Derek Cheng: Can right to silence be a constant?

The most contentious aspect of the Criminal Procedure Bill is the defendant's right to remain silent in a courtroom and not have that held against him/her. Photo / Thinkstock

Justice Minister Simon Power's struggle to pass his criminal justice reforms opens the door to the possibility of the right to silence being preserved in the High Court, but not in the District Court.

Power claims to have enough support - a majority of one, at last count - to pass the Criminal Procedure Bill now before parliament. But the numbers remain shaky and negotiations are ongoing and complex - which may force Power to abandon the most controversial parts of the bill altogether.

The most contentious aspect is the defendant's right to remain silent in a courtroom and not have that held against him/her. It entitles the accused to say nothing and leave the case to the prosecution to prove beyond reasonable doubt.

The bill as it stands would change that by requiring the defence to identify issues in dispute to the prosecution before a trial. Failure to do so would enable a judge or jury to infer a greater likelihood of guilt.

Power's proposal is to remove the provision from the bill and leave it up to the powerful Rules Committee, a panel of legal experts, to decide if it should be mandatory.

He wants this responsibility delegated to the committee's criminal subcommittee, but there are two issues here: there is no statutory basis for the subcommittee, and the wording of his amendment makes no mention of the subcommittee.

Under the proposed amendment, then, Chief Justice Dame Sian Elias is one of at least three committee members who has to approve the provision for the High Court. This is highly unlikely, given that her submission on the bill objected strongly to the regime based on the right against self-incrimination.

But the District Court judges' submission supported the regime (though it was strongly against penalties for non-compliance). And Dame Sian does not technically have a veto on District Court rules.

Those rules, for serious cases or jury cases, are decided by the Chief District Court Judge and two other committee members, one of whom must be a District Court judge.
For less serious cases in the District Court, the rules are up to the Ministry of Justice and passed by by Order in Council.

The right to silence applying in the High Court but not the District Court could be justified as acknowledging the relative seriousness of different crimes, the right to silence being more important for High Court crimes such as murder.

But having inconsistent rules across the judiciary is dubious. Shouldn't the rights of the accused - who is innocent until proven guilty - apply across the board?

The broad question, then, is whether the judiciary would want inconsistent rules, and if not, what chance does the provision have.

Power might see a better option in dumping it altogether to gain broader support for a major piece of legislation, which includes changes to jury trials, name suppression, categories of crime and trials proceeding in the absence of the defendant.

Which is an avenue he is now exploring.