His honour, quite properly, expressed some dismay at just how such a profound change to the law by which we all live will be changed and how that change might function in practice.

The trial concerned a client of mine who was accused of kidnapping and assaulting his former partner. The jury found the accused not guilty on both counts. He had been prosecuted for almost 14 months since the time of the offence, had been represented at every stage (as had the prosecution) and the police had been involved at each stage of the investigation and court process.

The jury of 12 members of our local community considered the evidence, all of it, fairly presented by the experienced and responsible Crown Prosecutor Michael Fox, while a defence was presented by myself and local barrister Bernadette O’Reilly on behalf of the accused.

All of this was presided over by a judge who was impartial, objective, keen to ensure the jury’s time wasn’t wasted and quick to ensure the law was properly applied to an exacting standard.

None of this required the removal or changes of rights that have been in place for centuries.

The right to silence did not change a single piece of the prosecution evidence, its exercise by the accused did not make his case stronger or weaker. Remaining silent simply did what we have always done – ensure that the people making the allegation (the prosecution) have to prove it.

This is fair, fundamental and the way things should work. The justice system was duly served in a quick, efficient and practical trial that ran for two and a half days.

But if you listen to the rhetoric of politicians they will tell you that we, the people, need to have our rights “modified” so as to ensure justice is done. Justice was done this week – 12 members of this community found one of their members not-guilty of accusations made by the state. That’s what the justice system does.

The way they talk about it, you might be forgiven for thinking that politicians think the criminal justice system is about getting bad people. It’s not – it’s about testing government allegations made against our community members – our neighbours, our families, our friends.

We have a criminal justice system because the government, with huge resources (in terms of staff and finances) can come at anyone of us at any time with any allegation they care to.

Over time, we have all recognised that it is important that the state be allowed to accuse people of wrong-doing on our behalf. However, in exchange for that significant give-up of our privacy, freedom and independence, we require those that make allegations prove them to an acceptable standard – beyond reasonable doubt.

We don’t ask the accused to say anything nor do anything and in the process we hope that the State lives up to the standard we agree should be met – so that innocents don’t go to gaol and guilty don’t get away with their wrong doing. But none of that has ever required us to prove the case against us or speak in any way.

Not bad for a system of law that was imported on the back of convicts and which has often struggled to fairly deal with everyone, including our indigenous brothers and sisters.

Silence is golden, for a good reason, you have a right to say anything or nothing at all without fear or favour. Giving up that right should come at the greatest of costs to the state and not a free ride given by the mostly silent public debate.

The Illawarra Mercury has done its best to raise the flags and raise serious and important questions (see the recent article by Emma Spillett). But in an area where criminal justice has often been a cause for consideration and debate, the steps taken to make accused or suspected people talk are largely going unnoticed.

I’ve heard people (including barristers from the UK where a similar but importantly different system has been implemented) say that if you have nothing to hide, then you have nothing to fear by talking.

Maybe that is right, I don’t know. But I do know that wherever people have been made to speak, they often end up being made to say all sorts of things. It’s not what you want to say that should necessarily worry us, it’s what you might be forced to say or how your words might be twisted that you need to worry about. That’s why we have the protection afforded by silence – freely exercised.

Each year around Easter time, I used to ask my first year law students where they thought a right to silence came from.

No-one seemed to know (some didn’t seem to care to be fair). I must say I don’t know either, but I think it’s not a bad point to note that in what we know of his trial, Jesus allegedly remained largely silent.

I’m not a theologian but I suspect it’s accurate to say that Jesus would have been one of those people who had done nothing wrong and had nothing to fear by speaking. I guess if silence is good enough for him, then maybe it’s good enough for all of us. It seems it may be worth standing up for after all.

Who knows what might happen when the only thing people want to ask you is where you come from or who you are. What if the answer is that you’re Jewish, the date is 1940 and you’re in downtown Berlin? I’m not saying the state government are Nazis. I’m saying asking people innocent questions about honest answers isn’t always as simple as the question being asked or the answer being given.

Remain silent and take care this Easter holiday.

Aaron Kernaghan is the principal lawyer at Kernaghan & Associates Lawyers, a law firm specialising in criminal law advice and representation.

www.kernaghanandassociates.com.au