I'm sorry that some in ACT have reneged on the policy I worked for in Parliament, according to Stuff.
That policy to end the "so-called right to silence" (Ted Thomas J's description of it) took into account the UK experience after ending it more than a decade earlier. It considered the academic writing on both sides (retired NZ judges from both sides of the left/right spectrum considered it to be a poseur right). But mostly it flowed from my determination to focus our policy back on to increasing the availability to courts of the truth, the whole truth and nothing but the truth.
Most of the lay opposition to its abolition is out of a misconception that a right to silence would be replaced by a rule forcing people to give evidence. It would not. An accused could remain silent still. The only change could be that the court is permitted to recognise and draw inferences from a failure to expose yourself to cross-examination.
Such a reform would simply recognise a common sense reasoning that probably finds its way into many (but unfortunately not all) jury findings despite vain judicial instructions not to take it into account. That reasoning is that the person in the court in the best position to know what really happened involving him is the defendant. If he has counsel hounding other witnesses with potentially spurious theories about what happened but declines to offer his own evidence, or to expose himself to questioning, then the court is deprived of the most direct account of the truth.
I’ve discussed the issues with a number in the criminal bar who oppose the change. None of them were persuasive on ways it will increase the risk of false conviction. I sum up their opposition as being based on the fervent belief that they are engaged in a noble game and that it is unfair to change its rules to disadvantage the accused, irrespective of whether the accused is actually guilty or innocent.
Claiming that a procedure is fundamental is the standard reaction of lawyers to change, with no connection to the primary concern of a sound criminal law – that is reducing to a minimum the wrongful conviction of the innocent while meeting the reasonable expectations of victims and the rest of us – that the guilty will usually be found out.
Remember – the law has to be pragmatic. There are many rules that work on probabilities, balancing costs against each other. It may be better that 9 guilty go free than one innocent be convicted. But it is not better that 100 guilty go free than one innocent be convicted. We know that justice miscarries. That does not mean we can abandon consideration of the effects on confidence in it, and its cost, if there are offensive displays in court facilitated by the immunity of an accused from being asked about his own conduct, while he can challenge all others’ accounts.
The right to demand that judges and juries ignore your failure to answer obvious questions is not a foundation element of the presumption of innocence.
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"An accused could remain silent still. The only change could be that the court is permitted to recognise and draw inferences from a failure to expose yourself to cross-examination"
After seeing the way words can be twisted by smart-arse lawyers, how they hector and browbeat and confuse unsophisticated people, it may well be that remaining silent may be in a defendant's best interests.
Inevitably, under this law change that silence is going to be interpreted as evidence of guilt.