Right to Silence
Published on October 26, 2017 by Kenneth Wilks
When you are arrested by police you have the right to remain silent. This is a fundamental legal right which underpins our legal system. What this means is that you do not have to say anything to police or answer their questions.
When police arrest you they will ask a number of “informal” questions before asking whether you want to be interviewed or make a written statement. You do not have to answer their questions, participate in an interview or make a written statement.
You need to be aware that anything you say to the police can be used as evidence against you at a later stage. That is, anything you say whether you are in your house, on the street or in the Police station can be used as evidence against you.
If you receive legal advice and decide not to participate in an interview or provide a statement, this cannot be used against you in court. The magistrate or judge cannot draw an inference that you must be guilty or that you have a consciousness of guilt simply because you have not assisted the police by providing a statement or participating in an interview.
Often police will say that they need to electronically record you stating you do not wish to participate in an interview. This is not the case. You are able to simply tell them you do not wish to participate in an interview.
There are some limited circumstances when a negative inference can be drawn from a defendant’s silence. In criminal proceedings for serious indictable offences, unfavourable inferences may be drawn when, during official questioning in relation to the offence, the defendant failed or refused to mention a fact:
(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and
(b) that is relied on in his or her defence in that proceeding.
This does not however apply unless:
(a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and
(b) the special caution was given before the failure or refusal to mention the fact, and
(c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and
(d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.
There are also some traffic offences where you are required by law to give limited information such as your name and address.
Despite these exceptions we recommend that in all circumstances you obtain legal advice before answering any questions.
If you cannot contact a solicitor while at the police station you should remain silent until you are able to discuss the matter with a solicitor.