AFTER 16 glorious years in the hermitage, the Hon. Michael Hudson McHuge is due to hang up the cue on November 1. Any regrets?

In (Joseph, not Eddie) Azzopardi v The Queen (May 3, 2001), he did record his surprise at learning that academics had been “dead wrong” about the criminal-friendly privilege against self-incrimination and the incidental right to silence.

That small scholarly mishap has had a domino, not to say tsunami, effect on justice. Judges, the law, law “reform” commissioners, first law officers, and legal bureaucrats have followed the academics into error; taxpayers’ money is squandered; criminals get off; defence lawyers get well.

The correct formulation of the privilege is attributed to St. John Chrysostom , a Syrian lawyer, Archbishop of Constantinople, and all round spoilsport: his priests’ pro-concubine lobby had him run out of town in 404 AD.

The learned saint is understood to have stated in 20 Latin words that no one has to volunteer guilt, but if accused must show his innocence, if he can.

In 1568 Sir James Dyer, Chief Humpty of the Common Pleas, quoted four of the words, nemo tenetur seipsum prodere, i.e. no one is compelled to accuse himself, full stop, but judges properly ignored Dyer; immunity from questioning did not exist.

Barristers first appeared for accused in the 18th century. Perhaps coincidentally, the well-known academic and charlatan, William Blackstone, a former barrister, falsely asserted in 1769 that the nemo nonsense was the common law. By early in the 19th century his lie was embedded in the law; defence lawyers uncorked the Moet, which was invented in 1743.

In 1827, Jeremy Bentham observed, to no avail, that the privilege was irrational and was perpetuated only by those “duped and corrupted by English lawyers”.

Human dignity requires that suspects can refuse to answer questions, but it is ridiculous to say that suspects should be immune from adverse inference being drawn from their sullen silence to detectives and/or prosecutors.

Nonetheless, such an immunity became a rule of law in the second half of the 20th century. Justice Geoffrey Davies, of the Queensland Court of Appeal, nailed the new legal fiction, i.e. lie, in “The Prohibition Against Adverse Inferences from Silence: A Rule without a Reason?” (Part 1, Australian Law Journal, 2000). He wrote:

“An obvious example is a parent asking a child, cricket bat in hand, whether he hit the ball through the broken window. Could it be seriously suggested that the parent should never draw an adverse inference from the child’s refusal to answer? [But] it suits the view of many, including most defence lawyers, that nothing should change.”

The privilege and the immunity work a treat. Of the 99 percent of accused who are guilty, about half — including Lionel Murphy — get off when they keep their mouths shut.

The High Court sensibly edged towards removing the immunity in Weissensteiner v Her Majesty (1993), and England abolished it in 1994, but it was largely restored by the Commonwealth and NSW Evidence Acts of 1995.

Section 20 (2) of the NSW Act says judges — but not prosecutors — can comment on an accused’s refusal to speak, but cannot suggest it was because he was guilty. For reasons that seemed sufficient to them, law reform commissioners in NSW, Victoria and WA did not recommend change in 1998.

Hence Justice McHuge’s dismay in 2001. It would be nice if he could end his lap of honour knowing that P. Ruddock, R. Hulls, R. Debus et al have answered the trumpet of justice and got the lies out of the system.

Whitton adds March 4, 2007: Nothing has changed.

Justinian
January 11, 2005

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A fitting end for Justice McHuge’s lap of honour