NT crimes policy change

The Northern Territory may become the first Australian jurisdiction to suspend the right of an arrested person to remain silent - or at least allow the fact of the refusal to be mentioned in court.

The Country Liberal Party Chief Minister, Shane Stone, has flagged a review of the right as an issue in the next election. The context is important, because tussles over the right to silence are favourite fare for electioneering politicians. He has found support for this review from NSW Director of Public Prosecution Nicholas Cowdrey QC.

What is the "right to silence"?

The laws that deal with the rights of people suspected of having committed a crime are not straightforward. There is not really a "right to silence" - in fact, it is really a right not to "self-incriminate" i.e. not to provide the police with evidence that can later be used against the suspect in court.

This makes sense if you think about it, because under Australian law a person is presumed innocent until proven guilty. Nevertheless, there are statutory exceptions to this common law rule - for instance, you have to provide your name and address if stopped while driving a vehicle. But the police cannot force you to answer direct questions.

What is the effect of saying nothing?

If you are charged with committing a crime, and you provide no reason to suggest otherwise, it can be reasonable for a jury to wonder why you have nothing to say in your defence. On the other hand, as lawyers well know, the vast majority of convictions arise from admissions made to the police.

In Britain, the prosecution can now raise in court the fact that a person refused to answer questions, and then use the fact to infer guilt. In Australia, the High Court has clearly stated that there can be no suggestion of guilt by the prosecution merely because a person refused to answer police questions.

There is an obvious (and often asked) question that arises from this - if a person has nothing to hide, why would they refuse to answer fair and reasonable questions posed by the police? This argument does not really pass muster. There are any number of reasons a person might not want to answer a question by police when they are entirely innocent of any wrongdoing.

Also, the police have a lot more experience with the interview process than most suspects. People accused of committing a crime are often confused (especially if they didn’t do it!) and vulnerable – this can be exploited. Also, there are many elements to a crime that have to be proved by the prosecution, so it is unwise to answer some questions and not others without proper legal advice. It is also dangerous to respond to statements allegedly made by others – e.g. "your mate Harry says you’re the one who’s responsible for that robbery". This may or may not be true, or may not be exactly what Harry said – in other words, silence is often the wiser course.

What we say

Mr. Stone claims his proposal will "remove a veil a criminal can hide behind". That sounds very convincing, but it would be tragic if it also allowed the innocent to be badgered into submission, or the "not so guilty" to find themselves with more on their plate than they bargained for.

The right to silence doesn’t stop the prosecution from proving their case, so long as they have more evidence to rely on than an admission of guilt – and that, of course, is their job.

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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