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The Right To Silence (NSW)

The right of a person to remain silent when they are being investigated for criminal offences is a well-known common law right. It includes the right to decline to answer questions by police during an interview and the right to choose not to give evidence during a trial. The right to silence is based on the principle that the prosecution bears the burden of proof in a criminal matter. The accused does not have to prove themself not guilty. The right to silence also reflects the traditional belief that individuals should not be subjected to compulsory interrogations about possible criminal conduct.

Police interviews and the right to silence

A person suspected of criminal offences can refuse to answer questions by the police. An exception to this is when the police request a person’s name, address and date of birth. These questions must always be answered, regardless of whether the person is under arrest or not.

If the police suspect a person has committed an offence, they will attempt to interview them. The police must tell the suspect that they are not obliged to answer any questions and to ensure that they understand. This is called a ‘caution’. The suspect may say ‘no comment’ or remain silent in response to questions.

Admissibility of confessions

Confessions made to police are admissible as evidence in court proceedings only if they were made voluntarily (ie the person was not forced, pressured or tricked into making admissions). Confessions made without a proper caution are inadmissible as are confessions that are made when the accused was sick, intoxicated, or injured. If the prosecution seeks to rely on such evidence, the defence should challenge its admissibility.

NSW legislation on the right to silence

The common law right to silence has been codified in section 89 of the New South Wales Evidence Act 1995, which states that no adverse inference is to be drawn on the basis of evidence that a person failed to answer the police’s questions. This is based on the common law principle that an accused has the right to silence and prosecution bears the burden of proving them guilty beyond a reasonable doubt.

In 2013, the right to silence was qualified in New South Wales by the insertion of section 89A, which states that in serious indictable matters, courts may draw an unfavourable inference against a suspect based on the fact that they failed to participate in a police interview but subsequently advanced a defence that they could reasonably have been expected to have outlined in the interview. 

The provision allows this adverse inference to be drawn only where the suspect was given a ‘special caution’. This is a warning that remaining silent may harm their defence. If such a caution was not given, no adverse inference may be drawn.

No adverse inference may be drawn from the silence of a suspect who is aged under 18. The legislation also stipulates that silence may not be taken as evidence of guilt where it is the only evidence of guilt.

Although the right to silence still exists under New South Wales law, remaining silent is now a less attractive prospect when a person is charged with serious indictable offences.

Giving evidence in court

A defendant in a criminal matter cannot be called as a witness by the prosecution. Under section 17, a defendant cannot be compelled as a witness to give evidence against a co-defendant unless the defendants are being tried in separate proceedings. 

A defendant may give evidence in their criminal matter if they choose to do so. If a defendant does not choose to give evidence, the judge may comment on this but it must not be suggested that their failure to give evidence was because they are guilty.

If a defendant chooses to give evidence, the prosecution may cross-examine them in any way, regardless of whether the cross-examination questions may incriminate the accused of the offence. However, the prosecution must not cross-examine the accused in a way that may incriminate them of criminal offences other than the offence that they are being tried for. 

On appeal

When a defendant chooses not to give evidence at their trial but subsequently appeals against a finding of guilt, the appeal court can take into account their silence at trial when evaluating whether the standard of proof was satisfied. If the defendant did not give evidence in their defence during the trial, the inference of guilt is strengthened.

If you need legal advice or representation in a criminal matter or any other legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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