The right to silence and social media

This week news reports about a young prison escapee publishing his exploits on Facebook had a few old time crooks rolling their eyes.  Justin Grant (21 years old) was taken to Townsville Hospital with a hand injury when he punched a brick wall where he then gave correctional officers the slip.  But within days of his escape he was flaunting his freedom on Facebook, and confirming a host of new friends, including a Townsville nightclub, on his social networking website.  His friends tally jumped to 114 (from 90) within 3 days of his escape, with posted comments of “Go Justin, go, three days and still going”

The same enthusiasm is not shared by the old timers.  One thought expressed was “He might still be going after three days, but if he keeps blabbing like that he won’t make three weeks, that’s for sure” .

A code of silence ruled the underworld before the days on the information revolution.  Loose lips sink ships, it was said, and most reasoned if they said nothing, nothing they said was likely to be held against them .

It was a matter of personal honour for some.  One of my clients expressed outrage at a police suggestion he had confessed to the theft of a lorry load of men’s designer suits.  It was the damage to his reputation that worried him, not the potential penalty.  He protested with righteous indignation of “Anyone who knows me knows I’m solid as a brick.” .  “If I was a clock I wouldn’t tell the time.  The only ones I’ll talk to are me lawyer, me missus, and me priest.”

It wasn’t that he was particularly religious, I don’t think he had too many close friends in the law, and the truth is he and his wife hadn’t spoken much in years.  This was just a bush lawyer’s summary of his reason of the laws of privilege and confidentiality.

In those days, the confession of a man to his wife, lawyer or priest, was protected by law, and could not be led against him in evidence in court.  It was predicated on the opinion that full and open disclosure between a sinner and his God, a lawyer and his client, and a man and his wife, made for a better functioning community.    

But over the years state and federal governments have been steadily chipping away at the right to silence in the aim of sharpening the teeth of crime investigation.

Since 2004 Queensland statute law has specifically provided husbands and wives are not only able, but obliged, to give evidence against their spouses.  In a recent closed hearing of the Australian Crime Commission, the Federal Court Ruling that didn’t apply to a wife who refused to testify against her husband..  The ACC Act fell short when the court said if the legislature wanted to abolish someone’s right to stay schtumm, it had to do so in the clearest terms.

Ironically, Justin Grant was apparently relinquishing his own right to silence, publishing news of his exploits on the internet.  Go figure.

by Chris Nyst (Nyst Lawyers & Advisers)