[worry]

Not sure anyone here would would actually side with this insanity, but I figured it should go in the Discussion forum anyway.


Right to remain not quite so silent: lawyers react
Innocent people will risk being made to appear guilty under the O'Farrell government's proposed new law to water down the right to remain silent, legal experts say.

The new law would only apply to people arrested for an alleged crime and not to the witnesses who are frustrating police with their silence during police inquiries.

The NSW Law Society president Justin Dowd said that, under the proposed new law, the prosecution would no longer have to prove its case beyond a reasonable doubt, but could force the person accused of a crime to prove their innocence.

Under the proposed law, people who do not volunteer information during a police interview may appear to be lying if they later introduce new information during evidence in court.

Mr Dowd said people could be traumatised, inarticulate, panicky, have difficulty speaking English or be affected by drugs when arrested and questioned by police.

Police will tell people that, while they are not obliged to say anything, it may harm their defence if they fail to mention, when questioned, something they later rely on in court.

Mr Dowd said it was disingenuous of the state government to suggest such a law would mirror changes made in Britain in 1994 because it did not provide the same checks and balances.

The British law was accompanied with the provision of a duty solicitor in every police station to provide free legal advice.

A spokesman for Premier Barry O'Farrell said the NSW government would not be providing a similar service. It would be up to individuals to seek their own legal advice independently.

It is understood the Premier's decision to introduce the bill was met with dissent within his cabinet.

The government has not yet drafted the bill, which it says it will do by the end of this month. The bill would be introduced to Parliament in October.

Mark Findlay, a law professor from the University of Sydney, said, if enacted, the law would empower the police or prosecutors to imply that, if someone introduced evidence they did not declare at first, it would appear to be a lie.

"This is quite outrageous," he said. "This is providing the opportunity to the police that if the accused introduces fresh evidence they can say that, because you didn't tell us before, it's a lie. You are going to be made to lack credibility in the witness box."

The Dean of Law at the University of NSW, Professor David Dixon, said a person's silence could not be relied upon unless they were first given access to free legal advice.

He said the government's policy was not based on any research or evidence that it would help police catch criminals. The NSW Law Reform Commission decided against modifying the right to remain silent when it was considered in 2000.

Professor Dixon and Professor Findlay both said they were disappointed that the O'Farrell government had promised to move away from law and order "rhetoric", but had fallen into the same trap as previous governments.

Phillip Boulten, vice-president of the Bar Association, said the proposed changes to the right to silence would "provide great benefits to the prosecution at the expense of long-held rights held by accused persons".

"It is saying to a jury you can conclude a person is guilty because they didn't say something," he said. "This is a back-door way of changing the onus and standard of proof which has for centuries been on the Crown to prove its case beyond reasonable doubt.

"Effective policing hardly ever depends on confessions given by the accused."

Ian Dobinson, a criminal law lecturer at the University of Technology, Sydney, said the proposed new law was "a knee-jerk reaction", which would have "far reaching implications".

"It is said to be based on the UK approach but that model provides a duty solicitor for legal advice," he said. "Arguably, the proposed changes could therefore be rendered unlawful in any event if the person is not properly advised, as well as cautioned.

"To begin, we need to see whether the UK approach has achieved its objectives while still maximising protections.

"What is being proposed has the potential to undermine the presumption of innocence particularly in terms of a subsequent denial of an accused's right to put evidence before the court in his/her defence simply because they didn't raise it earlier in their answering of police questions."

The Attorney-General Greg Smith said the right to silence was an important legal principle, but was easily exploited.

He said it would be up to juries to determine whether or not someone was lying during police questioning when they later revealed new evidence in the witness box.

"There are many occasions where it is just sensible to conclude there is something a bit suspicious about an accused who fails to co-operate with police during an investigation, only to later reveal something which they claim proves their innocence," Mr Smith said.

"On the other hand, juries are smart enough to be able to apply common sense if it's clear someone has been wrongly accused of a crime.

"For example, an innocent accused may fail to provide relevant evidence to police because they panicked, or were trying to conceal a shameful act or minor crime.

"But it is not common sense for us to keep a law which means juries are actively instructed not to draw an adverse inference in such circumstances."

NSW Police Commissioner Andrew Scipione and Police Minister Mike Gallacher said they welcomed the planned change, which would help police who were often frustrated in their inquiries by witnesses who failed to speak up.

"The right to silence can be exploited by criminals and failing to answer police can impede investigations," Mr Gallacher said. "They won't be able to hide behind their vow of silence any more."

Mr Scipione said the new approach should lead to a decrease in the use of silence by suspects during police questioning.

"The NSW Police welcomes anything that helps us break down this wall of silence," he said.

[POOPOO MCBUMFACE]

Goddamn insane. The Scottish model isn't the same as England's, and we still have a right to remain silent, but I'm shocked to see a modern state taking that right away without even providing the right to legal assistance in its place; we've been seesawing back and forth on the balance of rights and powers on the subject, and there's never been as much as a suggestion of removing both.

As a law student, it's a topic I feel pretty strongly on; when it comes down to it, it's a matter of basic civility, we should be allowed to remain silent because, until proven otherwise, we are innocent. We should not be treated with suspicion without good reason, not only because suspects can be subjected to various liberty-infringing powers such as arrest and detention, the use of which should be carefully limited, but also because the state must treat us with that civility. The right to silence prevents self-incrimination, protects the right to privacy, prevents "cruel choices", and prevents abuse of power on behalf of the police and courts.

Redmayne's "harm" test gives us an analysis that suggests that, where an unqualified right to silence exists, no quantifiable harm is caused to police investigation as a result. Until I see evidence to the contrary, given the reasons to have a right to silence, I find it difficult to see where opponents of the right come from.

[Shinrei]

POOPOO MCBUMFACE, on 15 August 2012 - 10:50 AM, said:

Redmayne's "harm" test gives us an analysis that suggests that, where an unqualified right to silence exists, no quantifiable harm is caused to police investigation as a result. Until I see evidence to the contrary, given the reasons to have a right to silence, I find it difficult to see where opponents of the right come from.

I am not familiar with this. Can you elaborate/provide a source?

I can think of at least one instance in my own personal life where I'm presumed guilty until I prove myself innocent, and it pisses me off every year I have to do this FBAR reporting. Doubly so, because soon I would have to do it for my daughter who hasn't even turned 1 year old. Basically, I have to report all of my bank information (including branch and account number) to the federal government JUST IN CASE I'M DODGING TAXES OR AM FUNDING TERRORISTS.

http://www.irs.gov/b...=148849,00.html

Quote

If you have a financial interest in or signature authority over a foreign financial account, including a bank account, brokerage account, mutual fund, trust, or other type of foreign financial account, the Bank Secrecy Act may require you to report the account yearly to the Internal Revenue Service by filing Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR).

The FBAR is required because foreign financial institutions may not be subject to the same reporting requirements as domestic financial institutions. The FBAR is a tool to help the United States government identify persons who may be using foreign financial accounts to circumvent United States law. Investigators use FBARs to help identify or trace funds used for illicit purposes or to identify unreported income maintained or generated abroad.

Which is why my wife has opened accounts in her name, and we've moved all our money there. She's a foreign national, so they can't touch her or force her to report. Some desk jockey has no right knowing how much is in my babies' college fund.

[POOPOO MCBUMFACE]

Rethinking the Privilege Against Self-Incrimination, M Redmayne, (2007) 27(2) OJLS 209-232

Redmayne argues that the presumption of innocence in its most basic form has no logical link to the right to silence, but that there's a colloquial meaning; limiting the exposure of the innocent to liberty-infringing powers such as detention or unjustly onerous investigation. Redmayne refers us to Greenawalt, whose account of the right to silence includes a privilege not to respond to accusations without sufficient evidence.


Not sure how accessible it is without an institutional login, though

This post has been edited by POOPOO MCBUMFACE: 15 August 2012 - 11:59 AM

[Gnaw]

worrywort, on 15 August 2012 - 09:28 AM, said:

The new law would only apply to people arrested for an alleged crime and not to the witnesses who are frustrating police with their silence during police inquiries.


NSW Police Commissioner Andrew Scipione and Police Minister Mike Gallacher said they welcomed the planned change, which would help police who were often frustrated in their inquiries by witnesses who failed to speak up..

Guess I'm slow, but huh?? A law that won't apply to witnesses will make witnesses more likely to cooperate? Really now.

[Adjutant Stormy~]

This is downright foolish.

I'm not familiar with the rest of the country's legal issues - but this sounds like something that would have to be enacted at the highest governmental levels (at least, to avoid getting a righteous smackdown from high court / national government), and not at the provincial level.

It does somewhat boggle my mind that they actually might have the legal authority to alter legal rights in such a fashion.