Jurors are smart in Barry World

Attorney General Smith out of the loop on tweaking right to silence … Another police-driven initiative … Much squirming in Macquarie Street 

Jurors weighing adverse inferences

THERE'S something peculiar about the way the NSW government has unveiled its plan to kibosh the right to silence. 

The proposals is for an amendment to the Evidence Act so that juries and judges can draw adverse inference against defendants who fail to tell police things they subsequently rely on at trial. 

The announcement was not made by the attorney general Greg Smith - instead it was issued from Premier Barry O'Farrell's office (Aug. 14). 

The whole exercise has Plod's fingerprints all over it. The premier provided two sentences of quotes for his media release: 

"It's been too easy to say: 'I have nothing to say'." 

And this little cracker, in which a few basic criminal justice concepts got rejigged ... 

"Jurors are smart enough to know if there is something suspicious about evidence which suddenly appears at a trial and is designed to get the accused off." 

The next five paragraphs of O'Farrell's announcement were given over to attorney general Smith, which begs the question why didn't the AG make the announcement about the proposed legislative change affecting matters for which he has responsibility? 

Probably because he was kept out of the loop by the real decision makers, Police Minister Gallacher and Police Commissioner Scipione. 

Anyway, Smith was singing from the same sheet. "Smart jurors" was the theme of the day: 

"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. 

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." 

There were also cuddly endorsements from the Gallacher and Scipione. 

Certainly the coppers are frustrated by the mute and dumb routines performed by various identities in the drive-by shooting investigations. 

A month later (Sept. 12) Smith called on the Opposition to support the legislation.  

"The NSW government is closing a legal loophole to stop criminals exploiting the system to avoid prosecution." 

It's heartening that the attorney general of NSW thinks that the right to silence is a "loophole". 

He also told parliament much the same stuff in answering a Dorothy Dix question.  

Police Commissioner Scipione and Premier right behind him

THE provisos are that the the adverse inference from silence will not apply to juvenile defendants; to people with cognitive impairments; where a defendant did not have an opportunity to consult a lawyer about the implications of remaining silent; and where it is the only evidence that the defendant is guilty of a serious crime. 

A telephone advice line is to be trialled. It will be "staffed by lawyers to provide advice to suspects held for questioning by police". 

The amendment is supposedly aimed at "hardened criminals". 

SMH's unscientific online poll on right to silence

THE word on the street is that senior people from AGs and Justice were not involved in these deliberations and were only informed not long before the announcement. 

Smith has been left to carry the can. 

There was this exchange in parliament on Sept. 12: 

Paul Lynch (ALP): Do you support it?

Speaker: Order! I caution the attorney general not to respond to interjections.

Greg Smith: This amendment has my wholehearted support and has done for many years. It has the support of prosecutors and police and for once I would like to hear the Opposition express its support for the police. 

Support of the prosecutors! That's interesting. No welcoming remarks have been forthcoming from DPP HQ.  

Here's a former prosecutor, and now first law officer of the state, dragooned into supporting something he knows is a piece of law 'n' order nonsense. 

We've had the new consorting and criminal organisations legislation, which invested in the police more extravagant powers

What's next? 

The proposed presumption in favour of release which came out of the review of the Bail Act, done by former Supreme Court judge Hal Sperling, is likely to be fenestrated or ditched altogether. 

When the recommendations came out in June the shock jocks went bananas. 2GB's Ray Hadley led the charge, saying that the AG was a "leftie masquerading as a conservative". 

Yet, no one from the "left" of the Liberal Party rallies in support of Smith's justice initiatives. 

There are other hindrances to the smooth workings of an efficient criminal justice system. 

The onus of proof definitely needs re-working, along with its louche bedfellow, innocent until proven guilty. 

Smith is not so much a leftie masquerading as a conservative, but an auctioneer in a shiny suit at the law 'n' order sales. 

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Cautions

Here's the existing police caution: 

"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?"

Here's the proposed new caution: 

"You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?" 

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Exposure draft of legislation  
Comments close Sept 28

Dorothy Dix Q & A