YOUR RIGHT TO SILENCE
“A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned …An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information”
Petty and Maiden v The Queen (1991) High Court of Australia
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In my experience dealing with thousands of criminal charges, the most frequent mistake people make when facing a police investigation is speaking to officers before obtaining legal advice.
Police can and will approach you to ask questions about an allegation. This can happen anywhere: in public, at your front door, at your workplace or at a police station. The most important point to remember is that there is no such thing as an informal chat when dealing with police. If a statement assists their case, they can and will use it against you.
Despite this, many people still choose to answer police questions. It is a natural reaction, often driven by a few common misconceptions:
“We just want your side of the story”; People worry that staying silent will make them look guilty.
The neutrality misunderstanding: People often hope that police can act as completely neutral mediators, but an officer’s primary legal duty is to investigate potential offences and gather evidence.
Fear of arrest: People fear that if they do not cooperate and answer questions, they will be arrested immediately.
Social conditioning: It is a natural human reaction to respond when spoken to, even if the person speaking is a police officer.
In many matters—particularly domestic violence allegations—police frequently make the decision to arrest and charge based primarily on the initial report (the allegation). In these matters, providing an immediate explanation at the scene rarely alters the decision to lay charges.
Police are process-driven, and it is helpful to understand that police face strict procedural rules. When presented with conflicting stories, they often feel it is safer to let a magistrate or judge decide the outcome rather than making that tough call themselves. Therefore, it means allegations are rarely dismissed at the station level even if you offer them a different version to the complainant.
From a prosecutor’s perspective, an early statement creates a permanent, potentially binding record of events. This documented account is thoroughly cross-referenced against all subsequent evidence. Prosecutors use this documented account to evaluate the consistency of your version against other evidence, which naturally helps them anticipate and prepare their arguments for court.
Because any inconsistencies can later be used to challenge your credibility or pre-empt your defence, navigating police interviews without prior legal advice can place your case at a serious disadvantage.
If you are faced with police wanting to question you about an allegation, do not try to talk your way out of it.
Stop.
Think.
Protect your rights and get legal advice immediately!
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If you are a suspect for a criminal offence, or are being investigated for a crime, the Police may want to ask you questions. You have a right to silence – this means that you do not have to answer Police questions, you do not have to make a statement and you do not have to do an interview - unless you choose to.
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The right to silence is literally the right to remain silent – the right to not say anything, give information or answer questions. Even if the Police ask you a direct question, you have a right to not answer it. You are not obliged to say anything. If you do not want to answer questions, you should tell the Police outright that you do not wish to be interviewed at all.
The police cannot say that you are guilty because you will not talk to them. They are not even allowed to think that you are more likely to have done something wrong because you will not answer their questions. The police need to prove that you are guilty; you do not need to prove that you are innocent. It is not a good idea to sit through an interview and refuse to answer some questions, but answer others. This can make your situation worse, not better.
Similarly, it is not necessary to be interviewed to deny the offence or your involvement – the police are the ones who need to prove your involvement. If you do not want to speak or be interviewed, just say to the Police “I do not want to be interviewed” rather than sitting through an interview saying “no comment” or “no” to each question. You do not have to go into the interview room to record your refusal (1).
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Police may want to question you to find out what happened, confirm whether you were involved or find out who else was involved. They may want to show you evidence, such as images of the offence or CCTV footage, to confirm the offenders' identities. This is part of their job, and they have a right to ask those questions, but you do not have to answer them or give information, unless you want to. It is always your choice. Any comments that you make, or actions that you do (including identifying yourself or others on CCTV) can be used against you or others in court.
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The request for your identification should be treated a little bit differently to other sorts of Police questions. It is generally one of the only exceptions to the Right to Silence. In many situations, Police can require that you give your name and address in some situations, including if:
You are driving a car or supervising a learner driver
You’re suspected of committing an offence on a train or railway property
Police think you are under 18 and carrying or consuming alcohol
Police think you were near the scene of a serious offence
Police are trying to serve a fine default warrant
Police have emergency public disorder powers, you are in a target area, and the police suspect that you have been or may be involved in a large-scale public disorder
Police suspect an Apprehended Violence Order has been made against you
When the police give you a ‘move-on direction ’, and they don’t know your identity.
If you are required to provide your details to police and you don’t, you may be committing a criminal offence. If police suspect you are committing an offence, and you don’t tell them your identity, police can arrest you so that they can make enquiries to find out who you are.
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There are some other exceptions to your right to silence including:
If police think the car you are travelling in was used to commit certain types of offences, police might require you to tell them your name, or the names of other people in the car
If police think your car was involved in an offence, they might ask you to tell them who the driver is, even if you weren’t in the car at the time. This is sometimes called a form of demand
If you were involved in a car crash, police can require you to provide an explanation of the crash under road transport legislation.
If you are suspected of terrorism offences.
If police want to speak to you, you should get urgent legal advice.
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Special cautions- Section 89A of the Evidence Act 1995 (NSW)
A special caution is a caution given by the police that states:
you don’t have to say or do anything, but it may harm your defence
if you don’t mention something during questioning that you later bring up in court, and anything you say or do may be used in evidence.
This is different to the caution you receive from a custody manager if you are detained by the police, and the caution given by the police before every interview. It is only given where police are investigating a serious indictable offence.
A serious indictable offence is an offence with a maximum penalty of life imprisonment or a term of imprisonment of five years or more.
You can only be given a special caution if:
You are aged 18 years or older
Police have reasonable cause to suspect you have committed a serious indictable offence
You are being questioned by the police about that offence
You have a lawyer physically present with you in the police station.
Police can’t give a special caution to a person who is incapable of understanding what a special caution is.
There are no specific words that the police must use when giving a special caution.
After you have received a special caution, you must be given a reasonable opportunity to speak to your lawyer in private about the effect of the caution. If you are given a special caution and you fail or refuse to tell a particular fact to police after you have been cautioned, during questioning, that you later bring up this fact in court, police can ask the court to come to a negative conclusion about why you didn’t tell them, for example, that you recently made up that fact.
They can only do this where the fact is something that you could reasonably have been expected to mention during questioning. The court can’t come to a negative conclusion if:
The fact is undisputably true
You were given the special caution after you failed or refused to tell the police the fact
You weren’t given an opportunity to speak to your lawyer in private after you were given a special caution and before you failed or refused to tell the police the fact.
Although not saying something after police have given you a special caution could harm your defence in court, you are not committing an offence by staying silent.
It is important to remember that police can only give you a special caution if you have a lawyer physically present with you in the police station. If you get legal advice over the telephone, police can’t give you a special caution. For this reason, a lawyer might advise you that it is best for them not to attend the police station with you.
If you want more information and want to know how these laws could apply to your individual circumstances, you should always speak to a lawyer.
