chaos.

Are we becoming so obsessed about being in control of the sounds we want to hear that those we can't control are cause for a complaint to the police? Come on Sydney, why not purse those lips and whistle down the street just as Mark Twain writes in Tom Sawyer, ''with a mouth full of harmony and a soul full of gratitude''.