All power to Power, save one failure over silence


By Michael Laws

Justice Minister Simon Power will leave parliament in two months' time, satisfied that he has made a difference in his brief affair with power.

There are not a lot of ex-ministers and ex-MPs who can make that claim. Some of us blazed and were beaten, some just plain surrendered straight away and others had the devil's own job convincing the parliamentary security staff that we had been elected in the first place.

One thing is for sure: you are forgotten, almost immediately. The phone doesn't ring any more, the bureaucrats and lobbyists no longer force their smiles and your local newspaper refuses even to print your letters. You become an official leper – virtually unemployable.

This half-life exists until the next general election. Then you are properly forgotten and can return to normal. Well, as normal as you're allowed. Get caught drink-driving or groping some nubile not your wife, and you can be assured of front page coverage.

Some of us go into the media – broadcasting and print columns are full of ex and wannabe politicians who, curiously, receive more attention for their opinions than when they actually had a real chance to influence government policy.

But then there are the few, who blazed and made a difference and who will leave a minor legacy. Power is one of those.

Except he will also be remembered for one significant failure. An inability to rid this nation of the evil anachronism that is an individual's right to silence when they are linked to a major crime.

And really nasty crimes like child abuse and child murder. The legal familiars have done their job – sown enough doubt in the minds of gullible MPs that bad people will walk free because politicians lacked the balls to challenge the legal profession front-on.

Indeed, the legal system is a joke in this country and many other similar western countries. Instead of seeking to discover the truth that surrounds a crime, presenting and providing all the known facts and allowing all the relevant individuals to be openly questioned, the justice system sets up a court room confrontation.

This has the natural effect of parties exaggerating or diminishing the facts to suit their pre-determination. As a consequence, police and prosecutors will often overstep the mark, defence teams will deliberately play ignorant and the judge is reduced to the role of referee.

The right to silence should form no role, ever, in any transparent justice system. It has the presumption that no man nor woman should be required to incriminate themselves.

Why not? If they are suspected of the crime, why should they not answer reasonable questions posed of them by either the investigative police or the prosecution? Why should there not be an onus upon them to establish their innocence?

Worse still is that this right to silence is always the first refuge of the really guilty. Everyone knows this, including defence lawyers.

But the current law states that this cannot be held against the person either under investigation or charged with the crime. In fact, exactly the reverse should apply: it should most definitely be held against a defendant that they refused to co-operate with investigating authorities.

Power wanted to shift this archaic burden. Although the Kahui twins murder investigation – and subsequent trial of their father – is widely credited with Power's policy imperative, the truth is that this has been a burr for many justice reformers for a long time.

Indeed it was entirely revealing that the subsequent coronial investigation – that did have the ability to cross-examine Chris Kahui, and the King/Kahui whanau – revealed far more than the criminal trial.

Had the jury access to the same information and impressions, I'd be wagering that a different verdict would have been returned.

Silence is a court tactic used daily throughout the country – the police stonewalled by smartass ferals and their smarter lawyers.

Just because something has been around forever does not make it right. Power knew this. The ordinary public knows this. Cross-examining defendants should be the absolute right of the state as it seeks to discover the truth and to protect its citizens. The politicians who resist this continue to imperil us all.

Sunday Star Times, 18th September 2011

source: data archive