Criminal defendants have certain rights under GA 37 “Fairness in Criminal Trials”. But they are not very extensive. For example, they include the right to remain silent. But exercising that right can still be the basis for a judge or jury to make a negative inference (eg “he’s only being silent because he’s guilty”) when this can be profoundly unfair. Similarly, asking for a lawyer could be seen as something only “guilty” people would do, even though it is a clear right established by WA law.

WA citizens used to have a number of the rights protected in the proposal before us, but the resolution they were bundled with, GA 443 “Preventing the Execution of Innocents”, was repealed. The Assembly should re-enact those rights for posterity. Among these was a bar on defendants counsel being unduly influenced: governments might try to bribe them or make them “an offer they can’t refuse” to just do a bad job in this one case. “Surely it’s not such an inconvenience, capeesh?” This should not be acceptable from member nations and should be explicitly barred.

Moreover, member nations are not currently required to turn over evidence collected to criminal defendants to examine. Prosecutors have incentives not to do this, especially if they want to pad their conviction records. First, requiring open disclosure also means that defendants are more able to resist pressure from plea deals where prosecutors have a weaker case than they let on (meaning fewer innocents convicted). Second, surprise submission of evidence (while nice in courtroom dramas) is profoundly unfair: defendants cannot meaningfully question its veracity, credibility, or relevance without time to examine it and its provenance. Broadly, opening these cases ensures that fewer innocents are convicted in general.

Finally, member nations should not be permitted to move people, even accidentally, to places which could convene proceedings inconsistent with WA law against those people. Sending people to foreign black sites, even if done under the colour of ignorance, is unacceptable and the WA should enshrine that principle into law.

For these reasons, the WA Office recommends a vote for “Omnibus Due Process Act”.