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 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 (and usually should) refuse to participate in any interview with the police. This does not extend to simple requests for a person’s name, address and date of birth. It is important to understand that the law in relation to participation in police interviews is different in other states in Australia and this only applies in NSW. 

If the police suspect a person has committed an offence, they will usually 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’.

There can be some exceptions to the above advice, particularly with minors (where cautions might be available if admissions are made) so it is incredibly important to get legal advice about your particular circumstances if you are being questioned by the police, immediately. 

Selective answering of questions

Generally it is ill advised to agree to participate in an interview and then say “no comment” to some or all questions. There are particular inferences that can be drawn (negative to an accused person) if they participate in selective answering of questions. It is generally much better to not participate in an interview at all. 

Admissibility of confessions

Confessions made to police are usually admissible as evidence in court proceedings subject to a number of exclusionary provisions that might apply. Even if you do not outright admit to committing an offence, you may provide answers which are treated as partial admissions – for example, you might agree that you were at the scene of a crime even if you deny committing the crime itself. 

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. In order for a special caution to be given you must have a lawyer present. This is precisely why lawyers will generally not attend a police station with you when you are being questioned or arrested and will instead only make themselves available by phone. 

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.

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 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.

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