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Right to Silence (Qld)

The right to silence is recognised as a fundamental common law right in all Australian states and territories. In Queensland, this right has been codified in Section 397 of the Police Powers and Responsibility Act, which states that a person’s right to refuse to answer questions is protected, except where they are required to answer under legislation. The right to silence is based on the principle that the burden of proving an accused guilty of an offence beyond a reasonable doubt is born by the prosecution, and an accused cannot be compelled to self-incriminate.

Case law on the right to silence

In the 1991 case of Petty & Maiden v The Queen, it was established that a jury may not draw an adverse inference against an accused person because they refused to give an account to the police when interviewed.

However, this rule cannot be relied on when an accused answers some questions but refuses to answer others.


Section 431 of the PPRA outlines the right to silence as follows:

1. A police officer must caution a person prior to questioning them;

2. The caution must be given in, or translated into, a language which the person is reasonably fluent in;

3. If the police officer suspects the person does not understand the caution, they may ask them to explain it in their own words.

4. If necessary, the police must further explain the caution.

This provision sets the standards that police must adhere to when questioning a person in Queensland. The police must inform the person being questioned of their right to silence and that what they say may be used as evidence against them. The law requires police to be certain that the person understands their right to silence before they proceed to interview them. This may mean using an interpreter or asking the suspect to repeat the caution in their own words to ensure they have understood it.

What if the police don’t caution a suspect?

If the police fail to caution a suspect before an interview or if they do not give the caution in a way they can understand, this can affect the admissibility of the evidence they give during the interview. When admissions are made after a person was not properly cautioned, the defence will usually challenge the admissibility of the interview in a pre-trial proceeding called a voir dire. If the court considers that the police officers failed to adequately explain the suspect’s rights to them, it will exclude the interview from evidence and the prosecution will not be able to rely on it. This is to ensure that police comply with the law and that the police are not allowed to secure a finding of guilt after failing to uphold the rights of an accused.

Exceptions to the right to silence

Section 431(5) of the PPRA contains an exception to the right to silence where the person is required to answer questions under legislation. An example of this is when police ask a person to provide their name and address. Section 41 of the PPRA, provides that a person must provide police with their details in certain circumstances, such as when police find them committing an offence or suspect on reasonable grounds that they have done so. Failure to provide these details to police when asked can amount to a criminal offence

Should you exercise your right to silence?

At times it can be advisable to cooperate with police when they suspect you of an offence as this can result in a more lenient penalty. However, it’s important to remember that the right to silence is protected by law and that you cannot get into any trouble because you chose to exercise that right. The prosecution must ultimately prove beyond a reasonable doubt that an accused is guilty. The accused is not required to prove their innocence by giving their account of what happened.

If police invite you to take part in an interview it is always a good idea to seek legal advice before agreeing. If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal. 

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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