A secondary problem caused by the laws of complicity is that offenders remain silent or engage in gratuitous concurrence during police interviews. ‘Gratuitous concurrence’ means that they will say “yes” or appear to agree with a proposition when they have no understanding of what has been said. Typical crimes by young people in groups are break-ins to find car keys, alcohol and tobacco, and car theft followed by joyriding. When there is a chase and police catch one of the offenders, this person must assist the police in finding the others to establish who is complicit in the crime. There is a problem with this.
Offenders are likely to have low literacy and numeracy and a limited understanding of English. These significant linguistic and social disadvantages may result in gratuitous
concurrence or remaining silent.
Difficulties in communication and comprehension are very real. Many don’t understand how questions are asked, especially direct questions. This can easily lead to misunderstanding and incorrect answers being given.
The Anunga Rules are supposed to protect Aboriginal offenders during police interrogations. However, these rules do not protect the alleged offender against the trappings of silence or gratuitous concurrence. The so-called “wall of silence” put up by peers in a joint enterprise is a risk to successful police investigations and criminal trials because of the laws around complicity.
Cultural narratives of the young people who roam our streets include distrust of the police and a ‘no-snitching’ culture (and the image of themselves as manipulative “professional criminals”. The primary concerns of young suspects are the legal risks of talking and the protection of their peers. So when the role of the law and law enforcement generates silence, this becomes a dangerous trap, as silence may be interpreted as guilt, and
this pushes offenders towards being charged. Silence, just like speech, can be subject to misinterpretation, and in the context of offenders’ interviews, the police may interpret
silence as guilt, thereby using it against them. The void created by young people’s silence provides a vacuum for the police and prosecution to run with their own narrative instead of the real narrative.
The interpretation of silence as guilt ignores the vulnerability that people feel when faced with the power of the police and the criminal justice system. Recent research shows that fear of racism and being called an animal, or even fear of death, push young offenders into remaining silent.
The killing of Kumanyaji Walker in Yuendumu, the Rolfe trial, and the release of racist text messages by Rolfe during the Coronial Inquest after the trial, hammer home the legitimacy of these fears.
Research involving twenty ‘active street offenders’ found that some feared that they would shift from complainants into suspects’ by talking themselves ‘into a hole’, being caught lying, and ‘drawing attention to their own misdeeds’ in their conversations with police.
Image: The Sydney Morning Herald
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