The Silent Menace

Here's a hypothetical situation for you to consider.

You're out with some friends on a Saturday night. You've had a few drinks - you're not drunk, but you're enjoying your night. It's a dark pub in the city - there is music, flashing lights, people everywhere.

You look over your shoulder and see your friend being punched by someone you don't recognise. You don't know how it started, and your friend may well deserve that punch, but you immediately run over to try and help your friend.

As you arrive, suddenly there are people everywhere. You get a knock to the head - you're not sure who or it was. Suddenly you're just trying to defend yourself.

After 10 seconds of chaos, someone grabs you round the throat, and before you know it you're on the ground, handcuffed. You're taken to a police station, put in a 1m by 2m cell with a clear plexiglass wall and given an icepack for that lump on your forehead.

You wait there for about 2 hours and start to sober up. You are offered the chance to call a lawyer, but it is 1am on a saturday night, and of course you don't have any lawyer's mobile phone number. The few law firms that you find in the Yellow Pages don't pick up, and in any event, how would you pay for their services?

Then, a police officer approaches you, takes you in a room. As he's setting up, you ask what is going on, and he says "We're investigating what happened in that pub. This is your chance to tell your side of the story."

You respond "Do I have to?" and he replies "No." You say "Am I going to be charged" and he says "Maybe."

He turns the video camera on and is joined by another officer. The say "You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?"

You say yes, and police start asking questions.

You know you did nothing wrong, and you've got nothing to hide. Do you answer the questions?

If you said yes, you almost certainly just made a massive mistake. Don't feel bad - the vast majority of people (innocent or guilty) who are charged with an offence give an interview. People who are innocent are even more likely to start talking.

I've been working in criminal defence work for four and a half years, and I am yet to see even one interview given by a client that helps them. Not once. I have NEVER even heard of a situation where police decided not to charge someone because of what they said in their interview.

The problem is this - by the time they speak to you at 1am that night, police have taken statements from security, the barman, the alleged victims, and anyone else who they think might help. They have viewed the CCTV footage, if it exists. They have sat down and worked out what they think happened.

They have all the information. You have none. They know what they plan to charge you with, and what the elements of the offence are. You do not.

If you say anything, ANYTHING that differs from what the CCTV footage shows, the police will do everything in their power to use it to your disadvantage. If you forget something, or in your muddled, disorientated state of mind during the interview and then bring it up when your matter is heard, you will be hammered for it.

If you get home and find a huge bruise on your back and suddenly remember that punch you got just before you got hit in the head, or if you remember something that you forgot to mention - too bad so sad, you missed your chance. Anything you add now looks like something you've invented specially.

Interviews are almost universally a very bad thing for accused persons.

This is what makes the changes announced today all the more shocking:

NSW will be the very first jurisdiction in the country to take these steps.

Why is this change such a bad thing? A lot of reasons.

Firstly, the person being interviewed will almost never have had the benefit of legal advice. There will usually not be a lawyer there to protect and advise them, even if they could afford to pay for one. They won't know what they are to be charged with, they won't know the elements of the offence, and they won't know if they are guilty or innocent.

Police, by contrast, will know what they are trying to prove, and will ask difficult, confusing questions to trap you into admitting something, or at least into contradicting what they know they can prove.

These changes will be an even more powerful emotional tool for police to use to convince a person to give an interview. Of course they cannot literally force someone to start answering questions - but once people are told that, in effect, that if you don't tell us what happened it can be bad for you, it is difficult to resist the natural willingness to answer questions.

Moreover, at present I can as a solicitor give general advice that an interview is almost universally a bad thing. I tend to tell anyone who talks to me about my job for more than a few minutes.

If this change is made, that advice will change to "it depends". It will be pretty much impossible to advise a person whether giving an interview is a good idea without spending a decent amount of time talking to them about what has happened - and that assumes that you even know what you are going to be charged with. At 2am in the morning, there is no way that going to happen.

The second issue is the presumption of innocence. The basic principle is that the Crown needs to prove its case beyond reasonable doubt.

That is a heavy burden - but it is the right burden. Anyone can make an allegation against someone, but we don't want to have to come to court and prove that we didn't do something. Not only is proving a negative all but impossible, but the prosecution have far, far greater resources than all but the wealthiest of defendants.

Police have incredible investigative powers that are not even worth comparing to an individual's. 

The third issue is that there has been no report, no investigation, and no consultation.

Well, that's not quite true. In 2000 the Law Reform Commission closely examined the right to silence and produced this quite excellent report. Their conclusion?

Section 89 of the Evidence Act presently reads:

This mooted change comes completely out of the blue. To my knowledge no one has been actively campaigning for it, no one has suggested that it is a major problem to be fixed, and no other jurisdiction in Australia has tried because it because it is a pretty bloody stupid idea.

The only people quoted in O'Farrell's press release are O'Farrell, AG Greg Smith, the Police Minister Mike Gallagher (3 Liberal politicians) and Police Commissioner Scipione (police being famous for never having met a new power they didn't like).

It is also pretty interesting to look at the reasons that have been proffered by the Coalition as the story broke today.

If by exploited O'Farrell means "being used to the accused's advantage" then I suppose a lot of other rights are in danger.  On that definition, accused person's constantly "exploit" their right to a trial, and their right to legal representation, not to mention their right to a presumption of innocence. 

Unless O'Farrell can point to some evidence of this right being somehow illegitimately exploited then this is a non-sensical criticism.

And to say it an "importan legal right" and then comprehensively rip it to shreds - I don't even know what to say about that.

Well, yes. Of course accused persons restrict information given to police! The police are trying to prove them guilty of an offence that they deny committing! Is O'Farrell expecting these people to actively assist police in trying to prove them guilty?

If police uniformly and reliably investigated matters with the intention of finding the truth (not just "getting their man" as is so often the case), and if the police never made a mistake, never jumped to a conclusion and never relied on their "gut" rather than the evidence, then perhaps this wouldn't be such a problem. But we all know that is a fantasy.

Ah, that old chestnut! Common sense! Also known as "We have no evidence that this is a good idea, but it sounds good, so we're going to do it!"

That's why you hear so much talk about "common sense" from some people. It's a wonderful way to avoid annoying things like "evidence", "specialised knowledge" and "research".

Brad Burden is the head media guy for O'Farrell, and his tweets today got me madder than any others.

Bring into line with the UK? What possible reason is there that we need to have the same laws on this topic as the UK does?

Bringing laws into line with other states can sometimes makes sense. At the moment the states are working on bringing together the laws surrounding heavy vehicles. This makes a lot of sense - the heavy vehicle regulation in NSW is eye-wateringly complicated, and having to work with the laws in 6 other states and territories must be an absolute nightmare.

To suggest that there is a good reason to bring laws into line with the UK is ridiculous in the extreme.

It is also worth noting that in the UK there is a scheme whereby any accused person can at any time have access to legal advice 24/7. There are duty lawyers who are always available to attend police stations and give advice

In NSW, you have the right to access legal advice, but it is impossible to find unless you have the mobile number of a criminal lawyer in your pocket. Legal Aid do great work in NSW but their funding has no prospect of even coming close to this level of service - they are hard-up providing enough lawyers just to make the court appearances for their clients during waking hours.

This was the tweet that really made me crazy. This change has nothing to do with victims of crime. It is about making it easier to convict someone of an offence. To link it to "victims of crime" is just plain deceptive.

That segues pretty well to the biggest complaint I have about these changes.

Everyone is going to be talking about the way that these changes will affect people who are guilty of crimes and trying to hide it. Case in point:

I have no problem with something that makes it easier to lock up people who are guilty of offences. That's good, and proper, and should be encouraged.

What upsets me about these changes is the effect that it will have on people who are not guilty of anything.

If you are innocent of any crime, the absolute worst thing that can happen to you is a police interview, especially before you get legal advice. Police will know the evidence they want to get from you. They will spin your answers, they will provide you with information as and when it suits their questions, they will change tack and try and catch you in a lie, and they will give you every opportunity to say something they can prove is untrue.

There is no magistrate to rule questions out, and there is most likely no lawyer there to help explain things to you. And your answers will be mercilessly used to convince a jury that you are in fact guilty.

And more innocent people will go to gaol as a result. Fact.

Nice one Barry.