Tuesday, June 27, 2006



Dangerous frustration

I haven't commented on the Kahui case because, bluntly, I loathe the entire genre of crime d'jour reporting, and don't want to encourage it. But I do have to comment on the statements politicians have been making over the Kahui family's silence and refusal to speak with police. According to the Herald, Maori party co-leader Pita Sharples said that the police should bring people in for questioning, while NZ First's Ron Mark has issued a press statement calling for them to be arrested for obstruction of justice. These calls are dangerous and authoritarian, and, if acted upon, would grossly violate one of the fundamentals of the New Zealand justice system.

I'm not going to be popular for saying this, but I think people need to be reminded: in this country, you do not have to talk to the police. There is a right to silence, both legal and practical, and a right against self-incrimination. The police cannot arrest you simply for refusing to talk to them, and it is not a crime to do so. And if you are arrested, you still do not have to talk to them, just as you do not have to give evidence at trial if charged. These rights are fundamental to the New Zealand justice system (and to those across the civilised world), and they exist for very good reasons - chief among which are protecting people from abuses of power and stopping the police from compelling testimony and forcing "confessions".

It is frustrating when people do not come forward with evidence about a crime, and politicians naturally want to be seen to be "doing something" about such a high profile case. But the best thing they can do is shut the fuck up and let the police get on with their work. We should not ignore one of the fundamental safeguards of our justice system simply to relieve politician's and the public's moral panic.

21 comments:

Hear hear ... these principles do (and should) apply no matter how odious the suspects.

If, for sake of argument, the 11 adults were arrested, and refused to talk "down the station" what would the next press release from Ron or Pita say?

Some of the reporting has been reasonably insightful, but with a lack of any further actual "news" on the case, the media is reverting to "two of the people in the house are known to be on welfare, and some or all of the others might be too, despite the fact they are last known to be students or state occupations on the electoral roll." See: http://www.nzherald.co.nz/section/story.cfm?c_id=1&objectid=10388510

Posted by dc_red : 6/27/2006 03:53:00 PM

"in this country, you do not have to talk to the police"

Unfortunately, I'm not sure that this is correct - people who obstruct the police by refusing to assist them can be charged with obstruction of justice.

The right to silence is not as broad as you seem to understand it - people can be summonsed to give evidence in court and can face criminal or civil charges if they refuse or fail to attend.

The right against self-incrimination will protect those who committed these acts, or are otherwise criminally culpable - it does not protect those who know about offending and refuse to help police. You've perhaps heard the warning occasionally given by judges to witnesses who may implicate themselves - it's to the effect that they have to answer the questions asked of them in court honestly, but can refuse to answer questions where that answer would open them to criminal liabilty.

Witnesses to crime in New Zealand DO NOT have a right to silence.

If you look at the sections of the NZ Bill of Rights Act which include these rights you will note they begin:

(s 23 right to silence)
"Everyone who is ... Arrested; or ... detained under any enactment—"

(s 25 right against self-incrimination)
"Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:..."

No member of the Kahui family has been arrested, detained or charged, and the rights in s 23 and s 25 of the Bill of Rights do not apply to them until they are arrested, detained or charged.

The real problem with Ron Mark's call is not that is is a call for them to breach anyone's rights, or to charge someone for a non-existant offence, but that Politicians shouldn't be telling Police whom they ought to charge with what.

Posted by Graeme Edgeler : 6/27/2006 04:16:00 PM

Graeme: Yes, people can be summonsed to appear as witnesses, and there are various pieces of law which require testimony in certain circumstances. But there's no general provision demanding that people say anything at all to the police, and there's certainly none that would apply in this case. As for obstruction of justice, they'd need some actual evidence beyond people simply refusing to cooperate.

Here's what Rishworth etc have to say in The New Zealand Bill of Rights:

First and foremost, all persons have a liberty to remain silent, whether or not they have been arrested or detained[*]. that general liberty is affirmed in s. 14 of the Bill of Rights - the right to freedom of expression - which includes also the freedom to refrain from expression. In the case of police investigations the liberty to refrain from expression means that persons may choose not to answer questions put to them by investigators. That is subject, of course, to any requirement imposed by positive law...

The footnote [*] refers to a 1984 case in which Justice Cooke stated that "every citizen has in general a right to refuse to answer questions from anyone, including an official".

There's no such positive law requirement here, and while the family's refusal to talk tot he police may be reprehensible, it's certainly not illegal.

As for s23 and 25, it's not about them. This is a longstanding principle of common law, reinforced by both the Evidence Act, the Judges' Rules, and (for those arrested and charged) the more recent BORA limits. As Rishworth says, "the right to silence has always been more than simply a set of discrete legal rules. The right to silence is a principle that explains the existence of various rules, while continuing to have independent force [in various ways]" (my emphasis). Which is why the courts will rule inadmissible statements extracted by duress and unfair means before arrest or charge.

It is a real right that Mark and Sharples are calling to be removed, and both of them should bloody well know better.

Posted by Idiot/Savant : 6/27/2006 04:53:00 PM

Graeme: I should also add that if you ignore the entire common law tradition and construe s23 and 25 in the manner you suggest (applying only to those arrested or charged), then they are effectively meaningless. Much police evidence is gathered before arrest, when people are "helping the police with their enquiries". Saying that there is no right to silence or against self-incrimination then (that is, that there is an obligation to tell the police something even if it incriminates you) clearly allows an end-run around the BORA, not to mention giving the police a free hand to coerce testimony with abandon.

Posted by Idiot/Savant : 6/27/2006 05:34:00 PM

This is a situation where a family has commited murder and they are refusing to talk to avoid being charged.

It should not be possible to escape prosecution just by making all the witnesses shut-up.

Sure, respect their right not to incriminate themselves, but in that case, either charge them all with murder, or if that is unlikely to get a conviction due to too much circumstantial evidence, charge them all with accessory after the fact to murder, because by refusing to talk they are helping the criminal, whoever it is, even if they didn't do it.

Graeme is also right BTW. A witness does not have a right to silence, unless they would incriminate themselvs by answering.

They either answer or admit that answering would incrimnate themselvs, or go to jail for contempt if they refuse to answer at all.

Posted by mundens : 6/27/2006 06:15:00 PM

what is interesting is the games this causes the police to play. I was listening to the police spokesman on tv (and have seen my fair share of police dramas - not that tv is accurate)

Presumably you get people offering deals (or defacto punishments for not talking). Or not being invited into situations where one might have to inform them of their rights etc etc...

Maybe there is a different way we could ensure "rights", encourage appropriate behaviour and secure accurate convictions.

Posted by Genius : 6/27/2006 06:33:00 PM

Idiot, I couldn't agree more with what you say.

Giving evidence in court is not the same as talking to police. I might do a post on this on SH - feel free to have a look I/S.

Posted by Gooner : 6/27/2006 08:10:00 PM

Mundens: A witness does not have a right to silence, unless they would incriminate themselvs by answering.

Only on the witness stand. There's no legal obligation to talk if simply questioned by police, and nor should there be. Allowing the police to threaten people with jail unless they talk quickly leads to their being told whatever they want to hear, and innocent people in jail.

Posted by Idiot/Savant : 6/27/2006 11:46:00 PM

I could not agree with you more I/S. The police should know very well the dangers of succumbing to public pressure. A premature move on their part could well result in a case that falls apart in Court, or the very real possibility that the "whanau" (possibly a too dignified term to apply)...will let some scapegoat take the fall on lesser charges, as happened in the Lillybing case. And what would be the reaction if it turned out that a minor was supposed to have inflicted the injuries?

By all means report, but the media feeding frenzy merely reduces the probablity of a fair and safe prosecution.

Posted by Logix : 6/28/2006 07:39:00 AM

Idiot, you're yoo quick to write this off as "politician's and the public's moral panic".

The representative of the Kahui family attempted to cloak this is the voodoo of Maori vs Paheha justice and family conceptions. Peter Sharples has done the right thing by comming out against this nonsense.

By trying to frame the family's non-cooperation in terms of Maori vs Pakeha systems of belief and justice, the family it self made the issue far more than one of solving a crime. In that circumstance politiciasn have a right to comment and the public expects them to do so.

And a conspracy to obstruct justice is a crime. The family's behaviour has been rather more than merely refusing to speak to the police.

Posted by Neil Morrison : 6/28/2006 09:11:00 AM

I predict if the police do get anyone in the box their brief will claim they cant get a fair trial because of all the publicity and the if that fails will claim the police put undue pressure on to get a confession. If they strike one of our Leftie learned Judges they will get off scott free

Posted by Anonymous : 6/28/2006 10:07:00 AM

I agree that Sharples and Marks have drifted across the line between dealing with principle and dealing with the specific. That's not right.

But...

There's a criminal case which has caused public outrage and resulted in discussion of underlying causes, etc. In discussion of that it's quite proper for politicians to weigh in on issues of underlying societal causes, political fixes for them, etc. Pita Sharples was right to burst the claim that this silence is matter of Maori protocol.

One does have the right to express moral outrage that the family of a murdered child is acting to hide the murderer. Despite their legal rights. There's something wrong there, evidence of a problem in our society.

Yes, Mark's comments are out of line. But your claim that they should just shut up is also not right.

Posted by Icehawk : 6/28/2006 10:08:00 AM

I/S - Snap.

Politicians shouldn't try to influence the police, least of all to maked them charge people with non-crimes.

I can't help wondering if there might sometimes be a place for politicians dealing with quasi-criminal standoffs.

But Sharples blundering in and then complaining when they didn't repect him?

Also, the public are of course allowed to get indignant (it's entirely fair) but

- I get the feeling this kind of reaction from families isn't unique.

- My guess is the actual police interviewing technique could involve trying to make witnesses or perps feel like someone will understand. If the entire country is loudly calling for their heads that might not be helping.

Posted by Lyndon : 6/28/2006 10:36:00 AM

According to the lawyers on Morning Report yesterday the Kahui family are not obstructing justice, simply exercising their rights. Sounds shit, but as I/S says is a fundamental common law right. They also said we have no "Good Samaritan" law so nobody is compelled to prevent a law being broken.

Posted by PabloR : 6/28/2006 11:35:00 AM

Thank you Icehawk for expressing what I was feeling.

I think the country has a reason to have moral outrage about the general situations that helped fuel this situation. I also think there is a moral obligation for the family to tell the truth about who murdered those babies.

Posted by muerk : 6/28/2006 12:00:00 PM

Icehawk: by all means, politicians should express the public's moral outrage. But I'd prefer they did it in a way which respected the independence of the police force, didn't try throwing out the baby with the bathwater, and didn't risk compromising any resulting trial.

It's not just about the jury pool. Our courts do try and ensure that confessions and statements to police are given voluntarily (as a means of ensuring reliability and protecting people from abuse), and will throw out "evidence" gathered by coercion or unfair means. And while I'm not aware of any precedent on it, it would be a very crap lawyer who didn't argue that having politicians threatening to have your entire family arrested or their sources of income cut off unless someone talked was not coercive and unfair and undermined the reliability of any resulting testimony.

In these cases, the police need to work to gain the trust of witnesses, and work on convincing them that what happened was wrong, that people should be punished for it, and that therefore they should talk. Sharples and Mark really aren't helping here.

Posted by Idiot/Savant : 6/28/2006 12:54:00 PM

There might be a case under section 71 of the Crimes Act:

(1)An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction.

I'd note that the most common case in which groups of people conspire together to thwart justice is when a group of policeman throw up a wall of silence when accused of abuse.

Posted by Rich : 6/28/2006 04:48:00 PM

Idiot,

Yes, I take your point. But you, too, are throwing out the baby with the bathwater when you saying that they should "shut the fuck up".

Sharples and Mark should be outraged, they should be expressing that outrage, they should be speaking damningly of the family's unwillingness to talk to the police and ask what the hell is wrong with our society when so much violence happens within extended families.

What they shouldn't be doing is interfering with the police, and especially not telling the police when they should play fast and loose with people's legal rights.

You want Sharples and Mark to shut up. I don't: I want Sharples and Mark to think more carefully about what they're saying.

Posted by Icehawk : 6/28/2006 04:54:00 PM

Icehawk: point taken. I guess my frustations with moronic politicians who advocate trampling all over basic principles of justice can be dangerous too.

Posted by Idiot/Savant : 6/28/2006 07:08:00 PM

Considering the context for this discussion, do we have to talk about throwing babies?

Posted by muerk : 6/28/2006 10:29:00 PM

Also Idiot, you completely ignore the context of what was going on with Sharples.

He was asked by the Police to act as a go between. That set up a negotiated period of time where the Kahui family could mourn and they would be given the benefit of the doubt.

But by Monday it was clear to Sharples that the Kahuis where merely stalling and at that point he said it was time for the Police to act. He wasn't telling the Police to just go in an arrest people, he was saying that the Police had held off but it was now time to do what they would normally do under such cicumstances.

There was no instance of the Poilice's independence being compromised.

Posted by Neil Morrison : 6/29/2006 10:03:00 AM