Editorial: Our right to silence must be retained

Ewen Macdonald in court. Photo / Mark Mitchell

The criminal justice system took a long time to admit television to courtrooms. The system must be gratified at the result. When a trial as compelling as the Feilding murder case engages the country as it did, viewers are forced to grapple with their assumptions and sympathies and subject them to forensic procedure. It is a difficult but instructive experience for viewers and a valuable test for the system.

The result of a real trial is seldom as satisfying as fictional courtroom drama. The accused does not "crack" under the pressure of a prosecutor's scything questions. In reality, more often than not, the accused is not questioned at all.

The right to silence is one of the hardest civil liberties to accept. It has no role in the justice we practise in ordinary life. When a child or an employee is suspected of an offence the parent or boss typically asks, "What do you have to say?" If the response is silence, it is as good as an admission of guilt.

But a defendant in a criminal trial is not obliged to say anything and in that event the jury has to be instructed by the judge that nothing may be read into the decision. The jury that acquitted Ewen Macdonald last week of the Feilding murder must have followed that instruction faithfully.

Like the jury, the country was unable to assess Macdonald in the way that it was possible to assess the character of Clayton Weatherston three years ago in another murder trial that dominated the daily news. Weatherston did himself no good with a display of such appalling self-absorption that he put the word narcissism into the national conversation.

But it is doubtful that his performance did much good for the justice system, either. His case prompted public criticism of the defence of provocation and despite the absurdity of the claim in his case, and the jury's rejection of it, Parliament changed the law later that year. A murder trial in different circumstances might one day show the change was a mistake.

Macdonald's case has not so far brought similar pressure to abolish the right to silence. Nor should it. While he did not take the stand, he had not invoked his right to silence when police had questioned him and the jurors had the benefit of watching his responses on film.

They saw his denials of lesser crimes, which he eventually had to admit, and they saw his body language when he denied the murder. But in court he was protected from possible self-incrimination under cross- examination, when questions can be put in a way that require answers of yes or no, with no opportunity for elaboration or explanation.

If our courts were inquisitorial, as parents or employers are when they want to know the truth, the courts, too, could dispense with the right to silence. But when a crime is committed the police inquiry is the quest for truth and the court's role is to put their conclusion to a fair test.

In the course of the long trial that ended last week, many will have shared the experience of having their initial impressions challenged in ways they did not welcome. Human nature leaps to conclusions and clings dearly to them in the face of reasonable doubt.

"Reasonable" is the operative word. No case should fail because one or two jurors can imagine other possibilities. Their doubts must be reasoned on the facts available. There was plenty of reasonable doubt in general conversation last week.

The penalties for crime are too serious for the suspect to be obliged to give evidence at any stage in the inquiry, let alone when it comes to court. That is the way our justice works and it appears to be standing up well under the glare of cameras. Many among the public are expressing admiration for the fairness they see.