Right to Silence

All persons who are suspected of committing an offence have a right against self-incrimination. This is also known as a right to silence. Because of this, Police cannot force someone to answer their questions, engage in a police interview or do certain things that may incriminate them. 

Police cannot arrest a person for the sole purpose of questioning or require a person to accompany police to a police station for questioning. Where a person has been arrested, the Police can and will take that person to a police station. They will also ask that person questions and offer that person an interview, however they still cannot force that person to answer questions or engage in a formal interview just because they’re under arrest. 

Police interviews and the right to silence

Anything said or done in the presence of police could be used against that person. This includes any and all conversations or interactions, and not just what occurs in a formal interview. 

While the police must administer a caution before asking questions of a suspect or formally interviewing them, it is not uncommon for a suspect to continue to answer questions or incriminate themselves. When cautioning someone, the police must explain the suspects rights, including:

• That they have the right to silence and do not have to answer any questions; and
• Anything they do say or do may be used as evidence against them.

If the person is under 18, the police must contact a responsible adult to be present with them while they are interviewed.

Limits on the right to silence

There are a few exceptions to the right to silence. This includes providing name and identity information if requested, complying with a Form of Demand or complying with a digital access order. Certain commissions and investigative bodies also have powers to force a person to provide information, documents or participate in compulsory examinations whereby they may be required to answer questions even if those answers will incriminate them. Where a person thinks they are legally being forced to answer questions, they should still seek legal advice first.

A person must answer police questions in the following circumstances:

• Where the police suspect on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because they were at or near the place where it occurred, that person must provide police with their name and identification details only;
• If the officer suspects on reasonable grounds that an AVO has been made against the person, that person must provide police with their name and identification details only;
• If the person was a driver, passenger or owner of a vehicle and the officer suspects on reasonable grounds that it is associated with an indictable offence, that person must provide police with their name and identification details and the details of the driver only;

In certain situations, a person who is involved in a crash may also be required to provide details of the driver and owner of the vehicle, registration details and an explanation of the circumstances of the crash. However, whether this is required or not depends on the exact power the police are relying on and the exact circumstances of the crash or collision. Because of such, it is imperative that a person seeks legal advice before answering questions or providing an explanation of the circumstances of the crash. This is because the person may not actually be required by law to give those details (if the circumstances do not warrant it for example). In addition, they should speak to a lawyer to understand exactly what details need to be provided to avoid giving additional information or details that might be used against you. Lawyers can also advise on how this information should be supplied, noting it can be done in writing or through a lawyer, as opposed to a police interview. 

Should you exercise your right to silence?

Generally speaking, yes – or at least until you’ve obtained legal advice.

The decision as to whether to take part in an interview is a difficult one to make. Each case is unique and our advice often varies from case to case. Specific legal advice should always be sought on a case by case basis.

Police know that getting a person to participate in an interview will usually help the police case. Police are often experienced questioners. They usually know much more information about the allegation than the person they are interviewing. Because of this, they often have the upper hand.

Police will try to get a person to agree to an interview by:

1. Making it seem like ‘just another part of the process’;
2. Encouraging the person by saying that they ‘want to get their side of the story’;
3. Appearing friendly, nice, supportive or complementary of the person to make it seem like they are on their side; or
4. Suggesting the interview is something that they should ‘just get over and done with’ to get through the arrest process sooner. 

No unfavourable inference can be drawn from a person refusing or failing to answer questions in the course of official questioning, unless a special caution is administered in the presence of a lawyer.

Generally speaking, it is rare that a person who participates in a police interview is not charged with a criminal offence. People who are truly innocent are often still charged after doing an interview. The role of the police is to gather all relevant evidence, not to determine guilt or innocence as a court does. 

Where a person gives a police interview, that interview will be played in court. While this can sometimes avoid the need for that person to give evidence and be cross-examined, there are a number of significant risks that come with participation in an interview, including:

• Police may not have sufficient evidence against you prior to the interview.  A person may admit to criminal offending (intentionally or unintentionally) that the police may not otherwise have been able to prove.
• Even if a person does not admit to the full offence, they may confirm or admit something that helps the police prove their case against them (for example, that they know a certain person, that they were at a certain place or that they engaged in certain conduct).
• The interview process can be very stressful. Often suspects who are interviewed appear nervous, which could be interpreted as evidence of guilt. 
• Suspects may give an incorrect or incomplete version of events in an interview. It’s not uncommon that after an interview a person feels as if the police didn’t really give them an opportunity to tell their full version, or that they were only interested in part of the story. Further, after reading the brief of evidence people often remember further detail or are able to explain what occurred more clearly.  
• The interview can be used as evidence and as a basis for cross examination of an accused, particularly if details are inadvertently left out of the interview, or are different when the evidence is adduced in court.

What Police cannot do if you refuse to be interviewed

The police cannot:

1. Decide to charge someone just because they don’t agree to an interview; 
2. Detain a person for longer because they haven’t agreed to do an interview; or 
3. Promise someone bail if they agree to do an interview, or refuse them bail just because they don’t give an interview. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.