I would like to know why Kellie Tranter thinks that an accused person has a "fundamental right" to keep his/her mouth shut while the defence solicitor lies his/her head off, defaming, degrading, and making claims against victims that outside of the court would attract charges of "Criminal Defamation".
The accused has a "fundamental obligation" to tell the truth, the whole truth, and NOTHING but the truth.
The proposed changes are only the thin edge of the wedge but at least it is part of the way in, and I can assure Kellie Tranter that those of us who have had a gut full of the corrupt Legal Aid system will be driving the wedge all the way in.

What a sensationalist article by Ms Tranter. The right to silence is not being removed; what is changing is the probative value of that right with prosecuting processes being able to infer, by raising in court, the circumstances of that decision to remain silent, especially when a last minute 'alibi' is presented to the court when no such alibi was raised in the first instance.

The Defence will have the right to challenge those prosecutional inferences as usual.

The article is an inadequate presentation of the issue.

I agree with the views of both the previous contributors. I'm sure Ms Tranter has her heart in the right place, but if the justice system were left to her and her cohorts, our streets would be awash with all manner of ne'er do wells.

Until one has worn a blue uniform you have no conception how difficult it is under the current practice, to present a good brief of evidence, one that will both stand-up to close judicial scrutiny and be sufficiently persuasive in court.

The proposed removal of the right to remain silent, I believe to be a step in the right direction. If an individual believes they have no case to answer, would it not be in his or her interest, to willingly and fully collaborate with police, in order that they may quickly clear up any discrepancies or inconsistencies, in the matter under investigation. Thus permitting investigators to direct their enquiries in other direction(s) ?

Unfortunately for Ms. Tranter and criminal lawyers (a fairly large group, competing with bankrupt lawyers), there is no doubt of public support for the changes proposed by Mr. O'Farrell. For the record he states this proposal as:

''We are going to amend the law to allow juries and judges to take an adverse inference from an accused person who refuses to divulge facts to police but then later produces so-called evidence in order to provide an excuse.'' SMH 15/08/12

No lawyer I have ever spoken with has been able to produce a justification of the right not to have adverse inference made in these circumstances, nor indeed does Ms. Tranter. This is hardly surprising. The claim that such change will lead to miscarriages of justice really needs some factual backing - on the surface the reverse would seem the logical outcome.

This is a scam by the police. The only time it could really be justified is when a criminal arranges an alibi at a date after their arrest. They could not tell the investigating officers at the time since they didnt yet know what their alibi was.

The police have not used this argument as far as I know.

The real reason that I can see is that it will pressure people to talk to the police and feel as if they MUST answer their questions.

This is very wrong. People DO have a right to silence. The police have a job to do and it is not your responsibility to help them in that job. Do you help the checkout chick scan your groceries or the fireman put out your kitchen fire? Why would you want to help the police, who in this context, want to harm you and take away your freedom?

Unless of course you are guilty in which case you should admit everything and take your punishment.

Mikk:

< Unless of course you are guilty in which case you should admit everything and take your punishment >.

...Yes Mikk, but the Police also have no right to “verbal” the accused, remember? The public have been dragged down this rocky path of Police corruption and Public injustice. I am very surprised little comment has been directed to the “back-door” resurrection of “Verballing”!

...I agree with your post until it falls short on the last sentence. It only remains the obligation of the accused to stand before the Court and answer the charges before himself truthfully, and not to admit to anything that may stray outside of that context of the charges; (keeping in mind also, the original Police charges may change on numerous occasions before the day in Court), and the place to do this is in a court room, and in front of a Judge in the last instance: Not in a police cell or Police interview room in the first instance!

Coming to a your state - A Police State.

DIVER DAN...

I always read most of what you write apropos the justice system so that I might further acquaint myself with prevailing police practice, and procedure.

It would seem inter alia that you have an immense font of knowledge when you so clearly articulate for us all, the internal stratagems that investigative police may employ in order to discover the author of a crime.

Therefore a question if I may, in your unselfish endeavour to further enlighten another contributor herein, you mentioned the word 'verbal', and later in your thread, 'verballing'. A process I gather that is apparently practised by authorities to guide a suspect through a particularly onerous Q & A's session ?

If in this instance I'm on the wrong track DIVER DAN, I'd appreciate the benefit of your wise counsel, by providing me with an explanation as to what exactly is meant by the term 'verbal or 'verballing'? So, in future I might not appear quite so unscholarly, should this fascinating subject, is ever again raised.

Thank you.

o sung wu:

FYI: Verballing:

English. [edit] Noun. verballing (uncountable). The putting of damaging remarks into the mouths of suspects during police interrogation.

Cheers...

And a very good afternoon to you there, DIVER DAN...

I too have access to a copy of the OED, nonetheless I do thank you for giving me that exemplary definition in any event.

I'm sorry, I'm not quite sure I follow your connection to this , how exactly do the authorities or police achieve such a process, when a 'Record of Interview' is both recorded and video taped, contemporaneously with the interview ?

I understand there was (once) a curious practice concerning the word 'verbal', and by extension, 'verballing', apparently where a statement containing a damaging admission alleged to have been made to police, is offered up as evidence by the crown...I believe it goes ?

Again, I'm sure that archaic and outmoded activity could never be accomplished, given the careful CCTV and sound monitering that occurs during a Record of Interview that is taken in these times.

Or is it DIVER DAN that you might be persuaded otherwise ?

Any particulars that you may have in your possession, in relation to any compelling evidence of official police corruption, should in the first instance, be reported to police.

o sung wu:

...Your feigning ignorance of Police corruption in your post is totally unconvincing. I refer you to the “Wood royal commission” as one of a string of examples which deflate the myth of Police integrity; officially exposing police corruption in their use of "framing" methods, supported by "verballing" tactics, which elicited false confessions from the accused:

...I am an avid supporter of the right of the accused to silence, with good sound (observational) reason for the imperative it is, in protecting the rights of the accused before trial.

...As the author “correctly” points out in her article, there is no legitimate reason to remove (or dilute) this basic (human) right of protection for the accused, under any current circumstances in NSW. Put simply, Police cannot be trusted with the truth on all occasions!

Good evening (again) DIVER DAN...

"...Put simply police cannot be trusted with the truth on all occasions..." !

Then, what specifically, are those occasions, where the police aren't to be trusted with the truth ?

Has there been corruption within the policing industry, yes of course.

Corruption exist everywhere, to a greater or lesser degree. NO institution anywhere, is immune from it.

Where a 'power' is conferred and imposed upon any individual, there is always a chance, the ugly spectre of corruption may at some time, emerge.

The police are all we have between us and anarchy and absolute chaos. Yet you, and some others in this place, take every opportunity to lambast, criticize and harangue 'em, sometimes with baseless allegations of wrongdoing.

When we're in bad trouble, the first person we want to see is a copper. Yet often, he's the last person you'd wish to have a drink with.

I would respectfully suggest, those of you who gleefully enjoy pillorying police and putting the boot in. Perhaps you should first, 'bung' on a blue uniform and do a shift or two at Darlinghurst, or the Cross, or any other simmering pool of humanity, you care to name.

And whilst doing your shift, some unjustified accusation(s) of you engaging in some petty corrupt behaviour are levelled at you. I'd suggest those accusations are the least of your worries. All you want to do is get home in one piece to you wife and kids at the end of your shift.

Thank you once more DIVER DAN, for the opportunity of giving me a brief glimpse into your vast reservoir of knowledge, and into the impenetrable mechanisms of police probity, rectitude and morality. I'm sure all those concerned will be ever in your debt.

Good night my friend.

O sung wu:

...Obviously you expose a personal passion for the “thin blue line”! I have an opinion of the police force too, however I have deliberately avoided the mention of that opinion here, in order to concentrate debate on the intended issue of the article. When I offer criticism of the police force in the above posts, it is as a direct consequence of Police involvement and its effects on the course of Justice through the Courts, (which is where the outcome of the Justice system can be challenged freely through its many levels).

...The Police force is simply an agent of the courts, and as such must be above question in their methods of gathering evidence. I point out in my posts, that this is an area in the past where the Police force has been unreliable in its ability to deliver consistent and just outcomes; to give Police the extra power, (as proposed by the O’Farrell Government in NSW), to remove the right of the accused to “silence”, makes life easier for the Police force, at the expense of the accused and their right to a fair trial, and must be resisted; the point of this excellent article by Kellie Tranter

Hello there DIVER DAN...

A novel position I'm sure; that you purposely avoid enunciating your own personal opinion of police in order to specifically concentrate on the views of Ms Tranter.

You've not chosen to furnish any of us with your reason(s), why you support Ms Tranter's obvious intransigence in not supporting this new government initive.

Other than to again, launch into another of your usually vague, and resolute edicts of police corruption. I suppose it's your contention, if this vision does receive 'the nod', police will once again fervently plummet into some unlawful practice ?

Conceivably, they'll once more engage in a type of archaic misconduct of a kind, hitherto known as 'verballing'? No matter the strength of any arguement mounted to the contrary, you'll not be pursuaded otherwise, will you DIVER DAN ?

Notwithstanding all the protections that are now provided (CCTV & recording) to an individual during an enquiry and subsequent interview. No, to you my friend, the coppers are corrupt, and shall remain, ever corrupt !

How sad to think what little respect you have for law enforcement in this great country, per se.

You stated in your previous thread, you thought that I had, a close personal accord or affinity with 'the thin blue line'. You well know I do, and I'm proud of it !

Regrettably, I think that you too DIVER DAN have, at some time, had an adverse (personal) connection with police ? If not, why is it so necessary for you to level such persistent criticism and denunciation of them ?

And why ever would you bear such protracted antipathy and overt enmity towards them, if for no other reason you've had some negative dealings with them.

You, Ms Tranter, and many others may be lucky, and government decides not to go ahead with this move. You'll be happy then, I suspect. It's always fashionable to be anti- something I suppose.

Thank you anyway for your response DD, I find it most instructive indeed.