O'Farrell Government weakens 'right to silence' laws.
The 'right to silence' laws exist as a protection for accused persons who were often, and in
some periods of history, always, being tortured to obtain a confession. A confession
obtained under the threat of violence or by actual violence is now inadmissible in any trial
or hearing. However, prior to the 'right to silence' existing, many if not most confessions
were obtained by the threat of or more often actual violence or torture.
The 'right to silence' is not absolute. There are many Acts in which there are sections
which deny a person the 'right to silence'. The Australian & NSW Crime Commission Acts
are the most notable examples. There are many others.
For some unscrupulous police, beatings have been replaced with threats. Threats to
charge the accused person's partner is the most obvious. Or threats to have community
services remove their children. Threats don't leave obvious bruises and they are not
picked up by video records of interview. (ERISP) Threats are made before any video
machine is turned on. And unless the threat is admitted an accused person has buckley's
chance of proving it was made.
It is in this light the O'Farrell government seeks to weaken the existing 'right to silence'
protections that we now have. It is one more step in whittling them down to almost nonexistence.
While the suggested changes, of themselves, appear innocuous enough, it is
one more step in reducing our rights. With the consorting, criminal association & other
non-association laws coming into existence recently our civil liberties are being perilously
reduced to those of third world countries.
While these changes appear innocuous, the reality is accused persons or persons of
interest are being asked to forgo their 'right to silence' at a time when they are under high
stress and immense pressure from police to speak to them. Psychologically, these persons
are not in a position to think clearly. And if they make any mistakes or get any facts wrong
they will be cross-examined about these at a subsequent trial to their detriment. The reality
is, if these changes are made then persons will, effectively, have to give up their entire
'right to silence', they will not be able to give up part of them.
But also, these changes can be self-defeating as any smart criminal will pre-arrange his/
her alibi before committing a crime, thereby defeating the changes and increasing their
chances of getting away with the crime.
The need for these changes has, yet again, been blamed on the need to curtail Outlaw
Motorcycle Club drive-by shootings. But, the police have said on numerous occasions that
the only drive-by shootings attributable to OMCs was a couple of associates of 2 clubs.
The other 24 odd clubs in Sydney and their 950 odd members have no role whatsoever in
these shootings or in organised crime.
The government must re-think these proposed changes as we have considerably more to
lose than we have to gain.
WAYNE BAFFSKYHonarary Counsel, United Motorcycle Council (NSW)