Victims must talk, accused can shut up. This isn’t justice
Many of us wouldn’t know about the Right to Silence - a good thing. It’s only when you experience a criminal trial, either as the victim or the accused, that you will be exposed to this part of our justice system which provides the accused with, amongst other things, the right to not take the stand throughout their trial.
It’s a shock for most victims, who by the way, are not afforded this luxury, as they enter the courtroom seeking answers which often will not come.
More than 750,000 matters are initiated within the court system each year, with the vast majority (85%) resulting in guilty pleas and immediate sentencing. But there are some crimes that have spectacularly low plead rates, and arguably are those cases where victims are most vulnerable.
Victims of violent crime can wait years for the criminal trial against their accused to be heard before a jury in either the District or Supreme Court. If they are lucky, they would be armed with accurate information and support about what’s to come, but for many victims they enter the courtroom with an extremely lay understanding of proceedings, and certainly no clarity around their rights and obligations within court.
Most victims views will be influenced through pop culture, particularly an Americanised version of justice through shows such as Law and Order, and NCIS. They will head into court frightened, anxious, overwhelmed and importantly, expecting justice – and most will exit feeling that the latter need was not met.
Victims of violent crime will often fall into two categories, the primary victim or the person who was victimised, and secondary victims who are affected by the violence but not personally injured, for example the surviving members of a family where a loved one has been murdered.
Most primary, and at times secondary victims will be expected to take the witness stand and recount their version of events. They will be afforded little protection from the defence, be compelled to answer difficult questions, including divulging details of what may feel like irrelevant lines of questioning into their personal lives.
Victims of rape are commonly questioned around their sexuality and/or behaviour on the night of the alleged crime.
What they were wearing will come into question, whether they were intoxicated, and their behaviour will all be exposed and considered by twelve strangers who now make up the silent jury responsible for determining guilt.
Whilst many jurisdictions have introduced systems to minimise the trauma upon victims having to recount their evidence, many courts will still require victims to take the stand, sit before the accused, the media, 12 strangers on the jury and the judge and retell their story.
Victims are an integral part of the criminal justice system, whose participation in the trial process is motivated by deeply individual factors. For some it’s the opportunity to be heard, whilst others believe in the pursuit of justice overall and the opportunity to have a violent offender prevented (through incarceration) from harming others.
Homicide trials can be unique, as the primary victim is deceased and therefore it falls upon the surviving family to represent them in court. Over the years I have supported hundreds of families through homicide trials, and certainly an overriding factor of wanting to attend the criminal trial is the opportunity to learn firsthand what actually occurred on the night their loved one drew their final breath.
Often the surviving family have been told only basic facts surrounding their case, and their attendance at court is motivated through a mixture of wanting to learn the truth, wanting to represent their loved one, and wanting to remind the accused that they won’t forget what the accused has done to their family.
Family members are often shocked to learn that the accused won’t be taking the stand, that their right to silence protects them from ever having to account for their actions personally. Instead, a well-paid, well-dressed and experienced defence team will be representing them.
Whilst other witnesses are not afforded this option, the main cause of the trial – the accused – will be. It is their choice around whether or not they take the stand, and this decision can be made at any stage throughout the trial.
All other witnesses are prohibited from entering the court and hearing other testimony until they have provided theirs. I have sat with victim-witnesses who have sat outside courtrooms for days, waiting to be called so they can then join their family inside the public gallery and hear the evidence, only to be notified on the last day they now will not be called (in fact I was one of those witnesses myself).
The accused however is exempt from this prohibition. Again I have sat in on homicide cases, through days of testimony, only on the final day to learn that the accused has now decided to take the stand.
Unlike other witnesses who have had to make a statement on day one and stick closely to this (or risk being labelled an unreliable witness) the accused has not had to make a statement at any point, and can now, on the final day of trial, take the stand and provide a story which neatly fits around everyone else’s testimony.
The Right to Silence is a common law principle enshrined in Australia’s justice system.
One of the explanations I have been given as to why we shouldn’t interfere with this practice, is that removal of the right to silence would place the accused in a position of either refusing to answer (and potential contempt of court), lying to the court (potentially perjury) or being truthful (and potentially incriminating themselves).
Its an astonishing response from a sector conditioned to focus on the rules of the game rather than the pursuit of justice. I have always considered trials should be about truth-seeking, and I don’t think I am the minority.
The New South Wales Premier Barry O’Farrell has recently announced his intention to reform this right, introducing the element that whilst the accused has the right to remain silent, it may harm their defence if they refuse to answer something when questioned, which they later rely on in court.
It has been met with predictable protestations from the bar and bench, however the forgotten element in these conversations are the effects which this principle has upon victims. Whilst no victim nor victim’s advocate would promote the erosion of offender’s genuine and necessary rights to a fair trial, many of us would suggest that reforms to this area of law are long overdue.
The impact of the criminal trial process – or procedural justice – upon a victim is long-felt. Most victims would say they can accept a not-guilty verdict when and if the jury has heard all the evidence. But to expect a jury to make a determination of guilt (and potential life sentence) upon someone without hearing their testimony is to me, a second-rate system of law.
Jonty Bush received the Young Australian of the Year award in 2009 for her work in the field of victim support has worked with victims of violence since the murder of her sister and father in 2000.
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