The Right to Silence should be Abolished

This article says it all: http://www.nzherald.co.nz/crime/news/article.cfm?c_id=30&objectid=10817417

The right to silence impedes the search for the truth of the matter and gives the defendant an unfair advantage.  Juries return not guilty verdicts on the basis of lack of evidence.  Legal aid is now used to provide five star defence campaigns which cast doubt on the prosecution case using easily obtainable expert testimony.

Comments

That a writer with no legal

That a writer with no legal qualifications and seemingly little knowledge could write such rubbish and supposedly inteligent people accept it is sad. 

The right to silence is founded on the principle that the accused does not have to testify against himself.

If the Accused is forced to testify they can lie and be guilty of perjury or tell the truth and be guilty of the crime it is alleged they committed.

So what do the prosecution have to do in this scenario? Well nothing, why worry about getting evidence the accused has to get on the stand and is going to be guilty either of the crime or perjury. 

That's brilliant  wonder why the Texans who are really hot on law and order haven't done that. Oh thats right it's unconstitutional.

Then there's the serial confessers who confess to every crime they'll be hand it the police can't find some one the serial confesser will admit to the crime and BINGO another crime solved a bloody brilliant idea.

 

Those are good points.  I'm

Those are good points.  I'm not a lawyer and nor are you yet we are both commenting on this issue.

Perjury

The way I see it someone who is guilty of the crime for which they are charged and pleads not guilty is committing perjury.So if the right to silence is abolished,as it should be, and that person takes the stand and lies,then that person is committing more perjury.
Big deal.
I don't know how an intelligent person can think that committing perjury is more important than committing a crime. Who the hell cares if  criminals perjure themselves.
The point of getting an accused person to take the stand and answer questions is to let the jury see that person and make up their own minds whether that person is telling the truth or not.
For example,in the Bain retrial,if David Bain had been asked questions about those glasses,one of those questions would have been about his aunt testifying that he had told her he had been wearing those glasses. Now he would hardly have said she was lying. He might have said she was mistaken [as per Karam]. Then it would be up to the jury to decide whether his aunt was mistaken or not. Her testimony was pretty compelling. If the jury decided she wasn't mistaken,then they would have to believe David Bain was lying.
I believe that if David Bain had known that he would have no right to silence then there would not have been a retrial.
That would have saved the country millions of dollars. And some people are worried that Bain might have committed perjury if he had been compelled to take the stand. Who the hell is worried about a multiple murderer committing perjury?

Lindsay your comment to me

Lindsay your comment to me doesn't make sense {If the Accused is forced to testify they can lie and be guilty of perjury or tell the truth and be guilty of the crime it is alleged they committed.} The truth is that anyone proven to lie when testifying can be guilty of perjury, so telling the truth is the best option. But if they tell the truth and say yes I shot the person, what is the problem, we have found the killer. They can just as easy tell the truth and say they did not kill the person, or I was at home in bed whatever, the key being telling the Truth.

The situation is that the

The situation is that the accused if he lies and say's he didn't commit the crime  he is guilty of perjury  I'll put that another way  the accused if his is innocent has to prove that beyond reasonable double, remember its is a criminal matter,  or he is assumed guilty of perjury  notice the reversal there would no longer be a presumption of innocence there would be a presumption of guilt with the associated need to prove innocence to the Criminal standard. The Accused can never prove innocence as it is a negative to guilt. it is clearly possible to prove something happened  it is near impossible to prove something did not happen.  Why? Because to be investigated and charges laid  requires there to be an action to have happened.

You say you were home in bed asleep  but can you prove it beyond a reasonable doubt  there is a reason why police have laid the charge and that might be false but it is no longer any need for police/prosecutor to prove it  apart from the fact the an alleged crime took place,  YOU have to prove it was not you as police now only need reasonable cause to charge and their function is complete. you can say you can prove it as your partner was there,  Police reply, s/he is lying to protect you.  

Can you see what I am pointing out and it might be a worst case scenario  but it is a possible one. Scott Watson has been raised as some one who could have spoken in his defence, but how can you speak out and disprove already false evidence. To disprove false evidence requires proving it is true  Police had the evidence in their posession  of Scott's innocence but they never declared it to crown or defence. and once he was found guilty so ends the innocence presumption and he must prove his innocence but with out the hidden evidence the defence was stymied  By the time Chris got the order from the Ombudsman ordering police to hand over the hidden evidence Scotts rights to appeal were extinquished.

Without the right to silence and the requirement to prove the charges to beyond a reasonable doubt the accused is behind the eight ball as police just need to supress and not discover evidence they hold and the charge is likely proven as you have nothing to counter the charge the police have it and they will deny it come hell or high water.

http://www.stuff.co.nz/timaru-herald/news/7230659/Judge-police-clearly-wrong 

Police will try to turn a sow's ear into a silk purse by lying these were caught out but tried very hard to get a verdict of guilt against an innocent man. those two are the very reason why silence is critical  because if the accused had to speak they would not have had to.   

Lindsay you say {The

Lindsay you say {The situation is that the accused if he lies and say's he didn't commit the crime he is guilty of perjury} So does that mean that all accused people are guilty??? That don't make the slightest bit of sense to me.

 

You are looking for truth

You are looking for truth which is laudable, trouble is the courts are not they are looking to show the 'facts' fit the actions  or vice versa.  Justice and truth can be mutually exclusive.  

Police v Reuben

So the police go into the house and they tazer Reuben and say he was using a child as a shield etc.
The case goes to court and Reuben says he wasn't using the child as a shield,etc.
The woman who was with him backs him up.
Reuben's lawyer knows about the tazer camera so he asks for the film to be shown.
The film is shown and that proves that proves that Reuben was not doing what the police said he was doing.
So why is there a problem with Reuben taking the stand?

I have to wonder why Reuben and the woman and the child were out swimming at 11 o'clock at night,but never mind about that.

Alibi

If you are accused of a crime you didn't commit then obviously if you have a cast iron alibi you won't be charged.
If you don't have an alibi you have a problem. But you have that problem regardless of whether you take the stand or not. Now I reckon it would be better for that person to take the stand. At least the jury will see that person is willing to front up. If that person does not take the stand the jury might wonder as to why that person was not prepared to take the stand.
I know the judge always tells the jury not to read anything into it when an accused person does not take the stand, but I for one would wonder if that person had something to hide.

Exactly Mike. I honestly

Exactly Mike. I honestly believe 9 out of 10 innocent people would take the stand and tell what they know, you loose a lot of points in my book if you refuse to answer questions regarding the case you have become involved with, its your public duty the way I see it.

 

If you are going to ignore

If you are going to ignore the Judges direction to not read anything into a defendant not giving evidence  why listen to the evidence at all just have a look at the defendant  and if he looks guilty thats enough.

In the  incident in Timaru obviously the defence counsel knew of the video but there are still many in use which don't have camera's. so if another camera without video was used  Rueben would likely have been found guilty of a crime he did not commit.

Would you Mike, in all honesty, have believed him if he had given evidence and why would you believe his partner when the prosecutor in summing up is going to tell you to treat her evidence with caution as it is likely she would "want to protect her partner". 

Would you have believed the two police officers after all what reason would they have to mislead the Court?  

Think about it slowly  The officers DID try to mislead the court by telling the Court the actions of Rueben were a lot worse than was in fact the case.

Is that acceptable from a police officer who has a sworn duty to uphold the law  and has given an oath to tell the truth on entering the witness box.  

I am saddened to see those who have taken exception the the tactics of the Bain defence team seemingly supporting the same actions when done by the prosecution. They were trying to place the blame on an innocent bystander

Ronald Cotton had an alibi

But that did not stop hin from serving 11 years of a life plus fifty years sentence for capital rape then when at a second trial he was convicted again on the same wrong evidence and also of a second rape near where the first happen the same morning. The first victim identified him twice within a week of the attack on her.  Even three years later when the real attacker was put in front of her she denied it was him and stuck with Cotton.

DNA evidence cleared him. He had an alibi which because of a memory error did not check out. He was completely innocent he gave evidence he was convicted and lost 11 years of his life mainly because a victim picked the wrong man in a photo spread and a live line up, the second victim could not identify him. 

A simple remark from a police officer altered her memory for ever, even when she knew she had picked the wrong man, if she thought of her ordeal she saw Ronald Cotton attacking her even though she knew he didn't she never ever saw the real attackers face in her memory again.

Ronald Cotton is black, the victim white. Inter racial identification is very often wrong in all directions white black, black white. hispanic white,  Asian White, White Asian.

 

Just as a matter of interest

Just as a matter of interest swimming in Corline bay at night in mid summer is not unusual it is a very safe area  and quite well lite with spill from the Container assembly area on the wharves

 

Reuben/Cotton

In Reuben's case there was a camera. It is hard to say what conclusion a jury might have come to if there wasn't a camera. But even if they had believed the police what has that got to do with the right to silence?
The jury would probably believe the police if Reuben and his partner had taken the stand. They would definitely have believed the police if Reuben and his partner hadn't taken the stand. So he would have had a slightly better chance of being believed if he had fronted up. Think about it,Lindsay.

I don't know what sort of alibi Cotton had. I doubt if it was cast iron. Regardless ,what has Cotton's case got to do with the right to silence? I have seen a number of cases on the CI channel where the wrong person has been identified.
There was one case where a negro murdered a man's wife right in front of him in broad daylight. The police picked up a negro that was walking in the vicinity and the husband identified him. A year or so later another negro was arrested for the murder. The husband of the murdered woman couldn't believe he had identified the wrong man.They didn't look that much alike.
But what has that got to do with the right to silence? The husband would have said it was the wrong person whether or not he had taken the stand.

What bay?

Would that be Caroline Bay?

Mike you say {They would

Mike you say {They would definitely have believed the police if Reuben and his partner hadn't taken the stand. So he would have had a slightly better chance of being believed if he had fronted up. Think about it,Lindsay.} You have hit the nail on the head, the best course of action for Reuben would have been to stand up in court and quietly and truthfully answer questions, of course this does become very difficult to do if you have a guilty conscience, in which case not taking the stand may be more self serving and appropriate.

Reply to comment

Bill,the way I see it is that every accused person should take the stand. Now on some rare occassions an innocent person may get convicted, but that would have happened regardless of whether that person took the stand or not.
Bain took the stand at his trial. I daresay he handled himself pretty well. But he was convicted,regardless.
Had he had to stand at his retrial I firmly believe he would have been found guilty.

I have just read about the

I have just read about the other three crimes committed by Ewen Macdonald (he has confessed to all six).

The nature of the crimes (cruelty to animals, wanton destruction of farmed deer, milk and arson) suggests that his man is a sociopathic individual.  I cannot understand why the judge in his murder trial ruled this evidence inadmissable.  Surely the jury should have had access to this information.  It paints a very black picture of his personality and these new revelations are seriously disturbing.  I know the legal experts will argue that this evidence might have influenced the jury. The jury should have been made aware of his previous behaviour.  The jury was told about the first three charges - why not the final three?

I have little confidence in our quaint system of Justice

 

Suppressed evidence

I believe that there will be many people who are wondering just why that evidence was suppressed.
I believe that had the jury heard about those crimes they may well have come to a different verdict.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10824036

Mike - I still think the jury

Mike - I still think the jury was correct in acquitting him.  The prosecution did not provide the evidence to find him guilty beyond reasonable doubt.  The hard evidence simply was not there. I do think however that all of the background evidence should have been placed before the jury. It could well have influenced the decision had the main evidence been more convincing.

It is interesting to read some of the United States profiling studies on sociopathic offenders who have been found guilty of murder.  They initially start with mild antisocial behaviour (eg lies, manipulation, petty criminal activity) and gradually progress to major criminal activity, arson, cruelty to animals and finally murder.  They are invariably charming and present a very socially acceptable facade.

Maybe,maybe not.

There may not have been enough hard evidence to convict Macdonald,but juries have been known to convict on less.
The way I see it,Macdonald tried to lay a false trial by suggesting that a burglar may have committed the crime.
So the jury would have to believe that a shotgun wielding burglar wearing size 11 dive boots stole those puppies at the same time that Scott Guy left the house.

Max Sica

http://www.brisbanetimes.com.au/queensland/max-sica-a-confident-killer-20120703-21fl9.html
 
At the same time as a Wellington jury found Ewan Macdonald not guilty a Brisbane jury found Max Sica guilty,based on only circumstantial evidence.

Sica and circumstantial evidence

Mike, when I was last living in Australia, a truck driver was found guilty of the Falconio murder almost entirely on circumstantial evidence.  I do not understand where the public perception in this country that circumstantial evidence is unsafe came from but if it was not for circumstantial evidence our criminal justice system would collapse. I suspect it came from stupid misinformed book writers such as Joe Karam.  The truth is that direct evidence such as eye witness identification has proven problematic worldwide with mistaken identity a frequent problem - refer David Dougherty.  The many strands of circumstantial evidence each pointing in the same direction and confirming the other in fact create a stronger case.

Almost all the whole forensic

Almost all the whole forensic disciplines have been found wanting specially in the last 15-20 years, as researchers have investigated the so called science the disciplines depend on. Close to 300 have been exonerated in the US alone, all either on death row or serving whole of life sentences. Forensics have been a major factor in about half.  Only serology has come out  with any credit all other branches and practitioners have been to rely on subjectiviety, guess work,  not objectivitey. As demonstrated in R v Bain and  Rv MacDonald the forensics fell well short of convincing and there in lays  the problem. Forensics is not science it is opinion and guesswork Give three Fingerprint experts the same prints to match and they will disagree on points of similarity and likely reach different conclusions.

Strong circumstantial evidence, it now seems, has to play a much stronger part in bringing the Guilty to justice. The US DoJ report done by the NAC has lifted the lid on shonky practises Crime labs unable to do tests through lack of resources  practitioners taking shortcuts to deliver prosecuters the answers they want to secure the convictions promised in elections. New Zealand is no better, the ESR is underfunded  and is working with equipment long out of date. Public pressure to "lock 'em up" means police and Prosecutors are taking shortcuts to cobble together convictions on flimsy forensics and poor  witness treatment Professor Gary Wells called the memory the forgotten 'crime scene' and the one most likely to be contaminated by inept interview methods. Strong circumstantial evidence  strongly put and complete, will trump poor forensics and weak withnesses. Greg King revealed the weakness in the expert and Forensic evidence and left the Jury having to battle with circumstantial evidence that was strong and pointed to the accused and the public waryness of circumstantial evidence done the rest.  While there is a reluctance to convict on circumstantial evidence others will walk as well in the future.                    

Greg King's Summation

Greg King's main argument obviously impressed the jury yet it was actually an easily rebttable argument.  Unfortunately, prosecutors who have already summarrised get no chance at rebuttal, and it would be biased for a judge to do so.  Essentially King was saying "It would have to to be the perfect crime flawlessly executed for my client to have done it". Since crimes are never flawlessly executed, it was a nonsense to argue that McDonald would not have corrected people about Guy being shot.  Clearly it is possible that he may have if he made the mistake of not anticipating how that would/could later implicate him.  Often, the fact that the Defense is the last the jury hears from apart from the Judge may make that summation clearer in the juries head.  Additionally King's performance was extremely theatrical compared to Ben van Der Kolk.

There is no doubt in my mind

 

There is no doubt in my mind that something is terribly wrong with our court system the fact that at least 3 killers have escaped justice in the last 4 years is testimony to that. The pendulum of justice has swung to far in favour of the accused, juries need to see ""ALL THE EVIDENCE"" they need to see evidence of what the character of the accused is, if he has committed crimes such as extreme vandalism, extreme acts of revenge, animal cruelty etc, or if two very credible witnesses come forward with testimony of a planned sexual assault using the same alibi as the current crime then the jury need to hear about this evidence. What we are faced with now is a smiling goon in a brand new suit looking like a choir boy, and its working a treat with the ill informed jury members who don’t seem to be able to figure out what “reasonable doubt” is anymore. The evidence against David Bain for 5 counts of murder was enormous, especially when you look at the complete and utter lack of evidence connecting Robin Bain with any of the 4 murders. Any police force around the world would have been 99% sure of a conviction with the mountain of good evidence against David Bain, but what happened here in good old NZ, just another killer off the hook.

 

I think that there is

I think that there is considerable abuse of the "beyond reasonable doubt" provision. The defence goal becomes to sow as much confusion in the jury as possible and thereby create as much "doubt" as possible.  This is what Karam did in the Bain case.  After that the verdict is easy.  Here is another case where this is going to be exploited: http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=10828063

I agree

Kent I totally agree.  The creation of doubt in a jury's mind is a perverse game.  What a good example your link gives us, although at this stage it does not seem the jury bought the idea of doubt.  I was not surprised that his appeal is founded not on new evidence but on "technical arguments".  That summarised the entire process of sowing doubt.

Law Society's Jonathan Krebs interview with Michael Laws

I recommend listening to this. Michael Laws got Krebs on as a guest but terminated the interview early.  I think this interview demonstrates what is wrong with our legal fraternity - its arrogance and its resistance to change and reform.

http://www.radiolive.co.nz/Defending-the-right-to-silence/tabid/506/articleID/29576/Default.aspx

Do we want the changes Laws

Do we want the changes Laws advocates.  "the degree of a nation’s civilization can be seen in the way it treats its prisoners".  by Fyodor Dostoyevsky.

Do we go backs to the dark ages  and remove what rights an accused has, or do we change the system to become a search  for real truth and justice not as it is at present a game to see who can stack the most  'facts' relevant or not and confuse a jury the most .

Going back to the Dark Ages

Linz, I cannot see that the alternative legal systems opperating for example in Europe are a "return to the dark ages" or "the removal of the rights an accused has".  But in all these issues we have of course competing rights.  What of the rights of a victim (Including Guy's wife, child and family)?  What of the rights of the state to correct crime?  I fear our legal system gets this out of balance.  The right to silence isn't ancient at all.  The jury trial is a residual feature of the Anglo Saxon (English) justice system prior to 1066.  The original juries were fellow villagers of the accused convened very shortly after the commission of the crime.  We inherited common law and the jury trial for no more reason than that we emerged out of that Anglo saxon culture and we cling to it for no better reason.  It is an expensive clumbsy and haphazard system of determining truth which is noteven interested in truth.  As for perjury, one has to underrstand that oath taking began in a time when it was actually believed that taking an oath had celestial and eternal consequences.  This is dramatically demonstrated in the Bayeaux Tapestry by a scene of Prince Harold aparently swearing fealty to Duke William of Normandy and support for his acession to Edward the Confessor's throne.  The word "sacrementum" denotes that this was a holy oath enforceable by God and so justifying the invasion.  People mainly do not believe such things these days.  Perjury is considered necessary to achieve the desired end.  I have seen perjury in action in many cases.

Technically you're correct

Technically you're correct the right to silence is not "ancient"  a bit over 150 yeas ago the acussed was forbidden to speak in his/her own defence.  The Jury system dating back to 1066 is not really all that modern. 

You talk about balance, that has long gone for certain offences the presuption is guilt,  as the is no requirement for corrobative evidence. That is a massive erosion of the defendants right to a fair trial. The next step of removing the right to silence simply means the defendant perhaps some one like Aaron Farmer far from being mentally incompetent would struggle to cope with a prosecuter happy to lie and falsify evidence.  

You say you see perjury  yet you do nothing and you criticise the Law Society as arrogant.  I believe it is arrogant to ignore the oath as an officer of the court  so some one can get what they "want"

I spent 5 hours speaking with a very able and experienced Barrister in his late 60s some time ago who had been joined the UK Department of Public Prosecutions and in 20 years rose to become a director of public prosecutions. He has practised in South Africa  Australia and Canada being licenced to practise in all three. He is now at the end of his career and limiting himself  mediations now. His opinions of many lawyers here is not high. One reason is that  they don't  respect the Court and their role in it. If the officers do not respect the Court why should those who use it

Whether people have belief in a "higher power" is a cop out as there is right to affirm rather than take the Oath. I very rarely take the Oath on the Bible as to me I must obey it's warning to not swear on the Scriptures or anything in Heaven or on Earth I believe my yes to be yes and my no to be no. 

You lament the lack of rights of the victim but rights are a finite resource and increasing the rights of one party involves removeing a right of the other. Allowing the State/Crown investigate and prosecute involved victims releasing their right to retribution and vengence to the Crown and in turn the victim was releaved of the burden of proof and all would treated equally before the law whether extrememly wealthy or in extreme poverty.  For the acussed it meant the charge put to them did not vary based on the wealth or ability of the 'victim'

Common Law rights are often codified [the interviewing of  sexual abuse victims and Children is an example]  I'm sure Peter Ellis is not a fan of the results of codification  AA Thomas is likely not a fan of evidence planting by police.

The use of deliberate perjury to secure convictions lowers the System to below third world standards and Officers of the court who do not speak out defeat and pervert the course of Justice. Hell the system is in deep trouble now without lawyers condoning illegalities     

 

I have trouble ubderstanding

Sorry Linz, I have difficulty understanding some of your reasoning and logic.  I do not think that when you increase the rights of one side you necessarily decrease the rights of the other.  And I think it doesn't matter whether you take the oath or the affirmation for many persons it is of no more value to them than crossing their fingers behind their back.  I, as an atheist was not advocating belief in a higher power, I was merely outlining the significance it had in a more superstitious age and showing that nowadays people feel as free to lie under oath as they do to lie anyway.  The offences that we are familiar with in the celebrated trials are "mens rhea offences".  However there are other clasifications of offences including offences that legislation decrees are "strict liability" and those where the presumption of guilt is reversed.  For instance if you are found with certain quantities of narcotics the law says that you had them "for supply" and that is a presumption that you must positively disprove.  I was charged under s56 of the Law Practitioners Act.  That section says that if the President of the Law Society issues a certificate stating that at the time I was holding myself out as a solicitor then that is "evidence" that I was and it is up to me to possitively disprove that presumption.  These are examples where the onus of proof is reversed,  I simply can't see however a "massive erosion of the defendant's right to a fair trial". 

If I am compeled to give

If I am compeled to give evidence whether I want to or not then I have lost a right, the right not to incriminate myself.  The crown has gained the right to force me to incriminate myself.  If you see that as me still have the right to silence  and the crown  the right to force me to incriminate myself as one right becoming two  The I suggest a quick study of social economics.

Anyone who sees the acussed as ''having the upper hand'' in the system is in  cloud cuckoo land. To investigate Police have unlimited resourses  to prosecute. The crown has unlimited hours at rates almost double that paid to Legal Aid lawyers  My Counsels Agent in Auckland was paid  $165 per hour the maximum he could get was $185 per hour  Prosecutors depending on grading  start at $220 per hour  Senior QC in excess of $300 per hour for as many hours as he wants or needs.  

Criminal Legal Aid Lawyersa get paid a maximum of five hours Preparation cannot get investigative funding or forensic funding. Civil Legal Aid get a maximum three hours preparation.  

The victim has a vastely better resoursed case  and it is not an excuse to blame the defence if the crown cannot prove their case to the required standard. Greg King done his job and that is to test the strength of the crown case. He showed it it was not up to the standard. He does his sworn duty as an officer of the court  and that is wrong???  I take it from that the consensus is that the beyond reasonable doubt threshold is too high and should be lowered so more are found guilty [even if they're not].

Based entirely on your opinions expressed here Scott Watson is guilty as it is acceptable to commit perjury  both in court and in affidavits It is acceptable to mislead the jury by telling them that the speed of Scott's sloop was irrelevant. Not one witnesses identified Scott as the man  but a few identified the half closed apprearance of his eyes as being like the unidentified man. The forensic evidence was farcial.  But using your logic because he did not take the stand then he is guilty.

In life, in Physics and in Maths one thing is constant and that is that it is imposible to prove a negative, Therefore it is impossible for an innocent accused to prove his innocence as that requires proving a negative. The Crown on behalf of the victim has the duty of proving beyond a reasonable doubt the acussed's guilt, that is proving a positive that is something happened and the accused was the one who did it.

As I understand it giving legal advise while not holding a practising licence is "holding out"  I faced the same holding out possibility if I performed certain electrical work without holing a current practising licence. It was a serious offence carrying a fine of up  to $15,000 for me and $100,000 for my company The onus of proof was on me as if I held a licence I could produce it. The EWRB knew before they started if I held a licence as they issued them each year. If I was caught it was my own fault.  

You as an atheist will know you cannot prove God does not exist [proving a negative] I on the other hand do not need to prove he does.

As for perjury well maybe it is about time those who commit perjury face the consequences it would quickly return the value to the oath or affirmation. Certain assumptions in law like possession for supply are proveable  as the limit exists as does the narcotics. 

So if we take away my current

So if we take away my current right to silence then The crown has gained the right to force me to incriminate myself. ??//,.;;;;;??

Linz I tend to disagree with

Linz I tend to disagree with your whole argument about the defendant incriminating himself.  That may have been true 150 years ago, but now the pendulum has swung considerably in the opposite direction to defendants getting gold-lined treatment.  I think that the ground is being laid for the defendant to lose their right to silence.  We now have considerable amounts of background / evidence about the accused being inadmissable, and juries are being trained to take hold of the reasonable doubt provision firmly if a case is not made.  Provided that the questions to the defendant are well-regulated then that would diminish opportunity for a clever prosecutor to make him/her appear flustered and guilty.

Right to silence

As far as I am concerned,every defendant should be required to answer questions.
I noticed that Judith Collins ,when asked about the right to silence a couple of weeks ago,said the defendant could lie. Does she think that most of us don't already know that?
I believe the David Bain trial/retrial is a good example. Bain took the stand at his trial. It would appear the jury did not believe everything he said. If they had they probably would have acquitted him.
At the retrial he did not take the stand. I honestly believe that had he been required to take the stand and been cross-examined he would have been found guilty.
In fact I would go so far as saying that if Bain knew he would have to take the stand there may have been no retrial in the first place. Karam might not have even taken the case to the Privy Council.
I know I have harped on those glasses that were found in his room. In 1999 his aunt came forward and recounted a conversation she and David had on the Tuesday morning after the murders. During that conversation David said,in reply to a question,that he had been wearing a pair of his mother's glasses while his were in being repaired.
Now imagine if he had been required to take the stand.
Q. Had you been wearing those glasses that were found in your room ?
A. No.
Q. Your aunt will be testifying that you told her on the Tuesday morning after the killings that you had been wearing those glasses. What have you to say to that?
A. I don't recall saying that.

It would be up to the jury to decide if Bain was lying or not. I don't believe any jury would have believed him.
And of course there would have been a number of other questions that would have been put to him.
So it ended up costing the taxpayer millions of dollars just so David Bain could sit in court for over 50 days and not be called upon to answer a single question.

the guilty do lie

Of course the guilty lie.  Generally the innocent don't.  Guilty persons lie to police and the police are able to observe their body language.  That person is then charged and at trial are not required to give evidence and be questioned in front of the jury.  So the jury does not get to see their body language. 

You say generally the

You say generally the innocent don't lie and the generally the guilty do and as generalisations that is generally true. Aaron Farmer did not lie to police but they charged him anyway because they didn't believe him as his body langage wrong he was convicted. The three  convicted of arson of a Waiarapa hotel told the truth but they were charged and convicted. The three young PI girls did not lie to Trevor Franklin but they were charged and convicted. AA thomas told the truth and was convicted Peter Ellis told the truth. There's a common thread to all three Police decided they were liars  and told juries they lied. Juries believe witnesses even when they are lying. Juries disbelieve defendants even when when they tell the truth. The police should be able to build a case strong enough that it does not have to rely on the defendant doing their job for them.  The barrister I spoke of in his time as a prosecuter refused to pass investigations which would not stand with out defendant testimony. After about  three reviews the case was passed back to police noted not for prosecution insufficent evidence. Is it possible to generalise that being truthful to police is no guaranttee you won't  be charged?

The difference would appear to be the initial belief of a police officer they have their suspect so they set out to prove it. Pope done that based on a suspect profile of Scott Watson completed by a probationary constable with less than 3 months service The first sentence is correct the rest is based on talking to a couple of locals, guesswork and prejudice. Pope told his team on Jan 6 Scott was their man as he stuck out like ''Dogs Balls".  Scott returned to Picton on Jan 7 and when to the police to tell them he a Furneaux. Scott went back for another interview on Jan 8  where some photos were taken. What Scott was not told was that the seizure warrant for his Sloop had already been filed in Wellington High Court and granted. I realise it was ex part. Scott was called back on Jan 12 and was interviewed for almost 5 hours another 200 photos were taken and it was made clear to him he was a suspect and Fitzgerald  took great pleasure in showing Scott His vessel being paraded through Picton CBD instead of the shorter bypass. The vessel was not covered as required in police best practise. Pope in his affidavit stated he had good reason to suspect... and the police expected to find Matter and material of interest on the vessel. The Affidavit was not accompanied the evidence for the good reason to believe, yet the police solictor in Christchuch passed it as satisfactory.  In six weeks searching using every methodas their and ESR disposal the only blood found was Scott's and fish blood. At the beginning of March 1998 the only evidence police had was a hatch cover with scratch marks that the officer that found it at the final check, was too stupid to see the hatch had to be open the make the scratchs. Three monthes had elapsed  $1 million spent and the only evidence police had completely excluded Scott. That was the beginning of the creation of evidence of against Scott. They finished a week before Scott went to trial. In an investigation that spanned 18 months police had to resort to using a known jailhouse informer who had to be kept in segergation for his safety and another with severe mental health issues. 

Like some lawyers police protect their own and don't report illegal behaviour. The IPCA is a toothless newborn kitten  ie as much use as teats on a bull. To state in a report of an investigation that it could not make findings on the Identification process as no one had documented them and almost as an after thought the identifaction was far below police best prictise of the time to the point it may have jeadodised the conviction.  THE IPCA was also critical of the Affidavits as being inadequate and lacking evidence and was further criticised after the internal police investigation did not seek an independant solicitor opinion on the Affidavits. Inspector Pinkham of Dunedin had a bad couple of weeks being criticised by the IPCA for two internal investigations that were of a poor standard 

Linz I think you really have

Linz I think you really have to stop bringing up the Watson case every time you make a post its becoming very tiresum. I know you are passionate about that case but it really has nothing to do with the Bain case. And personally from what I have seen Watson is guilty, there is forensic evidence against him, he did not testify as an innocent person usually does, and the whole case of him being innocent revolves around a mystery man who nobody knows and nobody saw him intimidating anyone as Watson was, then that mystery man got on his mystery phantom yacht and sailed away never to be seen again, sorry I just don't buy it. But you are entitled to your view but this is about the Bain case, sure its OK to bring up other cases but surely not every time you post.

You really are ignorant

You really are ignorant aren't you.  Scott Watson is alive, innocent and still in prison  I suggest you visit you local library and do some reading  Even the Policemans friend the IPCA say the CASE against Scott has been seriously undermined by the method of identification.  The police Affidavits were defective. and the forensic evidence shows the is at least 1000 people in NZ that would have the same DNA as was found on the hairs from Olivias hairbrush.

A stupid statement like he must be guilty because he did not give evidence is appalling.  Was AA Thomas found not guilty when he gave evidence  TWICE.  That is pathetic 

My interest in R v Bain is purely the pigswill spewed up against Robin having a major depressive and killing others  I have searched back 30 years and found one French Psychiatrist who reported two unsubstantiated depressive murders in 1990. I have a life time of experience of depression. 

As far as bain being found not guilty I could not care less.

It is people like you that lead me to resign from the JFRB group which I cared about passionately    

With that I cancal my membership so I can do something useful

By By Linz, pity you didn't

By By Linz, pity you didn't read what other people wrote, the fact that you stated "As far as Bain being found not guilty I could not care less" kind of says it all, I mean to say if you don't find the fact that a person with a mountain load of evidence against him has escaped justice cost the taxpayers a bloody fortune and blackened the name of his innocent father as a tragedy then I don't think you belong here, try putting yourself in the shoes of the Bain and Cullen family who have mourned their murdered family members and know full well that Robin had nothing to do with it, its a travesty of justice and everyone should care because it could happen to anyone of us.

 

Scott Watson Case

I think he was convivted on flimsy evidence to be honest. Even though looked like it pointed to him. Why wasn't Guy Wallace looked at more closely? He could have made up all his statements to put the heat off him and point the police on the chase to a mystery ketch? On to the Bain case... i am still mad that i am probably going to have to pay a compensation to someone who i think is guilty. This whole case was stuffed up by the police from the beginning. this new evidence of marks on Robin Bains thumb and forefinger looks compelling to be sure but could it also be another thing David did to implicate his father? By running the magazine across his finger or maybe they did have a conversation and dad reloaded the magazine for his son not knowing that his family lay dead in the next room and he was to be the next victim?

 

Police stuffed up?????

Sunny dragon you have been blinded by Karam"s rhetoric. The Police did not "stuff up". The Police got it right.

Sunnydragon.     There is

Sunnydragon.     There is nothing compelling about the thumb mark evidence. It is obviously nonsense and I am surprised Karam and Co had the gall to present it as legitimate evidence.

I think the police did a very good job considering the difficulties they experienced in collecting the evidence. We must remember Dunedin is a small city in a small country and it would have been an extraordinary case for the local police team. Every murder investigation in history will show deficiencies in retrospect. Karam has made it his business to discredit all key items of evidence. You could argue that that is the duty of the defence but it should not extend to deliberate distortion and deception.

I agree with your comments on the Watson case. It is clear that the police reconstruction is incorrect. I think Watson was probably involved in the murders but the prosecution case is wrong.  I know this because a family member was a key witness and the police discounted her crucial evidence completely as it contradicted their version of events.

Reply to comment.

Charles,
Re Bain murder enquiry.
I also believe the police did a  good job under the circumstances. Of course using hindsight it is easy to say there were some things that should have been done that weren't done.
And even the police agree that Robin Bain's hands should have been bagged so they could have been tested later for GSR.
But even if his hands [or at least one of his hands] had tested positive for GSR this would not necessarily have proved anything. His body appeared to have been moved before the police arrived . If David Bain had GSR on his hands he could have transferred that GSR on to his father's hands if or when  he moved his father's body.
And David Bain's hands should have been bagged as well. But we know David Bain washed his hands at least twice so that may have removed any GSR that was on them.
Re Scott Watson.
I also believe that that the police reconstruction is incorrect. I am uncertain as to whether Watson is guilty or not.
And it would appear that at least some of the police reconstruction as to how Robin Bain died is also incorrect.
The police said that he was kneeling on his beanbag when he was shot, but at the retrial an ESR scientist said he was most likely to have been  in an upright position.

That is true that having an

That is true that having an unusual case such as this that they would not have encountered before to this degree. By my comment of them stuffing up. I meant that maybe some evidence could have been collected earlier such as gunshot residue on David and Robin. It would have confirmed who the shooter was. Yes this is in retrospect of course......

I would not expect you to

I would not expect you to agree with me about  the right to silence but I do notice you hace been selective in your quote of Juthith Collins as she also said there is no real [push] to remove the right to silence  and it was not being looked at, which coming from her I found very surprising. 

As for Bain I don't have a problem with the verdict as the Crown Case had been weakened by death and time and he has to live with his conscience I object the to portrayal of those who suffer major depressive episodes as killers of any one but themselves is quite simply untrue.

 

Not selective and why surprising?

First of all,Linz,I was not being selective when I mentioned what Judith Collins said, it is just that I remembered that bit. When I read it I thought "does she think we are idiots?". So you got that wrong.
Second,why did you find it surprising when she said there was no real push to remove the right to silence and that it wasn't being looked at ? I didn't find that statement surprising at all.
Re Scott Watson. Well ,the way I see it, the Police were under pressure to find the culprit and Scott Watson appeared to be the most likely so they arrested him. Nothing unusual about that. And it didn't help him when two witnesses identified him as the man at the bar. Now they are saying it wasn't him,it was somebody else. Well maybe it was. But if that mystery man was a crewman on a ketch I find it surprising that no other member of that crew was seen talking to that mystery man that evening. They would have almost certainly been at that party.
Last night I saw for the second time a program about the murder of Jill Dando, a BBC newsreader. A local was arrested and convicted,but there wasn't a great deal of evidence against him. He appealed his conviction and was acquited at his retrial. This was another case of the police being under pressure to arrest someone and he was their main suspect.
The police never found the murder weapon,and nobody saw the shooting.
There is a suggestion she was killed by a Serbian hitman.
http://www.dailymail.co.uk/news/article-2109602/Jill-Dando-murdered-Serbian-hitman.html

My reply to yours Linz

Linz you are completely misunderstanding me and I cannot see why.  I do not think perjury is OK.  Quite the opposite.  I was merely explaining why it doesn't matter for the practitioners of perjury to do so.  As for people who are compelled to give evidence incriminating themselves that surely presumes that there is something incriminating waiting to emege under questioning.  Re Scott Watson. I do not support his conviction or even understand why Pope pursued him as no1 suspect and I cannot understand how/why you construe the views I have expressed here are not consistent with that view. And how have you taken anything I have said to indicate that I think that a person who doesn't give evidence is clearly guilty?  Respectfully, I think you need to read more carefully and not put ideas and words into peoples' minds and mouths.  I have complained of perjury to the police.  The problem is that often you know it has occurred but proving it in court is another thing.  Incidentally and ironically, the last person I complained about, refuses to come into the police to be questioned and cannot be compelled to do so.  She is exercising her right to silence.  Oddly enough there are agencies of the State to whom you are curretly compelled to answer questions - the IRD is the obvious.  Linz also you seem to grab on little asides in comments and treat them as subjects.  Eg the God thing.  This isn't the subject we are discussing.

Your first sentence confuses

Your first sentence confuses me,  you had ealier said perjury happens often, a comment that to me seemed to see perjury as a normal thing. Perjury is a deliberate act to decieve the Court while misinforation is a mistaken belief that something is true. Judge Beattie used the criminal intent [mens rhea] defence to escape conviction for his claiming allowance to which he was not entitled The other Judge who had been shown the procedure by Judge Beattie did the honerable thing and resigned.

 

I have not had the advantage of years of university teaching on how to write a letter that in the end tells nothing that was not known at the beginning

 

I think you are confused

If I was to say theft was frequent would that mean I was supporting theft?  How then do you construe that I am supportting or justifying perjury because I say it happens often?  Really Linz I think you are being tedious.