End the right to silence says QC

Kevin Ryan and wife Jan arrive at Auckland District Court for his farewell yesterday. Picture / Kenny Rodger

Queen's Counsel Kevin Ryan has shocked lawyers on the day of his retirement by saying he thinks the right to silence is outdated and should be abolished.

Referring specifically to the killing of the Kahui twins, the 75-year-old courtroom veteran said: "In my view, we are assisting evil by just sitting there and not answering questions."

And he said juries should be allowed to know a defendant's criminal history.

Mr Ryan - who has appeared in more than 100 homicide trials and acted for the pardoned Arthur Allan Thomas, Mr Asia drugs boss Terry Clark and serial rapist Joseph Thompson - retired yesterday after nearly 50 years as a barrister.

He made his comments on Radio NZ's Nine to Noon show when asked if there were any areas of the law that needed reforming.

"I did not subscribe to the divine right of silence. Those rules were promulgated years ago in Great Britain when the public were uneducated, most of them illiterate."

He said the right to silence - under which a suspect can refuse to talk to police - was introduced to protect such people, but times had changed and the law needed to change with it.

Mr Ryan said the Serious Fraud Office had the right to make people answer questions, but the police couldn't do the same thing in serious cases involving human life.

He said that jury members' knowing about an accused person's criminal history would give them a clearer picture of the case.

It was wrong that the defence was allowed to challenge a witness' credibility and imply police had made mistakes, but the Crown was not allowed to reveal an accused person's convictions.

Auckland District Law Society president Gary Gotlieb said he was surprised by Mr Ryan's views, which differed from those of most lawyers.

"He's a lovely man and I don't think he intended to leave on a controversial note, but he certainly has.

"I don't think even many Crown prosecutors would go that far, but everyone's entitled to their view."

Mr Gotlieb said there were still uneducated and disempowered people who needed safeguards such as the right to silence.

"One only has to be at the coalface to see the abhorrent need to uphold those safeguards, because in the end the might of the state is so much more than the individual."

Lawyer Lorraine Smith, who represents Chris Kahui, father of the Kahui twins, said she was surprised and a little disappointed by Mr Ryan's comments.

"I remember Kevin giving an address to the criminal bar about how important the right to silence was and giving three or four examples, so I'm not quite sure about this new shift."

Ms Smith said Mr Kahui had made three statements to the police - "three long videos - so he has not exercised his right to silence".

Law Commission deputy president Dr Warren Young said some people talked about abolishing the right to silence but meant they would like New Zealand to have a system more like that used in Britain.

There, people have the right, but if they exercise it that can be brought up in court later on, implying they had something to hide. In New Zealand, a prosecution lawyer cannot make that implication.

Council of Civil Liberties president Tony Ellis said the right to silence had been under attack in England for years, but Mr Ryan might have been better keeping quiet.

"Just because Kevin Ryan's decided to retire - and he might have got a bit more conservative in his old age - isn't a reason for us to abolish something as fundamental as the right to silence."