Deborah Coddington

Deborah Coddington is a Herald on Sunday columnist

Deborah Coddington: Losing the right to silence must not be Kahui legacy

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The Kahui whanau refused to co-operate with police over the deaths of Chris and Cru. Photo / Supplied
The Kahui whanau refused to co-operate with police over the deaths of Chris and Cru. Photo / Supplied

Six years ago New Zealanders were justifiably outraged when the Kahui whanau refused to co-operate with police investigating the deaths of twins Chris and Cru.

In 2008 the twins' father Chris was acquitted of their murder, prompting law commissioner and former prime minister Sir Geoffrey Palmer to come out with the knee-jerk reaction that perhaps it was about time we did away with the right to silence for those accused of criminal offences.

He was quoted in the New Zealand Herald: "It is not a change that would happen quickly, but talking about it is not wrong."

Be very afraid, because it might happen very quickly.

Just before Christmas, Justice Minister Simon Power introduced to Parliament the innocuous sounding Criminal Procedure (Reform and Modernisation) Bill.

This bill will do away with your right to silence. So if you have a car accident and are charged with careless use of a motor vehicle, or you decide to defend a speeding ticket, or one of your students alleges you touched him/her inappropriately, those sacred words you always thought you could rely on "you have the right to remain silent" will no longer be there to protect you.

Are you listening, we the sheeple, who treasure individual freedom and responsibility?

These pieces of legislation always have such Orwellian names, but they give enormous powers to the state. Just like the Search and Surveillance Bill which also threatens your right to silence if you're just an acquaintance of a group who allegedly commit a crime.

And the people who support these laws always smile reassuringly and say comforting things like, "if you're innocent and law-abiding you have nothing to fear".

Basically the Criminal Procedure Bill will require the accused to provide police with all the details of their defence before going to court.

This is bad because it is important the prosecution's evidence is truly tested, especially since the state has enormous resources.

Therefore the police should not know what's coming when they are questioned in court, so their answers are spontaneous and honest.

Any of us can end up facing a traffic charge after an accident. This won't just affect the so-called criminal underworld. But now this historical right is about to be tossed aside because some cabinet minister, who will retire in a few years, finds it inconvenient.

Power justifies his bill in the name of speeding up and reducing costs in the justice system. However, his own flunkeys couldn't even come up with significant research to justify jettisoning this basic freedom, stating it would be "difficult to identify robust estimates of the savings in preparation and trial time that could be made".

Coupled with the Search and Surveillance Bill, it gives enormous powers to the state.

Of course this is supported by Sensible Sentencing, an organisation which believes the right to silence shelters people accused of murder. But juries here can already draw inference from an accused's refusal to give evidence. We don't need to copy Britain's new legislation and return to the dark Star Chamber days of the 16th century.

Only the Greens voted against the bill's first reading. Shame on you Act - are these the freedoms you traded for David Garrett and the 70,000-plus Sensible Sentencing votes?

The Criminal Bar Association and the Law Society will object, but the latter organisation, being such a bunch of sissies, I fear will never frighten Simon Power. If this were happening in America there would be marching in the streets, but here lawyers are too concerned with the cocktail circuit.

So it is up to anyone else who treasures hard-won freedoms. We're innocent until proven guilty and that should never, never change. I do trust the police, but we all know - and have seen recent proof - that some police tell lies, fabricate evidence, change their stories.

Under this bill, if you are charged with an offence, you will have to disclose your defence ahead of your trial and the police will be able to change their evidence every step of the way. Instead of the police having to prove beyond reasonable doubt you are guilty, you will have to prove you are not guilty. Do we want that to be the Kahui legacy?

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