KEY POINTS:
More than two-thirds of people think juries should be told if a person on trial has previous criminal convictions and about 40 per cent support abolishing the right to silence.
A Herald readers' poll has found 68.4 per cent of people think a defendant's criminal history should be
disclosed to the jury, while 27.8 per cent do not.
At present, juries are not automatically told of a person's previous convictions - a position the Law Commission and most defence lawyers say is correct and fundamental to maintaining the right to a fair trial.
But those advocating a change, including the Sensible Sentencing Trust, argue juries should be told about a defendant's criminal history to give a clearer picture of the case.
In October, high-profile criminal lawyer Kevin Ryan QC shocked colleagues when he agreed with this view and said the right to silence should be abolished.
Speaking on the day of his retirement, Mr Ryan said suspects' ability to invoke the right to silence and refuse to speak to police was outdated and, in reference to the Kahui twins case, "assisting evil".
His opinion was shared by 41.7 per cent of Herald readers, who agreed the right to silence should be ended.
However, 50.6 per cent opposed a change, supporting the commission's view that a suspect needed the right to balance the power of police.
"This is an old common law right that goes back a very long time in our law," president Sir Geoffrey Palmer said.
Abolishing the right to silence would be "an enormous change" and would need careful weighing.
"If you're not careful, you end up with a police state ... because there is no restriction [on police questioning suspects]," he said.
But the trust wants to not only abolish the right to silence but to allow juries to know a defendant has refused to speak to police.
"The judge should be able to instruct the jury to take it into consideration," spokesman Garth McVicar said.
In Britain, if people exercise their right to silence, it can be brought up later in court, implying they had something to hide. Prosecutors in New Zealand cannot make that implication.
Mr McVicar also supports juries being allowed to know defendants' criminal histories, saying it is third in a list of 10 points advocated by the trust.
The first is life imprisonment to literally mean life for premeditated or aggravated murder, and the second, preventing violent and repeat offenders from receiving bail under changes to the Bail Act.
Mr McVicar said: "The best prediction of the future is the past history. Our criminal justice system has become so offender-friendly that defence lawyers will use every trick in the book and a few new ones to get their clients off.
"If the jury knew what the past history was you would see less of them [defendants] being discharged and found not guilty."
But the Auckland District Law Society's outgoing president, Gary Gotlieb, said no change was needed because under case law, prosecutors could apply to a judge to disclose a defendant's previous convictions if the convictions related to the present charge or were of a "similar fact situation".
"But what's the relevance of having someone who's facing an aggravated assault charge to put before the court all their previous terrible driving experiences?" Mr Gotlieb asked.
"There are a lot of cases where it's totally prejudicial."
He also agreed the right to silence needed to be upheld to counter "vigorous interview procedures" by police.
"Why do police who've been looking at a case for two or three months decide to go around to someone's place at 6 o'clock in the morning?
"It's a bit of an ambush that takes place, so the right to silence is important."
Among Herald readers, there was little difference to responses between men and women to the question of whether juries should be told previous convictions, although more women than men (44 per cent to 39.2 per cent) thought the right to silence should be ended.
On both questions, the difference between Auckland readers and the rest of the country was marginal.
The poll also asked whether the number of criminals sentenced to prison was too high (29.9 per cent), too low (32.2 per cent) or about right (27.3 per cent).
More than 63.3 per cent supported greater use of home detention for non-violent criminals.
