Justice Minister Andrew Little rules out revoking right to silence

The AM Show 18/02/2020

A lawyer fears forcing families in child abuse cases to speak up could put innocent people behind bars.

Both ACT and the Children's Commissioner want to rethink the right to silence law after a child was critically hurt in Flaxmere. 

The young boy will be left severely brain damaged after receiving a brutal beating and police are still appealing for those responsible to come forward.

In the wake of the incident, Children's Commissioner Andrew Becroft told The AM Show on Monday that the right to silence should be abolished or amended.

But lawyer Marie Dyhrberg says abolishing the right could have negative consequences. 

"It's very dangerous to have a knee-jerk reaction and to perhaps try and isolate certain cases whereby you are going to take away rights such as the right to silence," Dyhrberg told Newshub.

The right to remain silent means defendants can refuse to speak to police to avoid their words being used as evidence in court - effectively meaning that families of abused children don't have to speak to police.

But Dyhrberg says in many cases, family members genuinely don't know who is responsible when tragedies like what happened in Flaxmere occur.

The person who often ends up being responsible for these sorts of injuries on little children, they don't do it in front of people.

"You are going to run the very real risk that there will be people wrongfully convicted. There will be people under pressure who will admit to things just to take the pressure off the rest of the family." 

Failing to speak out does not always mean an admission of guilt, Dyhrberg said. There can be many reasons why people refuse to talk.

"People misunderstand questions, they're under stress, they are afraid of what's going to happen to them - all sorts of reasons."

Justice Minister Andrew Little has ruled out the possibility of changing the law.

"I could not conceive of such a power to compel someone to make a statement ever being acceptable to New Zealanders," Little said in a statement. 

He had, however, asked for advice on whether we should consider warning people on arrest that staying silent may harm their defence in court.

He said even this would require a change to the Bill of Rights, which is "hugely significant".

ACT leader David Seymour also said he'll fight for a law-change if he's reelected.

Victims' advocate Ruth Money says the law needs to be changed if we are serious about fighting violence against children in the country.

I'm on the side of the kids, because they don't have a voice.

"Changing this law is not going to fix our epidemic, but it is a tool that we need in the toolkit. We need so much more poured into prevention, we need so much more helping the perpetrators and the people that are hurt," she said. 

"We should be privileging the children over everything else in New Zealand. The tamariki are our treasure, they are our future."

The AM Show / Newshub reporters James Fyfe & Ella Prendergast