Dead babies and the right to silence
Posted by: Deane F on 16 October 2006
New Zealand has recently seen a couple of high profile homocide investigations stymied by the familys' refusal to talk to the police.
The first case involved 3 month-old twin baby boys, Chris and Cru Kahui. They died on June 18 after five days on life support. The post mortem showed massive head injuries due to blunt force trauma, among other injuries. The extended family has pretty much closed ranks and are refusing to talk to police.
The second case involves a baby who appears to have been shaken to death. The family have not been talking to police but after the police went public about it the family have said they will be instructing their lawyers to make statements to police.
There has been much discussion about the right to silence and suggestions have been made that a court ought to be able to draw an inference from a suspect's or a witness's silence (and presumably that a judge ought to be able to direct a jury to do so in their deliberations).
I find it difficult to defend the right to silence and the principle that the burden of proof lies firmly upon the State (or the accusers in the case of a private prosecution) without minimising the death of the babies.
However, many freedoms and rights that we enjoy have evolved in response to tyrannical government. That these freedoms sometimes result in injustices or undesirable outcomes is seen as a necessary evil and a trade-off against worse things happening if these rights and liberties are diluted.
I personally think that the right to silence is absolute and ought to remain so. How can a mature democracy repond otherwise?
The first case involved 3 month-old twin baby boys, Chris and Cru Kahui. They died on June 18 after five days on life support. The post mortem showed massive head injuries due to blunt force trauma, among other injuries. The extended family has pretty much closed ranks and are refusing to talk to police.
The second case involves a baby who appears to have been shaken to death. The family have not been talking to police but after the police went public about it the family have said they will be instructing their lawyers to make statements to police.
There has been much discussion about the right to silence and suggestions have been made that a court ought to be able to draw an inference from a suspect's or a witness's silence (and presumably that a judge ought to be able to direct a jury to do so in their deliberations).
I find it difficult to defend the right to silence and the principle that the burden of proof lies firmly upon the State (or the accusers in the case of a private prosecution) without minimising the death of the babies.
However, many freedoms and rights that we enjoy have evolved in response to tyrannical government. That these freedoms sometimes result in injustices or undesirable outcomes is seen as a necessary evil and a trade-off against worse things happening if these rights and liberties are diluted.
I personally think that the right to silence is absolute and ought to remain so. How can a mature democracy repond otherwise?
Posted on: 17 October 2006 by Rico
interesting argument, Deane. Agreed, a right to silence is worth defending.
I suspect significantly greater headway would have been made in the kahui case if the police had not prevaricated before launching their investigation. cultural sensitivity is all well and good; should this over-ride something as serious as murder where clearly the primiary laws of society have been broken? As a WASP new zealander I am sure my family would not have been afforded the same opportunity to match stories, obfuscate, lie, and close ranks under similar circumstances that the police have gifted this family of scumbag killers (I am aware that sounds emotive - it is unquestionable that the babies died of un-natural causes), in this case.
NZ's apartheid aside, can we really argue NZ features a mature democracy? our govt runs rough-shod over the law on a regular basis; nary an eyelid is batted by 'the man in the street'.
I suspect significantly greater headway would have been made in the kahui case if the police had not prevaricated before launching their investigation. cultural sensitivity is all well and good; should this over-ride something as serious as murder where clearly the primiary laws of society have been broken? As a WASP new zealander I am sure my family would not have been afforded the same opportunity to match stories, obfuscate, lie, and close ranks under similar circumstances that the police have gifted this family of scumbag killers (I am aware that sounds emotive - it is unquestionable that the babies died of un-natural causes), in this case.
NZ's apartheid aside, can we really argue NZ features a mature democracy? our govt runs rough-shod over the law on a regular basis; nary an eyelid is batted by 'the man in the street'.
Posted on: 17 October 2006 by Deane F
Rico
A good point. I don't think we can argue that NZ features a mature democracy. To have a mature democracy requires a mature electorate and the lack of that too is implied by your last sentence about 'the man in the street'.
The electoral reforms in the 1990s did not go far enough in my opinion - we need to start thinking in terms of a bicameral parliament at some stage of our growth.
And yes, I think the prevarication by the police was unacceptable. The exercise of executive power (and the police are an arm of the executive and only ostensibly independent) should be consistent and equivalent to the seriousness of a situation. There ought to have been more urgency in this case - particularly as the first 48 hours of a homicide investigation are said to be the most important.
The closer one draws to these situations the more complex they become. But the judicial response will be to paint over the complexity when the principles are this plainly in operation - and that is as it should be, I think.
The State must prove; the accused ought not be expected to participate in their downfall.
A good point. I don't think we can argue that NZ features a mature democracy. To have a mature democracy requires a mature electorate and the lack of that too is implied by your last sentence about 'the man in the street'.
The electoral reforms in the 1990s did not go far enough in my opinion - we need to start thinking in terms of a bicameral parliament at some stage of our growth.
And yes, I think the prevarication by the police was unacceptable. The exercise of executive power (and the police are an arm of the executive and only ostensibly independent) should be consistent and equivalent to the seriousness of a situation. There ought to have been more urgency in this case - particularly as the first 48 hours of a homicide investigation are said to be the most important.
The closer one draws to these situations the more complex they become. But the judicial response will be to paint over the complexity when the principles are this plainly in operation - and that is as it should be, I think.
The State must prove; the accused ought not be expected to participate in their downfall.
Posted on: 17 October 2006 by Rico
quote:bicameral parliament
crikey Deane, I had to look that one up! I wonder if we'd effectively get better value for our money than our implementation of MMP, with a bicameral system? I guess that it needn't be either/or. I think an additional layer of governance provided under such a model would be healthy for NZ - certainly any notion of a retrospective law passed to absolve a governement of wrong-doing would undergo greater scrutiny were there a federal upper house!
You clearly got my gist (thankfully) re electoral maturity - I certainly wasn't able to articulate that effectively.
absolutely.quote:The State must prove; the accused ought not be expected to participate in their downfall.
regards
Posted on: 17 October 2006 by Stuart M
The right to silence is interesting considering the USA passed the "Torture Bill" how quiet would you keep!
Posted on: 17 October 2006 by JonR
Hi Rico,
Forgive my ignorance, but what is a "WASP new zealander"?
Cheers.
Forgive my ignorance, but what is a "WASP new zealander"?
Cheers.
Posted on: 17 October 2006 by Rico
Jon, I looked up http://en.wikipedia.org/wiki/WASP and take the more australian connotation. hope that helps!
Posted on: 17 October 2006 by JonR
Thanks Rico!
Posted on: 18 October 2006 by Don Atkinson
I think the rules in the UK are (more or less)
You have the right to remain silent
Anything you fail to mention when questioned but
Later rely on in court
May (not will) harm your defence.
I presume this means that when the police ask " Where were you between 10:00 pm and 11:00 pm on the night of 17th October 2006" you have the right to remain silent.
When you later rely on the fact that you were screwing your neighbour's wife, and she is happy to provide you with an alibi, the court might not be convinced, especially if this is the only defence you can offer.
cf your own wife will no doubt be totally convinced by your evidence in court............
Cheers
Don
You have the right to remain silent
Anything you fail to mention when questioned but
Later rely on in court
May (not will) harm your defence.
I presume this means that when the police ask " Where were you between 10:00 pm and 11:00 pm on the night of 17th October 2006" you have the right to remain silent.
When you later rely on the fact that you were screwing your neighbour's wife, and she is happy to provide you with an alibi, the court might not be convinced, especially if this is the only defence you can offer.
cf your own wife will no doubt be totally convinced by your evidence in court............
Cheers
Don
Posted on: 18 October 2006 by andy c
Don,
you are right, of course.
The UK caution is in three parts, as you have laid out.
"(1)You do not have to say anything. (2)But it may harm your defence if you do not mention when questioned something which you later rely on in court. (3)Anything you do say may be given in evidence."
But, what is being talked about it a wider topic - the issue around self-incrimmination. This is in fact a far wider reaching topic that just the caution, and deals with disclosure of other facts, or complying with requests, which may self incrimminate...
you are right, of course.
The UK caution is in three parts, as you have laid out.
"(1)You do not have to say anything. (2)But it may harm your defence if you do not mention when questioned something which you later rely on in court. (3)Anything you do say may be given in evidence."
But, what is being talked about it a wider topic - the issue around self-incrimmination. This is in fact a far wider reaching topic that just the caution, and deals with disclosure of other facts, or complying with requests, which may self incrimminate...
Posted on: 18 October 2006 by Deane F
It is also my understanding that, if you are responding to questions but all of a sudden make no answer on one question; the court may draw a proper inference from your failure to answer.
Posted on: 18 October 2006 by Don Atkinson
quote:But, what is being talked about it a wider topic - the issue around self-incrimmination. This is in fact a far wider reaching topic that just the caution, and deals with disclosure of other facts, or complying with requests, which may self incrimminate...
I hadn't intended that my "rules" were limited to the caution given by a policeman (BTW thanks for adding the bit about anything you do say....) I had assumed that the right to remain silent continued throughout the entire legal system. However, I am not familiar with our legal processes (thankfully).
I assumed our proces is limited to two parts ie the Police/Customs/Imigration services who investigate/collect evidence (including evidence obtained by questioning-assuming the suspect co-operates) and then the Crown Prosecution service who decide whether the evidence is good and sufficient and present a case to a Judge/Jury, again including questioning the suspect, who I assume has the right to remain silent in court.
But I am not certain about this last point (or any of my other assumptions for that matter) Can the defendant remain silent in court? If the defence don't put the defendant on the stand, is the prosecution allowed to call him for questioning? (I assume not) If the defence do call the defendant and he (naturally) answers the defence lawyer's questions, does he have the right to remain silent when questioned by the prosecution? (I asume not, and I assume the Jury are allowed to draw significant inferrence from his silence?)
I imagine that UK rules differ from those in the USA but that in NZ the rules are much the same as in the UK?
Perhaps somebody could take on the teaching role and clarify the existing rules (in different countries). Andy? Deane?
Cheers
Don
Posted on: 18 October 2006 by andy c
The prosecution are required to prove the whole of their case. The defence are then allowed to cross examine, this cna involve the accused giving evidence. A defendant does not have to enter the witness box and give evidence. He/she cannot be forced to do this - they do this voluntarily. If they do so They then fall into the category of competant witness - in that they are competant for both the prosecution and defence re providing of evidence.
This is very simplistic, and is obviously based on court processes. If you wish for more specific info, fire away.
In relation to the caution, this MUST be given:
When a person is arrested, or
when the prosecution wish to use any replies, or any silcences etc, to any questions regarding their suspected involvment in an offence, in evidence.
What else would you like to know?
This is very simplistic, and is obviously based on court processes. If you wish for more specific info, fire away.
In relation to the caution, this MUST be given:
When a person is arrested, or
when the prosecution wish to use any replies, or any silcences etc, to any questions regarding their suspected involvment in an offence, in evidence.
What else would you like to know?
Posted on: 18 October 2006 by Deane F
The New Zealand system is based on the English common law system - but we don't have common law crimes anymore; that is to say that if you commit an offence in our jurisdiction then it will be against a law that can be found in the statutes.
To add to what Andy has said I'd mention that a jury may not draw any inference from the fact that a defendant has not taken the stand.
I'd be interested to know how long the British police have been cautioning suspects.
As an aside, the caution given to suspects in the US, known as the "Miranda warning" (after Miranda v Arizona), came about after Ernesto Miranda was granted a retrial because he was not informed of his right to silence or to an attorney. At the retrial he was found guilty.
To add to what Andy has said I'd mention that a jury may not draw any inference from the fact that a defendant has not taken the stand.
I'd be interested to know how long the British police have been cautioning suspects.
As an aside, the caution given to suspects in the US, known as the "Miranda warning" (after Miranda v Arizona), came about after Ernesto Miranda was granted a retrial because he was not informed of his right to silence or to an attorney. At the retrial he was found guilty.
Posted on: 18 October 2006 by Don Atkinson
Thanks Andy
When somebody is "helping police with their enquiries" i presume they are not under caution and anything they say cannot be used in court. But could be used to open up further lines of enquiries?
When somebody is arrested they must be cautioned and have a right to remain silent (as noted above.
Suspects can be held for questioning for 48 hours (habeous corpus?) but this can sometimes be extended by a magistrate or judge. Again the right to remain silent.
Who decides whether to "charge" a person with a crime? Presumably this can only be done if "someone" (who?) thinks there is sufficient evidence to bring a succeful prosecusion?
Are the police or the prosecusion service allowed to continue questioning suspects once they have been charged, eg if new evidence comes to light?
When does a "suspect" become a "defendant"?
Presumably the right to remain silent was hard-won after events such as the Spanish Inquisitions when silence (or a failure to give the right answer within two seconds of hearing the question) was proof of guilt? Is there any evidence that this is in the minds of magistrates, judges or jurys today? even though it ought not to be?
Hope these questions arn't too mundane....
Cheers
Don (who knows he's always guilty of something, but never certain exactly what)
When somebody is "helping police with their enquiries" i presume they are not under caution and anything they say cannot be used in court. But could be used to open up further lines of enquiries?
When somebody is arrested they must be cautioned and have a right to remain silent (as noted above.
Suspects can be held for questioning for 48 hours (habeous corpus?) but this can sometimes be extended by a magistrate or judge. Again the right to remain silent.
Who decides whether to "charge" a person with a crime? Presumably this can only be done if "someone" (who?) thinks there is sufficient evidence to bring a succeful prosecusion?
Are the police or the prosecusion service allowed to continue questioning suspects once they have been charged, eg if new evidence comes to light?
When does a "suspect" become a "defendant"?
Presumably the right to remain silent was hard-won after events such as the Spanish Inquisitions when silence (or a failure to give the right answer within two seconds of hearing the question) was proof of guilt? Is there any evidence that this is in the minds of magistrates, judges or jurys today? even though it ought not to be?
Hope these questions arn't too mundane....
Cheers
Don (who knows he's always guilty of something, but never certain exactly what)
Posted on: 18 October 2006 by Deane F
quote:Originally posted by Don Atkinson:
Presumably the right to remain silent was hard-won after events such as the Spanish Inquisitions when silence (or a failure to give the right answer within two seconds of hearing the question) was proof of guilt? Is there any evidence that this is in the minds of magistrates, judges or jurys today? even though it ought not to be?
Cheers
Don (who knows he's always guilty of something, but never certain exactly what)
Hi Don
As it happens, I spent last week (beginning 9 October) out of town attending a jury trial in which I was called as a witness for the Crown. The Prosecutor kept holding up her hand to slow me down so that the stenographer could keep up. I was also advised that I could take as long as I needed before answering questions and I took advantage of this quite often - particularly when I was being cross-examined. The prosecutor's questions were very open and allowed me to give as long and detailed an answer as I wanted; and of course the defendant's lawyer during cross asked his in such a way as to narrow me down to the answer that he wanted.
Posted on: 18 October 2006 by Don Atkinson
Just remebered,
(was it) about 20 years ago that the position re the right to remain silent was changed in the UK (or England?) and was it perhaps (dracula) Howard as Home Secretay who introduced the change and the (then) new words of caution.
I seem to recall the old words, based on Dixon of Dock Green, being more straightforwad.
ISTR there was quite an issue about the change at the time, effectively trying to reduce the right to remain silent and suggest that silence implied guilt of either the alleged crime or some other crime. Perhaps the rules are different now in the UK than in NZ/Australia/Canada etc
Cheers
Don
(was it) about 20 years ago that the position re the right to remain silent was changed in the UK (or England?) and was it perhaps (dracula) Howard as Home Secretay who introduced the change and the (then) new words of caution.
I seem to recall the old words, based on Dixon of Dock Green, being more straightforwad.
ISTR there was quite an issue about the change at the time, effectively trying to reduce the right to remain silent and suggest that silence implied guilt of either the alleged crime or some other crime. Perhaps the rules are different now in the UK than in NZ/Australia/Canada etc
Cheers
Don
Posted on: 18 October 2006 by joe90
People who beat their children to death.
What rights do they deserve?
What rights do they deserve?
Posted on: 18 October 2006 by Deane F
quote:Originally posted by joe90:
People who beat their children to death.
What rights do they deserve?
People who (stand accused of) beat(ing) their children to death deserve the same rights as everyone else under the law. They deserve the presumption of innocence and the right to remain silent. They deserve the right to have their accusers prove the whole of their case.
People who (have been proven beyond reasonable doubt and convicted by a jury of their peers of) beat(ing) their children to death deserve the same rights as everyone else convicted under the law. They deserve to be deprived of their liberty but they do not deserve to be brutalised by a State whose mandate to rule is based utterly and completely on honour and upon observing the rule of law.
Posted on: 18 October 2006 by andy c
Don,
due to work and social stuff I'll answer your question tomorrow evening. I'm not in again today as am off out after work etc. I can answer what you have asked, tho.
andy c!
due to work and social stuff I'll answer your question tomorrow evening. I'm not in again today as am off out after work etc. I can answer what you have asked, tho.
andy c!
Posted on: 19 October 2006 by Don Atkinson
No rush Andy, whenever you find time to suit.
Thanks
Don
Thanks
Don
Posted on: 19 October 2006 by Rico
nicely worded and clear response, Deane. There's the bit about 'fair trial' which dovetails with your comments.
regards
regards
Posted on: 19 October 2006 by joe90
All true.
However, I think that we have a conflict between the rights of the child and the rights of adults.
In my opinion the rights of the child not to be beaten to death outweigh the rights of the adult to obstruct justice by lying so they can get away with murder.
In the two instances quoted the Police should have the right to deprive the family of their liberty until someone squeaks and spills the beans. We're not locking someone up for their religious beliefs or for the way they wear their hair. Children have been murdered!
However, I think that we have a conflict between the rights of the child and the rights of adults.
In my opinion the rights of the child not to be beaten to death outweigh the rights of the adult to obstruct justice by lying so they can get away with murder.
In the two instances quoted the Police should have the right to deprive the family of their liberty until someone squeaks and spills the beans. We're not locking someone up for their religious beliefs or for the way they wear their hair. Children have been murdered!
Posted on: 20 October 2006 by Don Atkinson
quote:Children have been murdered!
Yes.
But by whom? and what level of proof is appropriate? Is the current level of required proof appropriate or should the law be chaged. Are the current methods of investigation and obtaining that proof appropriate or should the law be changed.
Should we rewrite the law so that silence is accepted as sufficient proof of guilt. And should we be able to hang such guilty people?
Where does the balance lie between justice and human rights, bearing in mind that few things are ever crystal clear.
Cheers
Don
Posted on: 20 October 2006 by Deane F
quote:Originally posted by joe90:
All true.
However, I think that we have a conflict between the rights of the child and the rights of adults.
There is no conflict. The State is acting on behalf of the victim and has set itself a framework within which it must act. This framework has clearly defined restraints and limits of power. Do not forget the almost overwhelming resources that a Government can bring to bear upon these sorts of matters. Not even the wealthiest individuals enjoy access to that sort of infrastructure.
quote:In my opinion the rights of the child not to be beaten to death outweigh the rights of the adult to obstruct justice by lying so they can get away with murder.
Lying (successfully) to the police is difficult enough. Getting it to stand up in Court is another thing entirely. But I don't understand to whom you refer in this instance.
quote:In the two instances quoted the Police should have the right to deprive the family of their liberty until someone squeaks and spills the beans. We're not locking someone up for their religious beliefs or for the way they wear their hair. Children have been murdered!
The writ of habeus corpus protects people from being locked up without due process of law. What you are suggesting is arbitrary imprisonment at the whim of the police.
Posted on: 20 October 2006 by andy c
quote:When somebody is "helping police with their enquiries" i presume they are not under caution and anything they say cannot be used in court. But could be used to open up further lines of enquiries?
This depends on a few factors e.g. wishes of the subject being taken into account, media issues
quote:When somebody is arrested they must be cautioned and have a right to remain silent (as noted above.
Generally, yes. There are a couple of caveats to that re more serious ofences, tho (to do with urgent interviews to secure a persons safety etc, for one)
quote:Suspects can be held for questioning for 48 hours (habeous corpus?) but this can sometimes be extended by a magistrate or judge. Again the right to remain silent.
Max period in police detention b4 you need to apply to a magistrate for non-terrorist offences is 36 hours (24 hours then a supt's extension of a further 12). Max period of total detntion for non-terrorist offences is 96 hours.
quote:Who decides whether to "charge" a person with a crime? Presumably this can only be done if "someone" (who?) thinks there is sufficient evidence to bring a succeful prosecusion?
Depends on the offence, and the local CPS guidelines. Some offences req the auth of the DPP or attorney general b4 charge/prosecution e.g. riot.
quote:Are the police or the prosecusion service allowed to continue questioning suspects once they have been charged, eg if new evidence comes to light?
Depends, but this is quite tight normally, and to 'clear up any ambiguities' only,
quote:When does a "suspect" become a "defendant"?
after charge/report fo summons, practically.
quote:Presumably the right to remain silent was hard-won after events such as the Spanish Inquisitions when silence (or a failure to give the right answer within two seconds of hearing the question) was proof of guilt? Is there any evidence that this is in the minds of magistrates, judges or jurys today? even though it ought not to be?
Courts are now allowed to draw certain inferences from a persons refusal to answer questions properly put, provided certain criteria are met.
Don,
Please bear in mind my replies are very generalistic. For more in-depth replies, ask away re any specifics but referance to Stones Justices Manuals would provide more detailed info. The above is for info only, and is not a full enough explanation to do anything more than answer your question.
regards
andy