Crime victims want an end to defendants "hiding" behind the right to silence in court but civil rights experts and defence lawyers argue this would be a serious erosion of human rights.
Sensible Sentencing Trust spokesman Garth McVicar outlined a proposal to ditch defendants' right to silence when he headed up a high-profile conference at Taupo at the weekend. He said at present the law sheltered people accused of serious crimes including murder.
"It doesn't mean defendants will be forced to talk it just means if they don't, juries can take it into account."
There were two murder trials involving Waikato people last week where defendants did not take the stand: Joshua Woodcock who was found guilty of the manslaughter of his baby daughter, and the three men found guilty of murdering Waharoa man Ollie Gage in a drive-by shooting.
The Sensible Sentencing Trust's lawyer, former ACT MP Stephen Franks, said New Zealand should follow Britain's lead in allowing police to advise defendants that their silence could be used against them, and in permitting juries to "draw a sensible inference".
"There are occasionally valid reasons for invoking the right to silence but it has become part of the ritual game-playing by justice system insiders."
Police-rape complainant Louise Nicholas, who lost her own case but sparked a damning inquiry into police conduct, said the right to silence should be abolished. "Nine times out of 10, the defendant exercises his right to silence, but the victim has to take the stand and have her entire life raked over and her character put under the spotlight," she said.
But the call to remove defendants' right to silence was criticised by two senior Waikato defence lawyers.
Paul Mabey QC said a law change forcing defendants to take the stand would erode a fundamental legal right that the prosecution had to prove the guilt of the defendant.
"The right to silence is fundamental and preserved in the Bill of Rights. It's consistent with the presumption of innocence, and no person must prove their innocence," Mr Mabey said.
Defendants "should not be forced to give evidence".
"I'm of the firm belief juries judge on the evidence, and when the judge said the fact the accused has not given evidence is irrelevant, juries take that on board."
The suggestion the legal system favoured defendants was "just wrong", Mr Mabey added.
"We are in real danger of shifting the pendulum too far the other way. I was concerned the minister of police (Judith Collins) attended the Sensible Sentencing Trust conference this is not a political issue, it's an issue of fundamental human rights."
Philip Morgan QC described any push to end the right to silence as "just nonsense, really".
"It's just wrong. A New Zealand jury hearing an accused electing not to give evidence is perfectly entitled to decide the case on the evidence it has heard. I don't think what is being proposed here will have a material interest at all."
Juries "can't simply say `ah well, he didn't give evidence, therefore he's guilty'," Mr Morgan said. He said complainants had "substantial protections" to prevent their lives being "raked over" in trials, and judges could step in if needed.
"There are whole areas the defence can't even go without getting the judge's permission beforehand."Hamilton lawyer Roger Laybourn said he felt it was a "stupid suggestion" and another knee-jerk reaction to recent high-profile cases and the crime rate.
The Government seemed keen to change "well-established legal principles".
He said with modern juries there was "always a risk" they would take an inference of guilt from a defendant's decision not to testify.
Ms Collins told the conference: "Law-abiding New Zealanders are sick and tired of seeing their rights eroded and, in many cases, ignored in favour of the rights of criminals. This Government is not standing for that."
-With The Dominion Post
- © Fairfax NZ News
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